Existing paragraph II.B of appendix S requires the reviewing authority
to review each proposed new major source and major modification to
determine whether it will meet ``any applicable new source performance
standard in 40 CFR part 60, or any national emission standard for
hazardous air pollutants in 40 CFR part 61.'' While we have
incorporated this requirement into proposed 40 CFR 49.169(a), we
believe that it should be expanded to include the newer national
emission standards for hazardous air pollutants codified at 40 CFR part
63 (commonly referred to as MACT standards). Accordingly, we are
proposing to revise paragraph II.B of appendix S to add these standards
under the Act, and proposed 40 CFR 49.169(a) would match the revised
language of this paragraph.

V. Legal Basis, Statutory Authority, and Jurisdictional Issues

A. What is the basis for our authority to implement these programs?

    Today's proposed rules are intended to fill a regulatory gap in the
protection of air quality in Indian country. Although many States have
developed regulatory programs for minor sources, those programs do not
apply in Indian country unless explicitly approved by EPA for such
areas. In addition, there is no Federal minor NSR program or major
nonattainment NSR program in Indian country. Part D of title I of the
Act requires that each SIP include preconstruction review and
permitting rules for the construction and operation of new and modified
major stationary sources located in designated nonattainment areas. The
TAR authorizes eligible Indian tribes to implement EPA-approved
nonattainment NSR (part D of title I of the Act), PSD (part C of title
I of the Act), and other programs under the Act in the same manner as
States. However, if Indian tribes are unable, or choose not, to develop
a nonattainment NSR program in a TIP, we will implement the program
where necessary or

appropriate. Today's proposed requirements are intended to provide the
mechanism for implementation of the Federal major nonattainment NSR and
minor NSR programs in Indian country.
    The purpose of the proposed rules is to ensure that the NSR program
is implemented throughout the United States and that any economic
growth occurring in Indian country will do so in harmony with the
preservation of existing clean air resources. Today's proposed rules
provide both Indian tribes and businesses operating or considering
locating in Indian country an understanding of the NSR programs for
stationary sources. They also provide businesses and tribes procedures
to comply with the major nonattainment NSR and minor NSR programs.
    The Act gives us the authority to protect the Nation's air
resources. Furthermore, title I of the Act requires that the NSR
program be established to protect public health and welfare, national
parks, and wilderness areas as new sources of pollution are built or
existing sources are modified. The program is designed to ensure that
emissions will be well controlled and that there will be protection of
the NAAQS in Indian country. We understand that not all tribes have the
resources to design and implement NSR programs; therefore, in today's
proposal, we are providing a Federal program to apply in Indian country
and that tribes may use as a model if they choose to develop their own
implementation programs and obtain our approval.
    Under today's proposed rule, the Federal program at 40 CFR 49.151
through 49.165 for minor stationary sources would apply throughout
Indian country, except where we explicitly approve an implementation
plan for such programs. The Federal rule at 40 CFR 49.166 through
49.175 for new and modified major stationary sources in nonattainment
areas located in Indian country would likewise apply in an area of
Indian country until an implementation plan has been approved by us.
    As discussed previously, the Act provides us with broad authority
to protect air resources throughout the Nation, including air resources
in Indian country. See, for example, the preamble discussion for the
proposed and final TAR (59 FR 43956, 43958-61, August 25, 1994; 63 FR
7254, 7262-64, February 12, 1998) and the preamble discussion for the
proposed revisions to the part 71 Federal operating permits program for
Indian country (62 FR 13748, 13750, March 21, 1997). In the preambles
to the proposed and final TAR, we discussed generally the legal basis
under the Act for EPA and tribal regulation of sources of air pollution
in Indian country. We concluded that the Act constitutes a statutory
delegation of Federal authority to eligible tribes over all sources of
air pollution within the exterior boundaries of their reservations.
    Further, under the Act, tribes may also apply to administer tribal
air quality programs for non-reservation areas over which they can show
jurisdiction.\9\ See 63 FR 7254-7259, 59 FR 43958-43960, Arizona Public
Service Co. v. EPA, 211 F.3d 1280 (D.C. Cir. 2000), cert. den., 532
U.S. 970 (2001).
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    \9\ We believe that in the context of programs under the Act,
States generally lack the authority to regulate air quality in
Indian country. See Alaska v. Native Village of Venetie Tribal
Government, 522 U.S. 520, 527 fn. 1 (1998) (``Generally speaking,
primary jurisdiction over land that is Indian country rests with the
Federal Government and the Indian tribe inhabiting it, and not with
the States.''), California v. Cabazon Band of Mission Indians, 480
U.S. 202 (1987), and HRI v. EPA, 198 F.3d 1224 (10th Cir. 2000); see
also discussion in EPA's final rule for the Federal operating
permits program (64 FR 8251-8255, February 19, 1999). To provide
additional certainty to regulated entities, we believe it is helpful
to clarify the extent to which State NSR programs have force in
Indian country. We make clear today that we interpret past approvals
and delegations of NSR programs as not extending to Indian country
unless the State has made an explicit demonstration of jurisdiction
over Indian country, and we have explicitly approved or delegated
the State's program for such area. This is consistent with Congress'
requirement that we approve State and tribal programs only where
there is a demonstration of adequate authority. See sections
110(a)(2)(E), 110(o), and 301(d) of the Act and 40 CFR part 49.
Since States generally lack the authority to regulate air resources
in Indian country, we do not believe it would be appropriate for us
to approve State programs under the Act as covering Indian country
where there has not been an explicit demonstration of adequate
jurisdiction and where we have not explicitly indicated our intent
to approve the State program for an area of Indian country. In State
NSR program approvals and delegations, we generally were not faced
with State assertions of authority to regulate sources in Indian
country. However, to the extent States or others may have
interpreted our past approvals or delegations that were not based on
explicit demonstrations of adequate authority and did not explicitly
grant approval in Indian country, as approvals to operate NSR
programs in Indian country, we wish to clarify any such
misunderstanding.
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    In the preamble to the TAR, we also concluded that the Act
authorizes us to protect air quality throughout Indian country. See 63
FR 7262, 59 FR 43960-43961 citing sections 101(b)(1), 301(a), and
301(d) of the Act.
    In addition, sections 301(d) and 110(o) of the Act give the tribes
the authority to develop their own tribal programs. We encourage
eligible tribes to develop their own minor and major nonattainment NSR
programs for incorporation into their TIPs. In the absence of EPA-
approved programs, we believe that, in most cases, it would be neither
practical nor administratively feasible for us to develop and implement
a separate program for each area of Indian country. As a result, we are
proposing to implement a flexible FIP for Indian country that provides
new and modified minor sources and major sources in nonattainment areas
with procedures to demonstrate that they will be operating in a manner
that is protective of air resources and the NAAQS.
    Section 301(a) of the Act provides us broad authority to issue such
regulations as are necessary to carry out the mandates of the Act.
Further, several provisions of the Act call for Federal implementation
of a program where, for example, a State, or in this case a tribe,
fails to adopt a program or adopts an inadequate program. See, for
example, sections 110(c)(1), 502(d)(3), and 502(i)(4) of the Act. These
provisions exist in part to ensure that the benefits of the Act would
be realized throughout the United States, whether or not local
governments choose to participate in implementing the Act. Especially
in light of the problems associated with transport of air pollution
across State and tribal boundaries, it follows that Congress intended
that we have the authority to operate a Federal program in the absence
of an adequately implemented EPA-approved program. See, for example, 59
FR 43958-61, August 25, 1994; 62 FR 13750, March 21, 1997; and 63 FR
7262-64, February 12, 1998.
    This interpretation is most evident from Congress' grant of
authority to the EPA under section 301(d)(4) of the Act. Section
301(d)(4) authorizes the Administrator to directly administer
provisions of the Act so as to achieve the appropriate purpose where
tribal implementation of those provisions is inappropriate or
administratively infeasible. We determined that it is inappropriate to
subject tribes, among other things, to the mandatory submittal
deadlines and to the related Federal oversight mechanisms in section
110(c)(1) of the Act, which are triggered when we make a finding that
States have failed to meet required deadlines or disapprove a plan
submittal. See 40 CFR 49.4(d).
    By determining that tribes should not be treated similarly to
States for purposes of the specific FIP obligation under section
110(c)(1) of the Act, we are not relieved of the general obligation
under the Act to ensure the protection of air quality throughout the
Nation, including throughout Indian country. Rather, consistent with
the provisions of sections 301(a) and 301(d)(4) of the Act, we
expressed our intent to promulgate

without unreasonable delay a FIP (where necessary or appropriate) to
protect air quality if tribal efforts do not result in adoption and
approval of tribal plans or programs. See 63 FR 7265, 40 CFR 49.11.
    We propose to exercise our authority to administer the minor NSR
permitting program and the nonattainment major NSR program in Indian
country, which is generally the area over which a tribe may potentially
receive approval of programs under the Act. As noted in the final TAR,
we interpret the Act as establishing a territorial approach to
implementation of the Act within Indian reservations by delegating to
eligible tribes authority over all reservation sources without
differentiating among the various categories of on-reservation lands
(63 FR 7254-7258). In addition, the Act authorizes eligible tribes to
implement tribal programs under the Act in non-reservation areas over
which a tribe has jurisdiction, generally including all areas of Indian
country (63 FR 7258-7259).
    Under section 301(d)(4) of the Act, Congress authorized the EPA to
maintain the territorial approach by implementing the Act in Indian
country in the absence of an EPA-approved program. We believe that
Congress authorized us, consistent with our Indian policy, to avoid the
checkerboarding of reservations based on land ownership by federally
implementing the Act over all reservation sources in the absence of an
EPA-approved tribal program. See S. Rep. No. 228, 101st Cong., 1st
Sess. 79 (1989) (implementation of the Act to be in a manner consistent
with EPA's Indian policy). In addition, section 301(d)(4) authorized us
to implement the Act in non-reservation areas of Indian country in
order to fill any gap in program coverage and to ensure an efficient
and effective transition to EPA-approved programs.
    Our interpretation of section 301(d) of the Act as authorizing our
implementation throughout Indian country is also supported by the
legislative history. See S. Rep. No. 228, 101st Cong., 1st Sess. 80
(1989) (noting that section 301(d) of the Act authorizes the EPA to
implement provisions of the Act throughout ``Indian country'' when
there is no approved tribal program); Id. at 80 (noting that criminal
sanctions are to be levied by the EPA, ``consistent with the Federal
government's general authority in Indian country''); Id. at 79 (the
purpose of section 301(d) is to ``improve the environmental quality of
the air within Indian country in a manner consistent with the EPA
Indian Policy'').
    In order to further our commitment to use our authority under the
Act to protect air quality throughout Indian country by directly
implementing the Act's requirements, we are now exercising the
rulemaking authority entrusted to us by Congress to directly implement
the minor NSR permitting program and nonattainment major NSR permitting
program throughout all areas of Indian country. See generally, Chevron
USA, Inc. v. NRDC, 467 U.S. 837, 842-45 (1984).

B. How does a tribe receive delegation to assist EPA with
administration of the Federal minor and major NSR rules?

    Section 301(a)(1) of the Act provides that the Administrator is
authorized to prescribe such regulations as are necessary to carry out
his or her functions under the Act. Pursuant to this authority,
proposed 40 CFR 49.160 and 49.172 of the minor and major NSR rules,
respectively, provide that partial administration of the Federal NSR
programs may be delegated to a tribal agency that submits a request for
delegation which includes the information set forth in the proposed
sections.\10\ Any Federal requirements under these programs that are
administered by the delegate tribal agency will be subject to
enforcement by EPA under Federal law. Nothing in the proposed rules
would require us to delegate administration of any aspect of the
Federal program to a tribal agency.
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    \10\ This information includes identifying the specific rules
and provisions and the area of Indian country for which the
delegation is requested. In addition, tribal agencies seeking
delegation must provide a statement by the tribe's legal counsel or
equivalent official including a statement that the tribe is
recognized by the Secretary of the Interior, a descriptive statement
demonstrating that the tribe is currently carrying out substantial
governmental duties and powers over a defined area (this statement
should be consistent with the type of information described in 40
CFR 49.7(a)(2), which relates to the separate process by which
tribes apply to be treated in a similar manner as States for various
purposes under the Act), a description of the laws of the tribe that
provide adequate authority to administer the Federal rules and
provisions for which the delegation is requested, and a descriptive
statement demonstrating that the tribal agency has, or will have,
the technical capability and adequate resources to administer the
Federal rules and provisions for which the delegation is requested.
---------------------------------------------------------------------------

    As noted elsewhere, we have established a process in the TAR
pursuant to section 301(d) of the Act for tribes to seek treatment in a
similar manner as a State (TAS) for various provisions and programs of
the Act. Under the procedures set forth in the TAR, tribes may seek to
demonstrate eligibility for approval of tribal programs under the Act,
including a tribal NSR program, under tribal law. The TAR allows tribes
to seek approval for such programs covering their reservations or other
areas within their jurisdiction. We recognize that some tribes may
choose not to develop tribal NSR programs for submission to us for
approval under the TAR, but that these tribes may still wish to assist
us in implementing the Federal NSR program for their area of Indian
country. By assisting us with administration of the Federal program,
tribes remain appropriately involved in implementation of an important
air quality program and may develop their own capacity to manage such
programs in the future should they choose to do so. Proposed 40 CFR
49.160 and 49.172 of the minor and major NSR rules, respectively,
provide tribal governments the option of seeking delegation from us of
the administration of the Federal NSR program, or aspects of the
program, for their area of Indian country. Such administrative
delegation is to be distinguished from the TAS process under the TAR
whereby tribes seek approval to run programs under tribal law. Tribes
would not need to seek TAS under the TAR in order to request delegation
of administration of aspects of these Federal NSR programs. Tribes
would, however, need to provide the relevant application information
described in those sections. In addition, program functions delegated
under proposed 40 CFR 49.160 or 49.172 would remain part of the
relevant FIP administered under Federal law. The delegate tribal agency
would simply assist EPA with administration of the program to the
extent of the functions delegated.
    We have well-established processes for delegating our Federal
authority to States for administering Federal rules under the Act,
including conducting new source review under 40 CFR 52.21(u), and
issuing Federal operating permits under 40 CFR 71.4(j) and 71.10. The
process we would follow to delegate the administration of the Federal
NSR program to a tribal agency is similar to the process we follow to
delegate the administration of Federal programs to States. Prior to
finalizing any delegation agreement with a tribal agency, we would
consult with other Federal, State, tribal, or local governmental
entities, or other governmental agencies in the area, as appropriate.
Although sections 110(o) and 301(d) of the Act and the TAR authorize us
to review and approve TIPs, neither the Act nor the regulations provide
that approval of tribal programs under tribal law is the sole mechanism

available for tribal agencies to take on permitting responsibilities.
Accordingly, we propose to exercise our discretion to delegate
administration of the Federal NSR program to interested tribal agencies
satisfying the requirements of proposed 40 CFR 49.160 and 49.172.
    The delegation of administration of the Federal NSR program to
tribes proposed in these rules is to be distinguished from our
interpretation that the Act constitutes a delegation of Federal
authority from Congress to tribes over their reservations as described
in the TAR. See 63 FR 7254-59. As described in the preamble to the TAR,
it is our position that the TAS provision of the Act constitutes a
statutory delegation of authority to eligible tribes over their
reservations. As described earlier, the TAR established procedures for
our approval of tribal eligibility applications to operate the programs
of the Act under tribal law. Where we approve a tribal eligibility
application and approve a tribal NSR program, the approved tribe will
manage the program under tribal law, and the tribal program becomes
federally enforceable. Among the required elements of a tribal
eligibility application under the TAR is a demonstration of the tribe's
authority, including appropriate enforcement authority, to regulate air
quality for the areas to be covered by the program. For air resources
within the exterior boundaries of a tribe's reservation, the tribe may
rely on the Congressional delegation of Federal authority to operate
approved tribal programs. Tribes may also attempt to demonstrate
authority to operate the programs of the Act over other areas outside
of their reservations, generally including non-reservation areas of
Indian country.
    In contrast, the delegation approach proposed in these rules
provides for us to delegate administration of the Federal program
operating under Federal law to interested tribes that provide the
information described in proposed 40 CFR 49.160(b)(1) and 49.172(b)(1).
Since this program operates throughout Indian country under Federal
authority, tribes would not need to demonstrate either Congressionally-
delegated authority over air resources within the exterior boundaries
of their reservations or authority of non-reservation areas of Indian
country. Instead, tribal agencies would assist us in implementing the
Federal program by taking delegation of the administration of
particular activities conducted under our authority in Indian country.
Under proposed 40 CFR 49.160(b)(1)(iii)(C) and 49.172(b)(1)(iii)(C),
tribes would only need to show that their laws provide adequate
capacity and authority to carry out the delegated activities. For
example, where a tribe seeks administrative delegation for permit
issuing activities of the Federal program, the tribe may, among other
things, need to show it has in place an appropriate agency with legal
authority to review applications and issue permits on behalf of the
delegate tribal government. For these administratively delegated
programs, Federal program requirements will continue to be subject to
enforcement by us, not the delegate tribal agency, under Federal law.
Administrative appeals of permitting decisions would also continue to
be made directly to the EAB under our administrative procedures with
any subsequent judicial review to be conducted in Federal court. In the
proposed rules we make it clear that we will not delegate enforcement
or appeal components of the program to tribal agencies.
    In order to be delegated authority to administer the proposed rules
for a particular area of Indian country, the authorized representative
of a tribal agency must demonstrate that it has the authority and
technical capability to carry out the provisions of the rules for which
delegation is requested. When delegation is approved, a Partial
Delegation of Administrative Authority Agreement between the
Administrator and the tribal agency will set forth the terms and
conditions of the delegation, and will also specify the rules and
provisions that the tribal agency is authorized to implement. Once the
delegation becomes effective, the tribal agency will have the authority
under the Act, to the extent specified in the Agreement, to administer
the rules in effect for the particular area of Indian country, and to
act on behalf of the Administrator. The Federal requirements
administered by the delegate tribal agency will be subject to
enforcement by us under Federal law.
    When we have delegated administration of the portion of the Federal
minor or major NSR program that includes receipt of permit application
materials and preparation of draft permits, the delegate tribal agency
must provide us a copy of each permit application (including any
application for permit revision) and each draft permit.\11\ In any such
delegation, we retain the authority to object to the issuance of any
permit that we determine not to be in compliance with the requirements
under the program or other requirements pursuant to regulations under
the Act. For any such objections, we will outline the reasons for the
objection in writing, and we will provide a copy of the written
statement to the permit applicant. The delegate tribal agency may not
issue a permit if we object to its issuance in writing. The delegate
tribal agency may submit a revised draft permit to us in response to
the objection. However, if it does not do so within 90 days, we will
issue or deny the permit in accordance with the requirements of the
Federal minor or major NSR program, as applicable.
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    \11\ The proposed minor and major NSR programs provide that the
delegate tribal agency may require the applicant to provide a copy
of the permit application directly to us. In addition, with our
consent, the delegate tribal agency may submit to us a permit
application summary form and any relevant portion of the permit
application.
---------------------------------------------------------------------------

C. What happens to permits previously issued by States to sources in
Indian country?

    As discussed previously, section 301(d) of the Act recognizes the
authority of eligible tribes to implement the Act throughout their
reservations and other areas under their jurisdiction. Historically,
sources in some areas of Indian country may have received permits from
States operating EPA-approved programs. However, States generally lack
jurisdiction under the Act over these facilities and generally were not
authorized under the Act to issue such permits in Indian country. We
also recognize that just as it required many years to develop State and
Federal programs to cover lands subject to State jurisdiction, it will
also require time to develop tribal and Federal programs to cover areas
of Indian country.
    We have also mentioned before that we will ``promulgate without
unreasonable delay such Federal implementation plan provisions as are
necessary or appropriate to protect air quality, consistent with the
provisions of sections 301(a) and 301(d)(4) [of the Act], if a tribe
does not submit a tribal implementation plan. * * *'' See 40 CFR
49.11(a). Today's proposed rulemaking would provide a mechanism to
change State permits issued to major sources of regulated NSR
pollutants in nonattainment areas of Indian country to Federal major
NSR permits. If you own or operate a major stationary source with a
State-issued nonattainment major NSR permit, you must apply to convert
the permit to a Federal permit under this program within 1 year of the
effective date of this program. In this case, you would not be subject
to any additional requirements under this program. See proposed 40 CFR
49.168(b).
    The requirements contained in these State-issued permits have been
relied on for protection of attainment and

maintenance of air quality in these nonattainment areas. We believe
that transforming the State permits in to Federal major NSR permits for
major sources in Indian country is appropriate to protect air quality
in Indian country, as the tribes take on the effort to develop and/or
run their own programs.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866, (58 FR 51735, October 4, 1993), we
must determine whether the regulatory action is ``significant'' and
therefore subject to Office of Management and Budget (OMB) review and
the requirements of the Executive Order. The Executive Order defines a
``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 obligation 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.
    Pursuant to the terms of Executive Order 12866, it has been
determined that this is a ``significant regulatory action''. We have
submitted this action to OMB for review. Changes made in response to
OMB suggestions or recommendations will be documented in the public
record.

B. Paperwork Reduction Act

    The information collection requirements in the proposed amendments
have been submitted for approval to OMB under the Paperwork Reduction
Act, 44 U.S.C. 3501, et seq. The Information Collection Request (ICR)
document prepared by EPA has been assigned OMB Control Number 2060-0003
(EPA ICR No. 1230.13).
    Certain records and reports are necessary for the tribal agency (or
the EPA Administrator in non-delegated areas), for example, to: (1)
Confirm the compliance status of stationary sources, identify any
stationary sources not subject to the standards, and identify
stationary sources subject to the rules; and (2) ensure that the
stationary source control requirements are being achieved. The
information would be used by the EPA or tribal enforcement personnel to
(1) Identify stationary sources subject to the rules, (2) ensure that
appropriate control technology is being properly applied, and (3)
ensure that the emission control devices are being properly operated
and maintained on a continuous basis. Based on the reported
information, the delegate tribes can decide which plants, records, or
processes should be inspected.
    The major nonattainment NSR rule would have little impact on
existing major stationary sources in Indian country because it would
only affect such owners and operators if they propose a major
modification; none are expected. The proposed rule would only result in
an administrative change for new major sources in Indian country
because, although the regulatory mechanism to issue permits is not yet
available in the form of either a Federal nonattainment NSR rule or a
TIP, we would be required to implement the program in Indian country,
and would otherwise have to do source-specific FIP. As a result, there
would no new or additional burden on industry.
    With regard to the minor source permitting rule, the average
capital cost per facility for the one-time activities is $13,088 per
source; annualized, this cost is $1,863 per year per source. The total
of the various annualized and recurring costs is an average of $7,598
per year per source. The annual reporting and record keeping cost
burden is a total annualized capital/startup costs of $77,000, and
total annual costs (operation and maintenance) of $235,000.
    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.
    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 the
EPA's rules are listed in 40 CFR part 9 and 48 CFR chapter 15.
    To comment on the Agency's need for this information, the accuracy
of the provided burden estimates, and any suggested methods for
minimizing respondent burden, including the use of automated collection
techniques, EPA has established a public docket for this rule, which
includes this ICR, under Docket ID number EPA-HQ-OAR-2003-0075. Submit
any comments related to the ICR for this proposed rule to EPA and OMB.
See ADDRESSES section at the beginning of this notice for where to
submit comments to EPA. Send comments to OMB at the Office of
Information and Regulatory Affairs, Office of Management and Budget,
725 17th Street, NW., Washington, DC 20503, Attention: Desk Office for
EPA. Since OMB is required to make a decision concerning the ICR
between 30 and 60 days after August 21, 2006, a comment to OMB is best
assured of having its full effect if OMB receives it by September 20,
2006. The final rule will respond to any OMB or public comments on the
information collection requirements contained in this proposal.

C. Regulatory Flexibility Act (RFA)

    The 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 the 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 proposed rule on
small entities, ``small entity'' is defined as: (1) A small business as
defined by the Small Business Administration's regulations at 13 CFR
121.201; (2) a small governmental jurisdiction that is a government or
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. Today's proposed rule only
potentially affects small businesses, not small governments or small
organizations.
    The proposed rule potentially affects six types of stationary
sources in Indian Country:
     New and modified minor sources of regulated NSR
pollutants;

     Sources of regulated NSR pollutants choosing to accept
enforceable emission limitations to avoid major source regulations
(synthetic minors);
     Sources of HAP choosing to accept enforceable emission
limitations to avoid major source regulations (synthetic minors);
     Minor modifications to major sources of regulated NSR
pollutants;
     New major sources of regulated NSR pollutants in
nonattainment areas; and
     Major modifications to major sources of regulated NSR
pollutants in nonattainment areas.
    The second, third, fifth, and sixth types of sources are projected
to incur no incremental costs or to experience cost savings due to the
proposed rule. The rule results in only an administrative change for
new major sources in nonattainment areas. In the absence of the
proposed rule, there is no regulatory mechanism to issue permits. We
would be required to implement the program in Indian country, and such
new major sources would have to be permitted through a source-specific
FIP. The proposed rule would provide a regulatory mechanism for
permitting such sources; because the compliance requirements are
expected to be unchanged by the proposed rule, no change in control
costs is expected. Because the permitting process may be less uncertain
under the proposed rule, new and modifying major sources could
potentially experience cost savings compared to baseline conditions.
Choosing to accept enforceable emission limitations (become a synthetic
minor) is entirely optional; rational firms would only make this choice
if it resulted in a cost savings. For these four types of sources,
therefore, no adverse economic impacts are expected to any businesses,
including small businesses.
    The screening assessment therefore focused on costs and impacts for
new and modified minor sources and minor modifications at major
sources. To analyze potential impacts to small companies owning such
sources, we first estimated the number of new sources that would be
sited in Indian country over the period 2004 through 2010, the time
period selected for the analysis.\12\ Generally, data on minor sources
in Indian country is very limited. We conducted an exhaustive search
for information available from EPA databases, the Small Business
Administration, and EPA Regional Offices. We also encouraged the tribes
to participate in the rulemaking, and inquired whether tribes had any
information on minor sources but no data were received. We concluded
that the information in 11 tribal emissions inventories maintained by
EPA/OAQPS provided the best characterization of the types of minor
sources that currently exist and the types of new minor sources that
might be sited in Indian country in the future. We collected data from
the Economic Census (1997) on the number of establishments of each type
in each State, and allocated the establishments to Indian country based
on tribes' share of State income. Then, we projected the number of new
minor sources of each type that would be created in Indian country by
applying the estimated growth rate for American Indian/Alaska Native
(AI/AN) population in each State to the estimated baseline number of
sources in Indian country in the State. Over the period from
promulgation (2004) through (2010), we estimate that 288 new minor
sources will be created in Indian country. We used data from financial
databases to compute the share of companies in each sector that are
owned by small businesses (based on the Small Business Administration
small business size definitions at 13 CFR part 121). Assuming that the
same share of new minor sources will be owned by small businesses, we
estimate that 164 new minor source facilities, owned by 143 small
businesses, will be created in Indian country during the period.
Additionally, we project that 112 modifications to existing minor
sources will occur during the period 2004 through 2010. Of these, we
estimate that 51 small businesses will own 62 existing minor sources
undergoing modifications during the period.
---------------------------------------------------------------------------

    \12\ Based upon our evaluation of current Tribal emission
inventories and the application of updated growth rates, we have
determined that the analysis has not changed significantly to date;
therefore, the May, 2003 analysis for the period 2004-2010 remains
valid for the EIA, the associated ICR supporting statement and this
RFA. This analysis will be updated for the final rulemaking.
---------------------------------------------------------------------------

    Finally, we estimate that one major source in Indian country will
make a minor modification to its operations each year. Thus, we
estimate that seven minor modifications to existing major sources will
occur over the period 2004 to 2010. Of these, we estimate that 3 of
these major sources will be owned by 3 small businesses.
    Table 3 below summarizes the estimated numbers of affected
facilities and small businesses.

    Table 3.--Projected Number of Affected Small Businesses and Estimated Costs Incurred by Small Businesses
                                               [2004 through 2010]
----------------------------------------------------------------------------------------------------------------
                                                                                Estimated costs
                                         Projected number of      Estimated number of       incurred by small
             Source type                sources owned by small      small businesses     businesses  ($ million)
                                              businesses                                           \a\
----------------------------------------------------------------------------------------------------------------
New Minor Sources....................                      164                      143                    $2.68
Modified Minor Sources...............                       62                       51                     0.97
Minor Modifications to Major Sources.                        3                        3                     0.02
                                      --------------------------------------------------------------------------
    Total............................                      229                      197                     3.62
----------------------------------------------------------------------------------------------------------------
\a\ Based on Year 2000 dollars.

    To conduct our screening analysis of impacts on small businesses,
we compared the estimated costs of compliance for each type of source
in each sector with typical small business sales in each sector.
    Based on the screening analysis of impacts on small entities, we
certify that this action will not have a significant economic impact on
a substantial number of small entities. Our analysis estimates that, of
the projected 164 new minor source facilities owned by 143 small
businesses, two (a natural gas compressor station and a landfill) will
experience costs greater than 1 percent of sales and none will
experience costs exceeding 3 percent of sales due to the proposed rule.
Of the estimated 62 existing minor source facilities owned

by 51 small businesses projected to perform minor modifications that
result in emissions increases greater than the minor NSR thresholds in
Table 1, three may experience costs approximately equal to 1 percent of
sales; none experience costs exceeding 3 percent of sales. The three
major source facilities owned by small businesses projected to perform
minor modifications during the period 2004 through 2010 will incur only
the costs of obtaining a minor source permit, which represent a very
small share of baseline company sales. Therefore, of these 229
potentially affected facilities owned by an estimated 197 small
businesses, only 5 are projected to incur costs exceeding 1 percent of
company sales, and none is projected to incur costs greater than 3
percent of company sales. Thus, the proposed rule will not impose a
significant economic impact on a substantial number of small entities.

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, we
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
aggregate, or to the private sector, of $100 million or more in any 1
year. Before promulgating an EPA rule for which a written statement is
needed, section 205 of the UMRA generally requires us 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 us 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 we establish any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, we 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 our regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
    We have 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 1 year. The maximum total annual cost of this
proposed rule for any 1 year has been estimated to be $312,000. Thus,
today's proposed rule is not subject to the requirements of sections
202 and 205 of the UMRA. In addition, we have determined that this
proposed rule contains no regulatory requirements that might
significantly or uniquely affect small governments because it contains
no requirements that apply to such governments or impose obligations
upon them. Therefore, today's proposed rule is not subject to the
requirements of section 203 of the UMRA.
    The proposed rule does not require that any tribe accept delegation
or develop their own permitting program; thus, it does not impose any
burden on small tribes. We recognize, however, that some small tribes
may choose to assist EPA with administration of the minor NSR program
on their reservations. We thus analyzed the costs to small tribes if
they did make this choice, using small tribes that have chosen to
develop their own air programs as examples of the types of tribes that
might choose to assist EPA with administration of the minor new source
permitting program. We found that the cost per tribal member was less
than $1 per year, and represented less than 0.01 percent of the per
capita income of tribal members. Thus, if the costs of developing and
implementing a permitting program for new minor sources were borne by
the tribes' members, it would not be a significant burden to them.

E. Executive Order 13132: Federalism

    Executive Order 13132 (64 FR 43255, August 10, 1999), requires us
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.''
    Under section 6 of Executive Order 13132, we may not issue a
regulation that has federalism 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 State and local governments, or we consult
with State and local officials early in the process of developing the
proposed regulation. We also may not issue a regulation that has
federalism implications and that preempts State law, unless we consult
with State and local officials early in the process of developing the
proposed regulation.
    This proposed rule does not have federalism implications. It would
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. Pursuant to the terms of
Executive Order 13132, it has been determined that this proposed rule
does not have ``federalism implications'' because it does not meet the
necessary criteria. Thus, the requirements of section 6 of the
Executive Order do not apply to this proposed rule.
    In the spirit of Executive Order 13132, and consistent with our
policy to promote communications between us and State and local
governments, we specifically solicit comment on this proposed rule from
State and local officials. We felt it was important to ensure that the
State and local air pollution control agencies and small business
concerns had an opportunity to interact with development of this rule.
To that end, we had two meetings with the STAPPA/ALAPCO to present the
draft preamble and rule. We also met with the National Federation of
Independent Business and provided outreach material through the small
business ombudsman's office to get input from the small businesses that
might be affected by this rule.

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

    Executive Order 13175 (65 FR 67249, November 6, 2000), requires us
to develop an accountable process to ensure ``meaningful and timely
input by tribal officials in the development of regulatory policies
that have tribal implications.''
    The EPA has concluded that this rule will have tribal implications,
since it provides two preconstruction air permitting rules for
stationary sources in Indian Country. These rules will be

implemented by EPA, or a delegate tribal agency assisting EPA with
administration of the rules, until replaced by an EPA-approved tribal
implementation plan. However, it will neither impose substantial direct
compliance costs on tribal governments, nor preempt Tribal law.
    The EPA consulted with tribal officials early in the process of
developing this regulation to permit them to have meaningful and timely
input into its development. In undertaking this rulemaking effort we
wanted to ensure that the tribes were included in the rulemaking
process from the beginning of the rule development effort. On June 24,
2002, we sent letters to tribal leaders seeking their input on how we
could best consult with the tribes on the rulemaking effort.
    We received responses from 75 tribes. Of these 75 tribes, 69
designated an environmental staff member to work with us on developing
the rule. Aside from the staff designated to help with the rulemaking
process, many tribal leaders wished to be kept informed of the rule
development. Many of the tribal leaders indicated that they wished to
be kept informed through e-mail, meetings with the EPA Regional
Offices, newsletters, and Web sites. However, 53 percent of the tribal
leaders also requested direct phone calls or conference calls to
discuss the subject. Only 16 percent of the respondents requested face-
to-face consultation. Even among the tribes requesting face-to-face
consultation, there was some degree of latitude, with only six tribes
requesting senior EPA staff to meet with tribal leaders.
    As a result of this feedback we developed a consultation/outreach
plan which included three meetings held at the reservations of the
Menominee Tribe in Wisconsin, the Mohegan Tribe in Connecticut, and the
Chehalis Tribe in Washington. A fourth meeting was held in conjunction
with the Institute of Tribal Environmental Professionals' (ITEP)
anniversary meeting in Flagstaff, Arizona. In addition to conducting
these national meetings, we also visited tribal environmental staff on
tribal lands, where time and travel permitted. Over 30 tribes attended
these meetings. We have also provided outreach to the tribes in
numerous national and regional forums including the National Tribal
Forums put on by the Institute of Tribal Environmental Professionals,
two National Tribal Air Association meetings, and at meetings with
tribal consortia, such as the National Tribal Environmental Council,
United Southern and Eastern Tribes, Inter Tribal Environmental Council,
Inter Tribal Council of Arizona, and others.
    In addition to the meetings, we also have an ongoing workgroup of
tribal environmental staff that has worked with us on developing these
rules. We propose to continue with this consultation and outreach
process until we promulgate this rulemaking package. EPA specifically
solicits additional comment on this proposed rule from tribal
officials.

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

    Executive Order 13045 (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 we have reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, we 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 that we considered.
    We interpret Executive Order 13045 as applying only to those
regulatory actions that are based on health or safety risks, such that
the analysis required under section 5-501 of the Executive Order has
the potential to influence the regulation. This proposed rule is not
subject to Executive Order 13045 because it does not establish
environmental standards based on an assessment of health or safety
risks. Furthermore, this proposed rule has been determined not to be
``economically significant'' as defined under Executive Order 12866.

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

    This proposed rule is not a ``significant energy action'' as
defined in Executive Order 13211,``Actions Concerning Regulations that
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001) because it is not likely to have a significant
adverse effect on the supply, distribution, or use of energy.

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

    Executive Order 12898 requires that each Federal agency make
achieving environmental justice part of its mission by identifying and
addressing, as appropriate, disproportionately high and adverse human
health environmental effects of its programs, policies, and activities
on minorities and low-income populations.
    The EPA believes that the two preconstruction air quality
regulations proposed in this FIP should not raise any environmental
justice issues. These regulations would provide regulatory certainty
and fill a regulatory gap in Indian Country and result in emissions
reductions from sources complying with these regulations. Consequently,
the regulations should result in some health benefits to persons living
in Indian Country, many of whom live in low-income and minority
communities. Therefore, we believe that these regulations would not
have a disproportionate adverse effect on the health or safety of
minority or low income populations.

J. 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 us to use voluntary consensus standards (VCS) in our regulatory
and procurement activities unless to do so would be inconsistent with
applicable law or otherwise impractical. The VCS are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) developed or adopted by one or more
voluntary consensus bodies. The NTTAA directs us to provide Congress,
through annual reports to OMB, with explanations when we do not use
available and applicable VCS.
    This proposed rule does not involve technical standards. Therefore,
we are not considering the use of any voluntary consensus standards.

VII. Statutory Authority

    The statutory authority for this proposed action is provided by
sections 101, 110, 112, 114, 116, and 301 of the Act as amended (42
U.S.C. 7401, 7410, 7412, 7414, 7416, and 7601).

List of Subjects

40 CFR Part 49

    Administrative practices and procedures, Air pollution control,
Environmental protection, Indians, Intergovernmental relations,
Reporting and recordkeeping requirements.

40 CFR Part 51

    Administrative practices and procedures, Air pollution control,
Environmental protection, Intergovernmental relations.

    Dated: August 9, 2006.
Stephen L. Johnson,
Administrator.

    For the reasons cited in the preamble, title 40, chapter I of the
Code of Federal Regulations is proposed to be amended as follows:

PART 49--[AMENDED]

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

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

Subpart C--[Amended]

    2. Subpart C of Part 49 is amended by adding an undesignated center
heading and Sec. Sec.  49.151 through 49.160, and adding and reserving
Sec. Sec.  49.161 through 49.165 to read as follows:

Federal Minor New Source Review Program in Indian Country

Sec.  49.151  Program overview.

    (a) What constitutes the Federal minor new source review (NSR)
program in Indian country? As set forth in this Federal Implementation
Plan (FIP), the Federal minor NSR program in Indian country (or
``program'') consists of Sec. Sec.  49.151 through 49.165.
    (b) What is the purpose of this program? This program has the
following purposes:
    (1) It establishes a preconstruction permitting program for new and
modified minor stationary sources (minor sources) and minor
modifications at major stationary sources located in Indian country to
meet the requirements of section 110(a)(2)(C) of the Act.
    (2) It also provides a mechanism for an otherwise major stationary
source to voluntarily accept restrictions on its potential to emit to
become a synthetic minor source. This mechanism also may be used by an
otherwise major source of Hazardous Air Pollutants (HAPs) to
voluntarily accept restrictions on its potential to emit to become a
synthetic minor HAP source. Such restrictions must be enforceable as a
practical matter.
    (3) It sets forth the criteria and procedures that the reviewing
authority (as defined in Sec.  49.152(d)) will use to administer the
program.
    (c) When and where does this program apply? (1) The provisions of
this program apply in Indian country where there is no EPA-approved
minor NSR program, beginning on [60 days from publication of final
rule].
    (2) The provisions of this program cease to apply in an area
covered by an EPA-approved implementation plan on the date that our
approval of that implementation plan becomes effective, provided that
the implementation plan includes provisions that comply with the
requirements of section 110(a)(2)(C) of the Act for the construction
and modification of minor sources and minor modifications at major
stationary sources.
    (d) What general provisions apply under this program? The following
general provisions apply to you as an owner/operator of a stationary
source:
    (1) If you propose to construct a new minor source, a modification
at an existing minor source, or a minor modification at an existing
major stationary source that would be subject to this program, you must
obtain a minor NSR permit under this program before beginning actual
construction. If you commence construction after the effective date of
this program without applying for and receiving a permit pursuant to
this program, you will be subject to appropriate enforcement action.
    (2) If you construct or operate your source or modification not in
accordance with the terms of your minor NSR permit, you will be subject
to appropriate enforcement action.
    (3) Issuance of a permit does not relieve you of the responsibility
to comply fully with applicable provisions of any EPA-approved
implementation plan or FIP and any other requirements under applicable
law.
    (4) Nothing in this program prevents a tribe from administering a
minor NSR permit program with more stringent requirements in an
approved Tribal Implementation Plan (TIP).
    (e) What is the process for issuing permits under this program? For
the reviewing authority to issue a final permit decision under this
program (other than a general permit under Sec.  49.156), all the
actions listed in paragraphs (e)(1) through (8) of this section need to
be completed. This paragraph (e) does not apply to general permits.
    (1) You must submit a permit application that meets the
requirements of Sec.  49.154(a).
    (2) The reviewing authority determines completeness of the permit
application as provided in Sec.  49.154(b).
    (3) The reviewing authority determines the appropriate emission
limitations for your affected emissions units under Sec.  49.154(c).
    (4) In those rare instances where the reviewing authority has
reason to be concerned that the construction of your minor source or
modification would cause or contribute to a NAAQS or Prevention of
Significant Deterioration (PSD) increment violation, you must submit an
air quality analysis upon request by the reviewing authority.
    (5) The reviewing authority determines that the new or modified
source will not cause or contribute to a NAAQS or PSD increment
violation.
    (6) The reviewing authority develops a draft permit that meets the
permit content requirements of Sec.  49.155(a).
    (7) The reviewing authority provides for public participation
according to the requirements of Sec.  49.157.
    (8) The reviewing authority either issues a final permit that meets
the requirements of Sec.  49.155(a), or denies the permit and provides
reasons for the denial.

Sec.  49.152  Definitions.

    (a) For sources of regulated NSR pollutants in nonattainment areas,
the definitions in Sec.  49.167 apply to the extent that they are used
in this program (except for terms defined in paragraph (d) of this
section).
    (b) For sources of regulated NSR pollutants in attainment or
unclassifiable areas, the definitions in Sec.  52.21 of this chapter
apply to the extent that they are used in this program (except for
terms defined in paragraph (d) of this section).
    (c) For sources of HAP, the definitions in Sec.  63.2 of this
chapter apply to the extent that they are used in this program (except
for terms defined in paragraph (d) of this section).
    (d) The following definitions also apply to this program: Affected
emissions units means the following emissions units, as applicable:
    (1) For a proposed new minor source, all the emissions units.
    (2) For a proposed modification, the new, modified, and replacement
emissions units involved in the modification.
    (3) For an existing minor source applying for a minor source PAL,
all the emissions units that emit the PAL pollutant. However, such
units are considered affected emissions units only for the PAL
pollutant.
    Allowable emissions means ``allowable emissions'' as defined in
Sec.  52.21(b)(16) of this chapter, except that the allowable emissions
for any emissions unit are calculated considering any emission
limitations that are enforceable as a practical matter on the emissions
unit's potential to emit.
    Emission limitation means a requirement established by the
reviewing authority which limits the quantity, rate, or concentration
of emissions of air pollutants on a continuous basis, including any
requirement relating to the operation or

maintenance of a source to assure continuous emissions reduction, and
any design standard, equipment standard, work practice, operational
standard, or pollution prevention technique.
    Enforceable as a practical matter means that an emission limitation
is both legally and practically enforceable as follows:
    (1) An emission limitation is ``legally enforceable'' if the
reviewing authority has the right to enforce it.
    (2) Practical enforceability for an emission limitation in a permit
for a source is achieved if the permit's provisions specify:
    (i) A limitation and the emissions unit(s) at the source subject to
the limitation;
    (ii) The time period for the limitation (e.g., hourly, daily,
monthly, and/or annual limits such as rolling annual limits); and
    (iii) The method to determine compliance, including appropriate
monitoring, recordkeeping, reporting, and testing.
    (3) For rules and general permits that apply to categories of
sources, practicable enforceability additionally requires that the
provisions:
    (i) Identify the types or categories of sources that are covered by
the rule or general permit;
    (ii) Where coverage is optional, provide for notice to the
reviewing authority of the source's election to be covered by the rule
or general permit; and
    (iii) Specify the enforcement consequences relevant to the rule or
general permit.
    Environmental Appeals Board means the Board within the EPA
described in Sec.  1.25(e) of this chapter.
    Indian country, as defined in 18 U.S.C. 1151, means the following:
    (1) 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; \1\
---------------------------------------------------------------------------

    \1\ Under this definition, EPA treats as reservations trust
lands validly set aside for the use of a tribe even if the trust
lands have not been formally designated as a reservation.
---------------------------------------------------------------------------

    (2) 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
    (3) All Indian allotments, the Indian titles to which have not been
extinguished, including rights-of-way running through the same.
    Indian governing body means the governing body of any tribe, band,
or group of Indians subject to the jurisdiction of the United States
and recognized by the United States as possessing power of self-
government.
    Minor modification at a major stationary source means a
modification at a major stationary source that does not qualify as a
major modification under Sec.  49.167 or Sec.  52.21 of this chapter,
as applicable.
    Minor NSR threshold means any of the applicability cutoffs for this
program listed in Table 1 of Sec.  49.153.
    Minor source plantwide applicability limitation (PAL) means a
source-wide limitation on allowable emissions of a regulated NSR
pollutant, expressed in tons per year, that is established for a minor
source in a permit issued under Sec.  49.155 and that is enforceable as
a practical matter.
    Minor stationary source or minor source means a source that emits
or has the potential to emit regulated NSR pollutants in amounts that
are less than the major stationary source levels in Sec.  49.167 or
Sec.  52.21 of this chapter, as applicable. The term ``minor stationary
source'' applies independently to each regulated NSR pollutant that the
source has the potential to emit.
    Modification means any physical or operational change at a source
that would cause an increase in the allowable emissions of the affected
emissions units for any regulated NSR pollutant or that would cause the
emission of any regulated NSR pollutant not previously emitted. The
following exemptions apply:
    (1) A physical or operational change does not include routine
maintenance, repair, or replacement.
    (2) An increase in the hours of operation or in the production rate
is not considered an operational change unless such increase is
prohibited under any federally-enforceable permit condition or other
permit condition that is enforceable as a practical matter.
    (3) A change in ownership at a source is not considered a
modification.
    Potential to emit means the maximum capacity of a source to emit a
pollutant under its physical and operational design. Any physical or
operational limitation on the capacity of the source to emit a
pollutant, including air pollution control equipment and restrictions
on hours of operation or on the type or amount of material combusted,
stored, or processed, shall be treated as part of its design if the
limitation or the effect it would have on emissions is federally
enforceable or enforceable as a practical matter. Secondary emissions,
as defined at Sec.  52.21(b)(18) of this chapter, do not count in
determining the potential to emit of a source.
    Reviewing authority means the Administrator, and may mean an Indian
tribe in cases where a tribal agency is assisting EPA with
administration of the program through a delegation.
    Synthetic minor HAP source means a source that otherwise has the
potential to emit HAPs in amounts that are at or above those for major
sources of HAP in Sec.  63.2 of this chapter, but that has taken a
restriction so that its potential to emit is less than such amounts for
major sources. Such restrictions must be enforceable as a practical
matter.
    Synthetic minor source means a source that otherwise has the
potential to emit regulated NSR pollutants in amounts that are at or
above those for major stationary sources in Sec.  49.167 or Sec.  52.21
of this chapter, as applicable, but that has taken a restriction so
that its potential to emit is less than such amounts for major
stationary sources. Such restrictions must be enforceable as a
practical matter. The term ``synthetic minor source'' applies
independently for each regulated NSR pollutant that the source has the
potential to emit.

Sec.  49.153  Applicability.

    (a) Does this program apply to me? The requirements of this program
apply to you as set out in paragraphs (a)(1) through (5) of this
section.
    (1) New and modified sources. The applicability of the
preconstruction review requirements of this program is determined
individually for each regulated NSR pollutant that would be emitted by
your new or modified source. For each such pollutant, determine
applicability as set out in the relevant paragraph (a)(1)(i) or (ii) of
this section. Flowcharts 1 through 6 of this section are provided as
aids for making these applicability determinations.
    (i) New source. Use the following steps to determine applicability
for each regulated NSR pollutant. Flowchart 2 of this section addresses
attainment and unclassifiable pollutants; Flowchart 4 of this section
addresses nonattainment pollutants.
    (A) Step 1. For the pollutant being evaluated, determine whether
your proposed source is subject to review under the applicable major
NSR program (that is, under Sec.  52.21 of this chapter, under the
Federal major NSR program for nonattainment areas in Indian country at
Sec. Sec.  49.166 through 49.75, or under a program approved by the
Administrator pursuant to Sec.  51.165 or Sec.  51.166 of this
chapter). If not, go to Step 2 (paragraph (a)(1)(i)(B) of this
section).

    (B) Step 2. Determine whether the source's potential to emit the
pollutant that you are evaluating is greater than or equal to the
corresponding minor NSR threshold in Table 1 of this section. If it is,
you are subject to the preconstruction requirements of this program for
that pollutant.
    (ii) Modification at an existing source. If you propose to make a
physical or operational change at an existing source, determine whether
the change qualifies as a modification (as defined in Sec.  49.152)
using the procedures in paragraph (b) of this section to determine the
increase in allowable emissions. If the change is a modification, use
the following steps to determine applicability for each regulated NSR
pollutant. Flowchart 3 of this section addresses attainment and
unclassifiable pollutants; Flowchart 5 of this section addresses
nonattainment pollutants. Flowchart 6 addresses minor NSR
applicability. Note that if the physical or operational change is not a
modification under this program, it may still be subject to some
requirements under this program; See paragraphs (a)(2) through (5) of
this section.
    (A) Step 1. For the pollutant being evaluated, determine whether
your proposed modification is subject to review under the applicable
major NSR program. If not, go to Step 2 (paragraph (a)(1)(ii)(B) of
this section).
    (B) Step 2. Does your existing source have a minor source PAL for
the pollutant that you are evaluating? If so, you are subject to the
preconstruction requirements of this program for that pollutant. If
not, go to Step 3 (paragraph (a)(1)(ii)(C) of this section).
    (C) Step 3. Determine whether the increase in allowable emissions
from the proposed modification (calculated using the procedures of
paragraph (b) of this section) would be greater than or equal to the
minor NSR threshold in Table 1 of this section for the pollutant that
you are evaluating. If it is, you are subject to the preconstruction
requirements of this program for that pollutant. If not, go to Step 4
(paragraph (a)(1)(ii)(D) of this section).
    (D) Step 4. If any of the emissions units affected by your proposed
modification currently has an annual allowable emissions limit for the
pollutant that you are evaluating, determine whether the modification
would increase any such unit's allowable emissions above its existing
limit. If so, the proposed modification is subject to paragraph (a)(2)
of this section. If not, your proposed modification is not subject to
this program.
    (2) Increase in an emissions unit's annual allowable emissions
limit. If you propose a physical or operational change at your minor or
major stationary source that would increase an emissions unit's
allowable emissions of a regulated NSR pollutant above its existing
annual allowable emissions limit, you must obtain an increase in the
limit prior to making the change. For a physical or operational change
that is not otherwise subject to review under major NSR or under this
program, such increase in the annual allowable emissions limit can be
accomplished through an administrative permit revision as provided in
Sec.  49.159(f).
    (3) Synthetic minor permits. If you propose to establish a
synthetic minor source or synthetic minor HAP source, you must apply
for a permit under Sec.  49.158. Additionally, if you currently own or
operate such a source that was established by maintaining your actual
emissions at less than 50 percent of the relevant major source
threshold, you must obtain a synthetic minor permit under this program
according to the requirements of Sec.  49.158.
    (4) Minor source PALs. If you propose to establish a minor source
PAL for your existing minor source, you must apply for a permit under
Sec.  49.154.
    (5) Case-by-case maximum achievable control technology (MACT)
determinations. If you propose to construct or reconstruct a major
source of HAPs such that you are subject to a case-by-case MACT
determination under section 112(g)(2) of the Act, you may elect to have
this determination approved under the provisions of this program.
(Other options for such determinations include a title V permit action
or a Notice of MACT Approval under Sec.  63.43 of this chapter.) If you
elect this option, you still must comply with the requirements of Sec.
63.43 of this chapter that apply to all case-by-case MACT
determinations.
    (b) How do I determine the increase in allowable emissions from a
physical or operational change at my source? Determine the resulting
increase in allowable emissions in tons per year (tpy) of each
regulated NSR pollutant after considering all increases and decreases
from the change according to paragraph (b)(1) or (2) of this section,
as applicable. A physical or operational change may involve one or more
emissions units.
    (1) For a change at a minor source with a minor source PAL, the
emissions increase would be the PAL level after the change minus the
PAL level prior to the change.
    (2) For other changes, the total increase in allowable emissions
resulting from your proposed change would be the sum of the following:
    (i) For each new emissions unit that is to be added, the emissions
increase would be the potential to emit of the emissions unit.
    (ii) For each emissions unit with an allowable emissions limit that
is to be changed or replaced, the emissions increase would be the
allowable emissions of the emissions unit after the change or
replacement minus the allowable emissions prior to the change or
replacement. This may be a negative value for an emissions unit if the
allowable emissions of the unit would be reduced as a result of the
change or replacement.
    (iii) For each unpermitted emissions unit that is to be changed or
replaced, the emissions increase is the allowable emissions of the
emissions unit after the change or replacement minus the potential to
emit prior to the change or replacement. This may be a negative value
for an emissions unit if its post-change allowable emissions would be
less than its pre-change potential to emit.
    (c) What emissions units and activities are exempt from this
program? This program does not apply to the following emissions units
and activities at a source that are listed in paragraphs (c)(1) through
(10) of this section.
    (1) Mobile sources.
    (2) Air-conditioning units used for comfort that are not subject to
applicable requirements under title VI of the Act and do not exhaust
air pollutants into the ambient air from any manufacturing or other
industrial process.
    (3) Ventilating units used for comfort that do not exhaust air
pollutants into the ambient air from any manufacturing or other
industrial process.
    (4) Heating units used for comfort that do not provide heat for any
manufacturing or other industrial process.
    (5) Noncommercial food preparation.
    (6) Consumer use of office equipment and products.
    (7) Janitorial services and consumer use of janitorial products.
    (8) Internal combustion engines used for landscaping purposes.
    (9) Bench scale laboratory activities, except for laboratory fume
hoods or vents.
    (10) Any emissions unit or activity that does not emit or have the
potential to emit a regulated NSR pollutant or HAP, so long as that
emissions unit or activity is not part of a process unit that emits or
has the potential to emit a regulated NSR pollutant or HAP.

                               Table 1 to Sec.   49.153. Minor NSR Thresholds.\1\
----------------------------------------------------------------------------------------------------------------
                                                                Minor NSR thresholds for
                                                               nonattainment areas  (tpy)         Minor NSR
                  Regulated NSR pollutant                   --------------------------------    thresholds for
                                                              Extreme ozone                    attainment areas
                                                                  areas        Other areas          (tpy)
----------------------------------------------------------------------------------------------------------------
Carbon monoxide............................................               5               5                   10
Oxides of nitrogen.........................................               0               5                   10
Sulfur dioxide.............................................               5               5                   10
VOC........................................................               0               2                    5
PM.........................................................               5               5                   10
PM-10......................................................               1               1                    5
PM-2.5.....................................................             0.6             0.6                    3
Lead.......................................................             0.1             0.1                  0.1
Fluorides..................................................              NA              NA                    1
Sulfuric acid mist.........................................              NA              NA                    2
Hydrogen sulfide (H2S).....................................              NA              NA                    2
Total reduced sulfur (including H2S).......................              NA              NA                    2
Reduced sulfur compounds (including H2S)...................              NA              NA                    2
Municipal waste combustor emissions........................              NA              NA                    2
Municipal solid waste landfills emissions (measured as                   NA              NA                  10
 nonmethane organic compounds).............................
----------------------------------------------------------------------------------------------------------------
\1\ If part of a tribe's area of Indian country is designated as attainment and another part as nonattainment,
  the applicable threshold for a proposed source or modification is determined based on the designation where
  the source would be located. If the source straddles the two areas, the more stringent thresholds would apply.

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Sec.  49.154  Permit application requirements.

    This section applies to you if you are subject to this program
under Sec.  49.153(a)(1) for the construction of new minor sources or
modifications at existing sources. (As an alternative, you may apply
for a general permit under Sec.  49.156 if an applicable general permit
is available for your source type.) In addition, this section applies
to you if you wish to establish a minor source PAL for your existing
minor source (See Sec.  49.153(a)(4)). See Sec.  49.158(a) for
synthetic minor permit application requirements.
    (a) What information must my permit application contain? Paragraphs
(a)(1) through (3) of this section govern the content of your
application.
    (1) General provisions for permit applications. The following
provisions apply to permit applications under this program:
    (i) The reviewing authority may develop permit application forms
for your use.
    (ii) The permit application need not contain information on the
exempt emissions units and activities listed in Sec.  49.153(c).
    (iii) The permit application for a modification need only include
information on the affected emissions units as defined in Sec.
49.152(d).
    (2) Required permit application content. Except as specified in
paragraphs (a)(1)(ii) and (iii) of this section, you must include the
information listed in paragraphs (a)(2)(i) through (ix) of this section
in your application for a permit under this program. The reviewing
authority may require additional information as needed to process the
permit application.
    (i) Identifying information, including your name and address (and
plant name and address if different) and the name and telephone number
of the plant manager/contact.
    (ii) A description of your source's processes and products.
    (iii) A list of all affected emissions units (with the exception of
the exempt emissions units and activities listed in Sec.  49.153(c)).
    (iv) For each new emissions unit that is listed, the potential to
emit of each regulated NSR pollutant in tpy (including fugitive
emissions, to the extent that they are quantifiable), with supporting
documentation. In your calculation of the potential to emit for an
emissions unit, you must account for any proposed emission limitations.
    (v) For each modified emissions unit and replacement unit that is
listed, the allowable emissions of each regulated NSR pollutant in tpy
both before and after the modification (including fugitive emissions,
to the extent that they are quantifiable), with supporting
documentation. For emissions units that do not have an allowable
emissions limit prior to the modification, report the potential to
emit. In your calculation of annual allowable emissions for an
emissions unit after the modification, you must account for any
proposed emission limitations.
    (vi) The following information to the extent it is needed to
determine or regulate emissions: fuels, fuel use, raw materials,
production rates, and operating schedules.
    (vii) Identification and description of any existing air pollution
control equipment and compliance monitoring devices or activities.
    (viii) Any existing limitations on source operation affecting
emissions or any work practice standards, where applicable, for all NSR
regulated pollutants at the source.
    (ix) For each emission point associated with an affected emissions
unit, provide stack or vent dimensions and flow information.
    (3) Optional permit application content. At your option, you may
propose the following:
    (i) Emission limitations for each affected emissions unit, which
may include pollution prevention techniques, air pollution control
devices, design standards, equipment standards, work practices,
operational standards, or a combination thereof. You may include an
explanation of why you believe the proposed emission limitations to be
appropriate.
    (ii) A minor source PAL, which is a source-wide annual allowable
emissions limit, for one or more of the regulated NSR pollutants
emitted by your source.
    (b) How is my permit application determined to be complete?
Paragraphs (b)(1) through (3) of this section govern the completeness
review of your permit application.
    (1) An application for a permit under this program will be reviewed
by the reviewing authority within 45 days of its receipt to determine
whether the application contains all the information necessary for
processing the application. You should contact the reviewing authority
to find out the date of receipt of the application.
    (2) If the reviewing authority determines that the application is
not complete, it will request additional information from you as
necessary to process the application. If the reviewing authority
determines that the application is complete, it may notify you in
writing. If you do not receive a request for additional information or
a notice of complete application from the reviewing authority within 50
days of its receipt of your application, your application will be
deemed complete.
    (3) If, while processing an application that has been determined to
be complete, the reviewing authority determines that additional
information is necessary to evaluate or take final action on the
application, it may request additional information from you and require
your responses within a reasonable time period.
    (c) How will the reviewing authority determine the emission
limitations that will be required in my permit? After determining that
your application is complete, the reviewing authority will conduct a
case-by-case control technology review to determine the appropriate
level of control, if any, necessary to assure that NAAQS are achieved,
as well as the corresponding emission limitations for the affected
emissions units at your source.
    (1) In carrying out this case-by-case review, the reviewing
authority will consider the following factors:
    (i) Local air quality conditions.
    (ii) Typical control technology or other emissions reduction
measures used by similar sources in surrounding areas.
    (iii) Anticipated economic growth in the area.
    (iv) Cost-effective emission reduction alternatives.
    (2) The reviewing authority must require an emission limit (i.e., a
limit on the quantity, rate, or concentration of emissions) for each
affected emissions unit at your source for which such a limit is
technically and economically feasible.
    (3) The emission limitations required by the reviewing authority
may consist of emission limits, pollution prevention techniques, design
standards, equipment standards, work practice standards, operational
standards, or any combination thereof.
    (4) The emission limitations required by the reviewing authority
must assure that each affected emissions unit will comply with all
requirements of parts 60, 61, and 63 of this chapter that apply to the
unit.
    (5) The emission limitations required by the reviewing authority
must not be affected in any manner by so much of a stack's height as
exceeds good engineering practice or by any other dispersion technique,
except as provided in Sec.  51.118(b) of this chapter. If the reviewing
authority proposes to issue a permit to a source based on a good
engineering practice stack height that exceeds the height allowed by
Sec.  51.100(ii)(1) or (2) of this chapter, it

must notify the public of the availability of the demonstration study
and must provide opportunity for a public hearing according to the
requirements of Sec.  49.157 for the draft permit.
    (d) When may the reviewing authority require an air quality impacts
analysis (AQIA)? Paragraphs (d)(1) through (3) of this section govern
AQIA requirements under this program.
    (1) In those rare instances where the reviewing authority has
reason to be concerned that the construction of your minor source or
modification would cause or contribute to a NAAQS or PSD increment
violation, it may require you to conduct and submit an AQIA.
    (2) If required, you must conduct the AQIA using the dispersion
models and procedures of part 51, Appendix W of this chapter.
    (3) If the AQIA reveals that construction of your source or
modification would cause or contribute to a NAAQS or PSD increment
violation, the reviewing authority must require you to reduce such
impacts before it can issue you a permit.

Sec.  49.155  Permit requirements.

    This section applies to your permit if you are subject to this
program under Sec.  49.153(a)(1) for construction of new minor sources
or modifications at existing sources, unless you applied for a general
permit under Sec.  49.156 (where an applicable general permit is
available for your source type). In addition, this section applies to
your permit if you wish to establish a minor source PAL for your
existing minor source (See Sec.  49.153(a)(4))
    (a) What information must my permit include? Your permit must
include the requirements in paragraphs (a)(1) through (7) of this
section.
    (1) General requirements. The following elements must be included
in your permit:
    (i) The effective date of the permit and the date by which you must
commence construction in order for your permit to remain valid (i.e.,
18 months after the permit effective date).
    (ii) The emissions units subject to the permit and their associated
emission limitations.
    (iii) Monitoring, recordkeeping, reporting, and testing
requirements to assure compliance with the emission limitations.
    (2) Emission limitations. The permit must include the emission
limitations determined by the reviewing authority under Sec.  49.154(c)
for each affected emissions unit. In addition, the permit must address
limits on annual allowable emissions as set out in paragraphs (a)(2)(i)
and (ii) of this section.
    (i) New minor sources. For new minor sources, limits on annual
allowable emissions in tpy must be included in the permit as follows:
    (A) The reviewing authority may include minor source PALs for one
or more regulated NSR pollutants, if you requested such PALs.
    (B) Otherwise, the reviewing authority must include an annual
allowable emissions limit for each affected emissions unit, for each
regulated NSR pollutant emitted by the unit that is not subject to a
minor source PAL.
    (ii) Existing minor sources. For existing minor sources, limits on
annual allowable emissions in tpy must be included in the permit as
follows:
    (A) The reviewing authority may include minor source PALs for one
or more regulated NSR pollutants, if you requested such PALs.
    (B) For a modification, the reviewing authority must include an
annual allowable emissions limit for each affected emissions unit, for
each regulated NSR pollutant emitted by the unit that is not subject to
a minor source PAL.
    (C) If you apply for a minor source PAL for one or more regulated
NSR pollutants for your existing source at a time when you are not also
proposing a modification, no annual allowable emissions limits are
required for the regulated NSR pollutants that are not subject to a
PAL.
    (3) Monitoring requirements. The permit must include monitoring
requirements sufficient to assure compliance with the emission
limitations that apply to the affected emissions units at your source.
The reviewing authority may require, as appropriate, any of the
requirements in paragraphs (a)(3)(i) through (iii) of this section.
    (i) Any emissions monitoring, including analysis procedures, test
methods, periodic testing, instrumental monitoring, and non-
instrumental monitoring. Such monitoring requirements shall assure use
of test methods, units, averaging periods, and other statistical
conventions consistent with the required emission limitations.
    (ii) As necessary, requirements concerning the use, maintenance,
and installation of monitoring equipment or methods.
    (iii) If the permit includes a minor source PAL for a pollutant at
your minor source, monitoring to determine the actual emissions from
your source for each month and the total actual emissions for each 12-
month period, rolled monthly, for that pollutant.
    (4) Recordkeeping requirements. The permit must include
recordkeeping requirements sufficient to assure compliance with the
emission limitations and monitoring requirements, and must require the
elements in paragraphs (a)(4)(i) and (ii) of this section.
    (i) Records of required monitoring information that include the
information in paragraphs (a)(4)(i)(A) through (F) of this section, as
appropriate.
    (A) The location, date, and time of sampling or measurements.
    (B) The date(s) analyses were performed.
    (C) The company or entity that performed the analyses.
    (D) The analytical techniques or methods used.
    (E) The results of such analyses.
    (F) The operating conditions existing at the time of sampling or
measurement.
    (ii) Retention for 5 years of records of all required monitoring
data and support information for the monitoring sample, measurement,
report, or application. Support information may include all calibration
and maintenance records, all original strip-chart recordings or digital
records for continuous monitoring instrumentation, copies of all
reports required by the permit, and for sources with a minor source PAL
for a pollutant, the actual emissions determined for each month and the
total actual emissions for each 12-month period, rolled monthly, for
that pollutant.
    (5) Reporting requirements The permit must include the reporting
requirements in paragraphs (a)(5)(i) and (ii) of this section.
    (i) Annual submittal of reports of monitoring required under
paragraph (a)(3) of this section, including the type and frequency of
monitoring, and a summary of results obtained by monitoring.
    (ii) Prompt reporting of deviations from permit requirements,
including those attributable to upset conditions as defined in the
permit, the probable cause of such deviations, and any corrective
actions or preventive measures taken. Within the permit, the reviewing
authority must define ``prompt'' in relation to the degree and type of
deviation likely to occur and the applicable emission limitations.
    (6) Severability clause. The permit must include a severability
clause to ensure the continued validity of the other portions of the
permit in the event of a challenge to a portion of the permit.
    (7) Additional provisions. The permit must also contain provisions
stating the requirements in paragraphs (a)(7)(i) through (vii) of this
section.

    (i) You, as the permittee, must comply with all conditions of your
permit, including emission limitations that apply to the affected
emissions units at your source. Noncompliance with any permit term or
condition is a violation of the permit and may constitute a violation
of the Act and is grounds for enforcement action and for a permit
termination or revocation.
    (ii) Your permitted source must not cause or contribute to a NAAQS
violation or, in an attainment area, must not cause or contribute to a
PSD increment violation.
    (iii) It is not a defense for you, as the permittee, in an
enforcement action that it would have been necessary to halt or reduce
the permitted activity in order to maintain compliance with the
conditions of this permit.
    (iv) The permit may be revised, reopened, revoked and reissued, or
terminated for cause. The filing of a request by you, as the permittee,
for a permit revision, revocation and re-issuance, or termination, or
of a notification of planned changes or anticipated noncompliance does
not stay any permit condition.
    (v) The permit does not convey any property rights of any sort or
any exclusive privilege.
    (vi) You, as the permittee, shall furnish to the reviewing
authority, within a reasonable time, any information that the reviewing
authority may request in writing to determine whether cause exists for
revising, revoking and reissuing, or terminating the permit or to
determine compliance with the permit. For any such information claimed
to be confidential, you must also submit a claim of confidentiality in
accordance with part 2, subpart B of this chapter.
    (vii) Inspection and entry provisions requiring that upon
presentation of proper credentials, you, as the permittee, must allow a
representative of the reviewing authority to:
    (A) Enter upon your premises where a source is located or
emissions-related activity is conducted, or where records are required
to be kept under the conditions of the permit;
    (B) Have access to and copy, at reasonable times, any records that
are required to be kept under the conditions of the permit;
    (C) Inspect, during normal business hours or while the source is in
operation, any facilities, equipment (including monitoring and air
pollution control equipment), practices, or operations regulated or
required under the permit;
    (D) Sample or monitor, at reasonable times, substances or
parameters for the purpose of assuring compliance with the permit or
other applicable requirements; and
    (E) Record any inspection by use of written, electronic, magnetic
and photographic media.
    (b) Can my permit become invalid? Your permit becomes invalid if
you do not commence construction within 18 months after the effective
date of your permit, if you discontinue construction for a period of 18
months or more, or if you do not complete construction within a
reasonable time. The reviewing authority may extend the 18-month period
upon a satisfactory showing that an extension is justified. This
provision does not apply to the time period between construction of the
approved phases of a phased construction project; you must commence
construction of each such phase within 18 months of the projected and
approved commencement date.

Sec.  49.156  General permits.

    This section applies to general permits for the purposes of
complying with the preconstruction permitting requirements for sources
of regulated NSR pollutants under this program.
    (a) What is a general permit? A general permit is a preconstruction
permit issued by a reviewing authority that may be applied to a number
of similar emissions units or sources. The purpose of a general permit
is to simplify the permit application and issuance process for similar
facilities so that a reviewing authority's limited resources need not
be expended for case-by-case permit development for such facilities. A
general permit may be written to address a single emissions unit, a
group of the same type of emissions units, or an entire minor source.
    (b) How will the reviewing authority issue general permits? The
reviewing authority will issue general permits as follows:
    (1) A general permit may be issued for a category of emissions
units or sources that are similar in nature, have substantially similar
emissions, and would be subject to the same or substantially similar
requirements governing operations, emissions, monitoring, reporting,
and recordkeeping. ``Similar in nature'' refers to size, processes, and
operating conditions.
    (2) A general permit must be issued according to the requirements
for public participation in Sec.  49.157 and the requirements for final
permit issuance and administrative and judicial review in Sec.  49.159.
    (3) Issuance of a general permit is considered final agency action
with respect to all aspects of the general permit except its
applicability to an individual source. The sole issue that may be
appealed after an individual source is approved to construct under a
general permit (See paragraph (e) of this section) is the applicability
of the general permit to that particular source.
    (c) For what categories will general permits be issued? (1) The
reviewing authority will determine which categories of individual
emissions units, groups of similar emissions units, or sources are
appropriate for general permits in its area.
    (2) General permits will be issued at the discretion of the
reviewing authority. However, the following are some common categories
of emissions units or sources for which general permits may be
developed:
    (i) Autobody repair shops.
    (ii) Concrete batching plants.
    (iii) Dry cleaners.
    (iv) Gas stations.
    (v) Gas distribution facilities.
    (vi) General purpose internal combustion engines.
    (vii) Hot mix asphalt facilities.
    (viii) Heating units.
    (ix) Nonmetallic mineral processing plants.
    (x) Rock crushing facilities.
    (xi) Surface coating operations.
    (xii) Solvent cleaning operations.
    (xiii) Graphic arts operations.
    (xiv) Grain elevators.
    (xv) Tank batteries in oil and gas production operations that are
not part of a larger source.
    (xvi) Small to medium compressor stations.
    (xvii) Small to medium transmission stations.
    (xviii) Dehydrators that are not a part of a larger source.
    (xix) Compressor engines.
    (d) What should the general permit contain? The general permit must
contain the permit elements listed in Sec.  49.155(a). In addition, the
general permit must contain the information listed in paragraphs (d)(1)
and (2) of this section. The reviewing authority may specify additional
general permit terms and conditions.
    (1) Identification of the specific category of emissions units or
sources to which the general permit applies, including any criteria
that your emissions units or source must meet to be eligible for
coverage under the general permit.
    (2) Information required to apply for coverage under a general
permit including, but not limited to, the following:

    (i) The name and mailing address of the reviewing authority to whom
you must submit your application.
    (ii) The procedure to obtain any standard application forms that
the reviewing authority may have developed.
    (iii) The information that you must provide to the reviewing
authority in your application to demonstrate that you are eligible for
coverage under the general permit.
    (iv) Other application requirements deemed necessary by the
reviewing authority.
    (e) How is my source issued a general permit? (1) If your source
qualifies for a general permit, you may apply to the reviewing
authority for coverage under the general permit.
    (2) The reviewing authority must act on your application for
coverage under the general permit as expeditiously as possible, but it
must notify you of the final decision within 90 days.
    (3) Without repeating the public participation procedures required
in Sec.  49.157, the reviewing authority may grant or deny your request
for approval to construct under a general permit. The reviewing
authority must send you a letter approving or disapproving the request
to construct under a general permit. Such a letter is a final permit
action for purposes of judicial review (See Sec.  49.159) only for the
issue of whether your source qualifies for the general permit. You must
post a prominent notice at your source of the letter of approval to
construct under the general permit.
    (4) If the reviewing authority has sent a letter approving the
general permit for your source, you must comply with all conditions and
terms of the general permit. You will be subject to enforcement action
for failure to obtain a preconstruction permit if you construct the
emissions unit(s) or source with general permit approval and your
source is later determined not to qualify for the conditions and terms
of the general permit.
    (5) Any source covered under a letter approving the general permit
may request to be excluded from the general permit by applying for a
permit under Sec.  49.154.

Sec.  49.157  Public participation requirements.

    This section applies to the issuance of preconstruction permits,
synthetic minor permits, and the initial issuance of general permits.
It does not apply to decisions regarding whether a specific source is
eligible for coverage under a general permit.
    (a) What permit information will be publicly available? With the
exception of any confidential information as defined in part 2, subpart
B of this chapter, the reviewing authority must make available for
public inspection the documents listed in paragraphs (a)(1) through (5)
of this section. The reviewing authority must make such information
available for public inspection at the appropriate EPA Regional Office
and in at least one location in the area affected by the source, such
as the tribal environmental office or a local library.
    (1) All information submitted as part of an application for a
permit.
    (2) Any additional information requested by the reviewing
authority.
    (3) The reviewing authority's analysis of the application and any
additional information submitted by the source, including (for
preconstruction and general permits) the control technology review.
    (4) For preconstruction and general permits, the reviewing
authority's analysis of the effect of the construction of the minor
source or modification on ambient air quality.
    (5) A copy of the draft permit or the decision to deny the permit
with the justification for denial.
    (b) How will the public be notified and participate? (1) Before
issuing a permit under this program, the reviewing authority must
prepare a draft permit and must provide adequate public notice to
ensure that the affected community and the general public have
reasonable access to the application and draft permit information, as
set out in paragraphs (b)(1)(i) and (ii) of this section The public
notice must provide an opportunity for public comment and notice of a
public hearing, if any, on the draft permit.
    (i) The reviewing authority must mail a copy of the notice to you,
the appropriate Indian governing body, and the tribal, State, and local
air pollution authorities having jurisdiction in areas outside of the
area of Indian country potentially impacted by the air pollution
source.
    (ii) Depending on such factors as the nature and size of your
source, local air quality considerations, and the characteristics of
the population in the affected area, the reviewing authority must use
appropriate means of notification, such as those listed in paragraphs
(b)(1)(ii)(A) through (E) of this section.
    (A) The reviewing authority may mail or e-mail a copy of the notice
to persons on a mailing list developed by the reviewing authority
consisting of those persons who have requested to be placed on such a
mailing list.
    (B) The reviewing authority may post the notice on its Web site.
    (C) The reviewing authority may publish the notice in a newspaper
of general circulation in the area affected by the source. Where
possible, the notice may also be published in a tribal newspaper or
newsletter.
    (D) The reviewing authority may provide copies of the notice for
posting at one or more locations in the area affected by the source,
such as Post Offices, trading posts, libraries, tribal environmental
offices, community centers, or other gathering places in the community.
    (E) The reviewing authority may employ other means of notification
as appropriate.
    (2) The notice required pursuant to paragraph (b)(1) of this
section must include the following information at a minimum:
    (i) Identifying information, including your name and address (and
plant name and address if different) and the name and telephone number
of the plant manager/contact.
    (ii) The name and address of the reviewing authority processing the
permit action;
    (iii) For preconstruction permits (including general permits), the
regulated NSR pollutants to be emitted, the affected emissions units,
and the emission limitations for each affected emissions unit;
    (iv) For preconstruction permits, the emissions change involved in
the permit action;
    (v) For synthetic minor permits, a description of the proposed
limitation and its effect on the potential to emit of the source;
    (vi) Instructions for requesting a public hearing;
    (vii) The name, address, and telephone number of a contact person
in the reviewing authority's office from whom additional information
may be obtained;
    (viii) Locations and times of availability of the information
(listed in paragraph (a) of this section) for public inspection; and
    (ix) A statement that any person may submit written comments, a
written request for a public hearing, or both, on the draft permit
action. The reviewing authority must provide a period of at least 30
days from the date of the public notice for comments, and for requests
for a public hearing.
    (c) How will the public comment, and will there be a public
hearing? (1) Any person may submit written comments on the draft permit
and may request a public hearing. These comments must raise any
reasonably ascertainable issue

with supporting arguments by the close of the public comment period
(including any public hearing). The reviewing authority must consider
all comments in making the final decision. The reviewing authority must
keep a record of the commenters and of the issues raised during the
public participation process, and such records must be available to the
public.
    (2) The reviewing authority must extend the public comment period
under paragraph (b) of this section to the close of any public hearing
under this section. The hearing officer may also extend the comment
period by so stating at the hearing.
    (3) A request for a public hearing must be in writing and must
state the nature of the issues proposed to be raised at the hearing.
    (4) The reviewing authority must hold a hearing whenever there is,
on the basis of requests, a significant degree of public interest in a
draft permit. The reviewing authority may also hold a public hearing at
its discretion, whenever, for instance, such a hearing might clarify
one or more issues involved in the permit decision. The reviewing
authority must provide notice of any public hearing at least 30 days
prior to the date of the hearing. Public notice of the hearing may be
concurrent with that of the draft permit, and the two notices may be
combined. Reasonable limits may be set upon the time allowed for oral
statements at the hearing.
    (5) The reviewing authority must make a tape recording or written
transcript of any hearing available to the public.

Sec.  49.158  Synthetic minor permits.

    You may obtain a synthetic minor permit under this program to
establish a synthetic minor source and/or a synthetic minor HAP source.
Note that if you propose to construct or modify a synthetic minor
source, you are also subject to the preconstruction permitting
requirements in Sec. Sec.  49.154 and 49.155.
    (a) What information must my synthetic minor permit application
contain? (1) Your application must include the following information:
    (i) Identifying information, including your name and address (and
plant name and address if different) and the name and telephone number
of the plant manager/contact.
    (ii) For each regulated NSR pollutant and/or HAP and for all
emissions units to be covered by an emissions limitation, the following
information:
    (A) The proposed emission limitation and a description of its
effect on actual emissions or the potential to emit. Proposed emission
limitations must have a reasonably short averaging period, taking into
consideration the operation of the source and the methods to be used
for demonstrating compliance.
    (B) Proposed testing, monitoring, recordkeeping, and reporting
requirements to be used to demonstrate and assure compliance with the
proposed limitation.
    (C) A description of the production processes.
    (D) Identification of the emissions units.
    (E) Type and quantity of fuels and/or raw materials used.
    (F) Description and estimated efficiency of air pollution control
equipment under present or anticipated operating conditions.
    (G) Estimates of the current actual emissions and current potential
to emit, including all calculations for the estimates.
    (H) Estimates of the allowable emissions and/or potential to emit
that would result from compliance with the proposed limitation,
including all calculations for the estimates.
    (iii) Any other information specifically requested by the reviewing
authority.
    (2) Estimates of actual emissions must be based upon actual test
data, or in the absence of such data, upon procedures acceptable to the
reviewing authority. Any emission estimates submitted to the reviewing
authority must be verifiable using currently accepted engineering
criteria. The following procedures are generally acceptable for
estimating emissions from air pollution sources:
    (i) Source-specific emission tests;
    (ii) Mass balance calculations;
    (iii) Published, verifiable emission factors that are applicable to
the source;
    (iv) Other engineering calculations; or
    (v) Other procedures to estimate emissions specifically approved by
the reviewing authority.
    (b) What are the procedures for obtaining a synthetic minor permit?
(1) If you wish to obtain a synthetic minor permit under this program,
you must submit a permit application to the reviewing authority. The
application must contain the information specified in paragraph (a) of
this section. If the reviewing authority has developed application
forms for such permits, you must use those forms.
    (2) Within 60 days after receipt of an application, the reviewing
authority will determine if it contains the information specified in
paragraph (a) of this section and, if so, will determine it complete
for the purpose of preparing a draft synthetic minor permit. You should
contact the reviewing authority to find out the date of receipt of the
application.
    (3) If the reviewing authority determines that the application is
not complete, it will request additional information from you as
necessary to process the application. If the reviewing authority
determines that the application is complete, it may notify you in
writing. If you do not receive a request for additional information or
a notice of complete application from the reviewing authority within 65
days of its receipt of your application, your application will be
deemed complete.
    (4) The reviewing authority will prepare a draft synthetic minor
permit that describes the proposed limitation and its effect on the
potential to emit of the source.
    (5) The reviewing authority must provide an opportunity for public
participation and public comment on the draft synthetic minor permit as
set out in Sec.  49.157.
    (6) After the close of the public comment period, the reviewing
authority will review all comments received and prepare a final
synthetic minor permit.
    (7) The final synthetic minor permit will be issued and will be
subject to administrative and judicial review as set out in Sec.
49.159.
    (c) What are my responsibilities under this program for my existing
synthetic minor source or synthetic minor HAP source? If you have an
existing synthetic minor source or synthetic minor HAP source, you are
subject to either paragraph (c)(1) or paragraph (c)(2) of this section,
as follows:
    (1) If your synthetic minor status is established through a permit
or other document that is enforceable as a practical matter, you do not
need to do anything. You may use the mechanism established in this
program according to the requirements of paragraphs (a) and (b) of this
section to replace your existing synthetic minor permit when it
expires.
    (2) If you have achieved your existing synthetic minor status by
maintaining your actual emissions at less than 50 percent of the
relevant major source threshold, you must obtain a synthetic minor
permit under this program according to the requirements of paragraphs
(a) and (b) of this section. The following provisions apply:
    (i) You must apply for a synthetic minor permit by [1 year and 60
days after publication of final rule], and you must respond in a timely
manner to any requests from the reviewing authority for additional
information.

    (ii) Provided that you submit your application and any requested
additional information as indicated in paragraph (c)(2)(i) of this
section, your source will continue to be considered a synthetic minor
source or synthetic minor HAP source (as applicable) until your
synthetic minor permit under this program has been issued.
    (iii) Should you fail to submit your application and any requested
additional information as indicated in paragraph (c)(2)(i) of this
section, your source will no longer be considered a synthetic minor
source or synthetic minor HAP source (as applicable), and will
immediately become subject to all requirements for major sources.

Sec.  49.159  Final permit issuance and administrative and judicial
review.

    (a) How will final action occur, and when will my permit become
effective? After decision on a permit, the reviewing authority must
notify you of the decision, in writing, and if the permit is denied, of
the reasons for such denial. If the reviewing authority issues a final
permit to you, it must make a copy of the permit available at all of
the locations where the draft permit was made available. In addition,
the reviewing authority must provide adequate public notice of the
final permit decision to ensure that the affected community, general
public, and any individuals who commented on the draft permit have
reasonable access to the decision and supporting materials. A final
permit becomes effective 30 days after permit issuance, unless:
    (1) A later effective date is specified in the permit; or
    (2) Review of the final permit is requested under paragraph (d) of
this section (in which case the specific terms and conditions of the
permit that may be the subject of the request for review must be
stayed); or
    (3) The reviewing authority may make the permit effective
immediately upon issuance if no comments requested a change in the
draft permit or a denial of the permit.
    (b) For how long will the reviewing authority retain my permit-
related records? The records, including any required applications for
each draft and final permit or application for permit revision, must be
kept by the reviewing authority for not less than 5 years.
    (c) What is the administrative record for each final permit? (1)
The reviewing authority must base final permit decisions on an
administrative record consisting of:
    (i) The application and any supporting data furnished by the
applicant;
    (ii) The draft permit or notice of intent to deny the application;
    (iii) Other documents in the supporting files for the draft permit
that were relied upon in the decisionmaking;
    (iv) All comments received during the public comment period,
including any extension or reopening;
    (v) The tape or transcript of any hearing(s) held;
    (vi) Any written material submitted at such a hearing;
    (vii) Any new materials placed in the record as a result of the
reviewing authority's evaluation of public comments;
    (viii) The final permit; and
    (ix) Other documents in the supporting files for the final permit
that were relied upon in the decisionmaking.
    (2) The additional documents required under paragraph (c)(1) of
this section should be added to the record as soon as possible after
their receipt or publication by the reviewing authority. The record
must be complete on the date the final permit is issued.
    (3) Material readily available or published materials that are
generally available and that are included in the administrative record
under the standards of paragraph (c)(1) of this section need not be
physically included in the same file as the rest of the record as long
as it is specifically referred to in the that file.
    (d) Can permit decisions be appealed? Permit decisions may be
appealed according to the following provisions:
    (1) The Administrator delegates authority to the Environmental
Appeals Board (the Board) to issue final decisions in permit appeals
filed under this program, including informal appeals of denials of
requests for modification, revocation and re-issuance, or termination
of permits under paragraph (e)(2) of this section. An appeal directed
to the Administrator, rather than to the Board, will be forwarded to
the Board for consideration. This delegation does not preclude the
Board from referring an appeal or a motion under this program to the
Administrator when the Board, in its discretion, deems it appropriate
to do so. When an appeal or motion is referred to the Administrator by
the Board, all parties shall be so notified and the provisions of this
program referring to the Board shall be interpreted as referring to the
Administrator.
    (2) Within 30 days after a final permit decision has been issued,
any person who filed comments on the draft permit or participated in
the public hearing may petition the Board to review any condition of
the permit decision. Any person who failed to file comments and failed
to participate in the public hearing on the draft permit may petition
for administrative review only to the extent that the changes from the
draft to the final permit or other new grounds were not reasonably
foreseeable during the public comment period on the draft permit. The
30-day period within which a person may request review under this
section begins when the reviewing authority has fulfilled the notice
requirements for the final permit decision, unless a later date is
specified in that notice.
    (3) The petition must include a statement of the reasons supporting
the review, including a demonstration that any issues identified were
raised during the public comment period (including any public hearing)
to the extent required by these regulations, unless the petitioner
demonstrates that it was impracticable to raise such objections within
such period or unless the grounds for such objection arose after such
period, and, when appropriate, a showing that the condition in question
is based on:
    (i) A finding of fact or conclusion of law that is clearly
erroneous; or
    (ii) An exercise of discretion or an important policy consideration
that the Board should, in its discretion, review.
    (4) The Board may also decide on its own initiative to review any
condition of any permit issued under this program.
    (5) Within a reasonable time following the filing of the petition
for review, the Board must issue an order either granting or denying
the petition for review. To the extent review is denied, the conditions
of the final permit decision become final agency action. If the Board
grants review in response to requests under paragraph (d)(2) or (4) of
this section, public notice must be given as provided in
Sec. 49.157(b). Public notice must set forth a briefing schedule for
the appeal and must state that any interested person may file an amicus
brief. If the Board denies review, the permit applicant and the
person(s) requesting review must be notified through means that are
adequate to assure reasonable access to the decision, which may include
mailing a notice to each.
    (6) A petition to the Board under paragraph (d)(2) of this section
is, under 42 U.S.C. 307(b), a prerequisite to seeking judicial review
of the final agency action.
    (7) For purposes of judicial review, final agency action occurs
when a final permit is issued or denied by the reviewing authority and
agency review procedures are exhausted. A final

permit decision must be issued by the reviewing authority:
    (i) When the Board issues notice to the parties that review has
been denied;
    (ii) When the Board issues a decision on the merits of the appeal
and the decision does not include a remand of the proceedings; or
    (iii) Upon the completion of remand proceedings if the proceedings
are remanded, unless the Board's remand order specifically provides
that appeal of the remand decision will be required to exhaust
administrative remedies.
    (8) Motions to reconsider a final order must be filed within 10
days after service of the final order. Every such motion must set forth
the matters claimed to have been erroneously decided and the nature of
the alleged errors. Motions for reconsideration under this provision
must be directed to, and decided by, the Board. Motions for
reconsideration directed to the Administrator, rather than to the
Board, will be forwarded to the Board for consideration, except in
cases in which the Board has deferred to the Administrator and the
Administrator has issued the final order. A motion for reconsideration
must not stay the effective date of the final order unless specifically
so ordered by the Board.
    (9) For purposes of this section, time periods are computed as
follows:
    (i) Any time period scheduled to begin on the occurrence of an act
or event must begin on the day after the act or event.
    (ii) Any time period scheduled to begin before the occurrence of an
act or event must be computed so that the period ends on the day before
the act or event, except as otherwise provided.
    (iii) If the final day of any time period falls on a weekend or
legal holiday, the time period must be extended to the next working
day.
    (iv) Whenever a party or interested person has the right or is
required to act within a prescribed period after the service of notice
or other paper upon him or her by mail, 3 days must be added to the
prescribed time.
    (e) Can my permit be reopened? Your permit can be reopened
according to the following procedures: