PSD, nonattainment major NSR or Clean Air Act title V program and/or a
synthetic minor HAP source for purposes of part 63 of the Act or the
applicable Clean Air Act title V program. Any source that becomes a
synthetic minor source for NSR and title V purposes but has other
applicable requirements or becomes a synthetic minor for NSR but is
major for title V purposes, remains subject to the applicable title V
program. 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, except for the permit
application content and permit application completeness provisions
included in Sec.  49.154(a)(2) and Sec.  49.154(b).
    (a) What information must my synthetic minor source 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 source
permit?
    (1) If you wish to obtain a synthetic minor source 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.
    (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.
    (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 will notify you in
writing. The reviewing authority's completeness determination or
request for additional information should be postmarked within 60 days
of receipt of the permit application by the reviewing authority. If you
do not receive a request for additional information or a notice of
complete application postmarked within 60 days of receipt of the permit
application by the reviewing authority, your application will be deemed
complete
    (4) The reviewing authority will prepare a draft synthetic minor
source 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 source
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 source permit.
    (7) The final synthetic minor source permit will be granted or
denied no later than 1 year after the date the application is deemed
complete and all additional information necessary to make an informed
decision has been provided.
    (8) The final synthetic minor source 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 source
that already has synthetic minor source or synthetic minor HAP source
status prior to the effective date of this rule (that is, prior to
August 30, 2011)?
    (1) If your existing synthetic minor source and/or synthetic minor
HAP source was established pursuant to the FIPs applicable to the
Indian reservations in Idaho, Oregon and Washington or was established
under an EPA-approved rule or permit program limiting potential to
emit, you do not need to take any action under this program unless you
propose a modification for this existing synthetic minor source and/or
synthetic minor HAP source, on or after the effective date of this
rule, that is, on or after August 30, 2011. For these modifications,
you need to obtain a permit pursuant to Sec.  49.158 prior to
commencing construction.
    (2) If your existing synthetic minor source and/or synthetic minor
HAP source was established under a permit with enforceable emissions
limitations issued pursuant to part 71 of this chapter, the reviewing
authority has the discretion to do any of the following:
    (i) Allow you to maintain the synthetic minor status for your
source through your permit under part 71 of this chapter, including
subsequent renewals of that permit.
    (ii) Require you to submit an application for a synthetic minor
source permit under this program by September 4, 2012, subject to the
provisions in paragraphs (a) and (c)(4)(i) through (iii) of this
section. The reviewing authority also has the discretion to require any
additional requirements, including control technology requirements,
based on the specific circumstances of the source.
    (iii) Require you to submit an application for a synthetic minor
source permit under this program at the same time that you apply to
renew your permit under part 71 of this chapter, subject to the
provisions in paragraphs (a) and (c)(4)(i) through (iii) of this
section. The reviewing authority also has the discretion to require any
additional requirements, including control technology requirements,
based on the specific circumstances of the source.
    (3) If your existing synthetic minor source and/or synthetic minor
HAP source was established through a mechanism other than those
described in paragraphs (c)(1) and (c)(2) of this section, you must
submit an application for a synthetic minor source permit under this
program by September 4, 2012, subject to the provisions in paragraphs
(a) and (c)(4)(i) through (iii) of this section
    (4) If you are required to obtain a synthetic minor source permit
under this program for your existing synthetic minor source and/or
synthetic minor HAP source, the following provisions apply:
    (i) After submitting your synthetic minor source permit
application, you must respond in a timely manner to any requests from
the reviewing authority for additional information.
    (ii) Provided that you submit your application as required in
paragraph (c)(2)(ii), (c)(2)(iii) or (c)(3) (as applicable) and any
requested additional information as required in paragraph (c)(4)(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 source permit under this program has been issued.
Issuance of your synthetic minor source permit under this program will
be in accordance with the applicable requirements in Sec. Sec.  49.154
and 49.155 and all other provisions under this section.
    (iii) Should you fail to submit your application as required in
paragraph (c)(2)(ii), (c)(2)(iii) or (c)(3) (as applicable) or any
requested additional information as required in paragraph (c)(4)(i) of
this section, your source will no longer be considered a synthetic
minor source or synthetic minor HAP source (as applicable) and will
become subject to all requirements for major sources. In the case of
sources subject to section (c)(2)(iii) of this section, the renewed
part 71 permit will not contain enforceable emissions limitations and
instead will include applicable major source requirements.

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 and the procedures for
appeal. 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
according to 49.157(b)(1), for synthetic minor sources and minor
modifications at major sources and according to one or more of the
provisions in Sec.  49.157(b)(1)(ii)(A)-(E) for site-specific permits.
A final permit becomes effective 30 days after service of notice of the
final permit decision, 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 are 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 you, the
permit 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 decision-making;
    (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 decision-making.
    (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 preparation 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 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. An appeal directed to the Administrator,
rather than to the Board, will not be considered. 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 or 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
ascertainable during the public comment period on the draft permit. The
30-day period within which a person may request review under this
section begins with the service of notice of 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 being raised were
raised during the public comment period (including any public hearing)
to the extent required by these regulations, unless the petitioner
demonstrates that such objections were not reasonably ascertainable
within 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 will 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)-(3) 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, you, 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 party.
    (6) The reviewing authority, at any time prior to the rendering of
a decision under paragraph (d)(5) of this section to grant or deny
review of a permit decision, may, upon notification to the Board and
any interested parties, withdraw the permit and prepare a new draft
permit addressing the portions so withdrawn. The new draft permit shall
proceed through the same process of public comment and opportunity for
a public hearing as would apply to any other draft permit subject to
this subpart and in accordance with Sec.  49.157.
    (7) A petition to the Board under paragraph (d)(2) of this section
is, under section 307(b) of the Act, a prerequisite to seeking judicial
review of the final agency action.
    (8) 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 will 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.
    (9) 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 not be considered, except
in cases the Board has referred to the Administrator pursuant to Sec.
49.159(d)(1) and in which the Administrator has issued the final order.
A motion for reconsideration will not stay the effective date of the
final order unless specifically so ordered by the Board.
    (10) 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? The reviewing authority may reopen
an existing, currently-in-effect permit for cause on its own
initiative, such as if it contains a material mistake or fails to
assure compliance with applicable requirements. However, except for
those permit reopenings that do not increase the emissions limitations
in the permit, such as permit reopenings that correct typographical,
calculation and other errors, all other permit reopenings shall be
carried out after the opportunity of public notice and comment and in
accordance with one or more of the public participation requirements
under Sec.  49.157(b)(1)(ii).
    (f) What is an administrative permit revision? The following
provisions govern administrative permit revisions.
    (1) An administrative permit revision is a permit revision that
makes any of the following changes:
    (i) Corrects typographical errors.
    (ii) Identifies a change in the name, address or phone number of
any person identified in the permit or provides a similar minor
administrative change at the source.
    (iii) Requires more frequent monitoring or reporting by the
permittee.
    (iv) Allows for a change in ownership or operational control of a
source where the reviewing authority determines that no other change in
the permit is necessary, provided that a written agreement containing a
specific date for transfer of permit responsibility, coverage and
liability between the current and new permittee has been submitted to
the reviewing authority.
    (v) Establishes an increase in an emissions unit's annual allowable
emissions limit for a regulated NSR pollutant, when the action that
necessitates such increase is not otherwise subject to review under
major NSR or under this program.
    (vi) Incorporates any other type of change that the reviewing
authority has determined to be similar to those in paragraphs (f)(1)(i)
through (v) of this section.
    (2) An administrative permit revision is not subject to the permit
application, issuance, public participation or administrative and
judicial review requirements of this program.

Sec.  49.160  Registration program for minor sources in Indian country.

    (a) Does this section apply to my source? This section applies to
you if you are the owner/operator of a true minor source.
    (b) What is exempted from this section? The exemptions in
paragraphs (b)(1) and (b)(2) of this section apply to the registration
program of this section.
    (1) You are exempt from this registration program if any of the
following paragraphs applies to your source:
    (i) Your source is subject to the registration requirements under
Sec.  49.138--``Rule for the registration of air pollution sources and
the reporting of emissions.''
    (ii) Your source has a part 71 permit.
    (iii) Your source is a synthetic minor source or a synthetic minor
HAP source or a minor modification at a major source as defined in
Sec.  49.152(d).
    (2) For purposes of determining the potential to emit, allowable or
actual emissions of your source, you are not required to include
emissions from the exempted emissions units and activities listed in
Sec.  49.153(c).
    (c) What are the requirements for registering your minor source?
The requirements for registrations are as follows:
    (1) Due date. The due date of your source registration varies
according to the following paragraphs:
    (i) If you own or operate an existing true minor source (as defined
in 40 CFR 49.152(d)), you must register your source with your reviewing
authority 18 months after the effective date of this program, that is,
March 1, 2013.
    (ii) If your true minor source commences construction in the time
period between the effective date of the rule and September 2, 2014,
you must register your source with your reviewing authority within 90
days after the source begins operation.
    (iii) If construction or modification of your source commenced any
time on or after September 2, 2014 and your source is subject to this
rule, you must report your source's actual emissions (if available) as
part of your permit application and your permit application information
will be used to fulfill the registration requirements described in
Sec.  49.160(c)(2).
    (2) Content. You must submit all registration information on forms
provided by the reviewing authority. Each registration must include the
following information, as applicable:
    (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 emissions units (with the exception of the
exempt emissions units and activities listed in Sec.  49.153(c)).
    (iv) For each emissions unit that is listed, both the allowable and
estimated actual annual emissions of each regulated NSR pollutant in
tpy (including fugitive emissions, to the extent that they are
quantifiable, if the emissions unit or source is in one of the source
categories listed in Sec.  51, Appendix S, paragraph II.A.4(iii) or
Sec.  52.21(b)(1)(iii) of this chapter), with supporting documentation.
    (v) The following information: Fuels, fuel use, raw materials,
production rates and operating schedules.
    (vi) Identification and description of any existing air pollution
control equipment and compliance monitoring devices or activities.
    (vii) Any existing limitations on source operation affecting
emissions or any work practice standards, where applicable, for all NSR
regulated pollutants at the source.
    (viii) Any other information specifically requested by the
reviewing authority.
    (3) Procedure for estimating emissions. Your registration should
include potential to emit or estimates of the allowable and actual
emissions, in tpy, of each regulated NSR pollutant for each emissions
unit at the source.
    (i) Estimates of allowable emissions must be consistent with the
definition of that term in Sec.  49.152(d). Allowable

emissions must be calculated based on 8,760 operating hours per year
(i.e., operating 24 hours per day, 365 days per year) unless the
reviewing authority approves a different number of annual operating
hours as the basis for the calculation.
    (ii) Estimates of actual emissions must take into account
equipment, operating conditions and air pollution control measures. For
a source that operated during the entire calendar year preceding the
initial registration submittal, the reported actual emissions typically
should be the annual emissions for the preceding calendar year,
calculated using the actual operating hours, production rates, in-place
control equipment and types of materials processed, stored or combusted
during the preceding calendar year. However, if you believe that the
actual emissions in the preceding calendar year are not representative
of the emissions that your source will actually emit in coming years,
you may submit an estimate of projected actual emissions along with the
actual emissions from the preceding calendar year and the rationale for
the projected actual emissions. For a source that has not operated for
an entire year, the actual emissions are the estimated annual emissions
for the current calendar year.
    (iii) The allowable and actual emission estimates 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 Regional Administrator.
    (4) Duty to obtain a permit. Submitting a registration does not
relieve you of the requirement to obtain any required permit, including
a preconstruction permit, if your source or any physical or operational
change at your source would be subject to any minor or major NSR rule.
    (d) What are the requirements for additional reports? After you
have registered your source, you must submit the following additional
reports, when applicable:
    (1) Report of relocation. After your source has been registered,
you must report any relocation of your source to the reviewing
authority in writing no later than 30 days prior to the relocation of
the source. However, you need not submit a report if you obtained a
major or minor NSR permit for the relocation. Submitting a report of
relocation does not relieve you of the requirement to obtain a
preconstruction permit if the change is subject to any major NSR or
minor NSR rule.
    (2) Report of change of ownership. After your source has been
registered, the new owner/operator must report any change of ownership
of a source to the reviewing authority in writing within 90 days after
the change in ownership is effective.
    (3) Report of closure. Except for regular seasonal closures, after
your source has been registered, you must submit a report of closure to
the reviewing authority in writing within 90 days after the cessation
of all operations at your source.

Sec.  49.161  Administration and delegation of the minor NSR program in
Indian country.

    (a) Who administers a minor NSR program in Indian country?
    (1) If the Administrator has approved a TIP that includes a minor
NSR program for sources in Indian country that meets the requirements
of section 110(a)(2)(C) of the Act and Sec. Sec.  51.160 through 51.164
of this chapter, the Tribe is the reviewing authority and it will
administer the approved minor NSR program under Tribal law.
    (2) If the Administrator has not approved an implementation plan,
the Administrator may delegate the authority to assist EPA with
administration of portions of this Federal minor NSR program
implemented under Federal authority to a Tribal agency upon request, in
accordance with the provisions of paragraph (b) of this section. If the
Tribal agency has been granted such delegation, it will have the
authority to assist EPA according to paragraph (b) of this section and
it will be the reviewing authority for purposes of the provisions for
which it has been granted delegation.
    (3) If the Administrator has not approved an implementation plan or
granted delegation to a Tribal agency, the Administrator is the
reviewing authority and will directly administer all aspects of this
Federal minor NSR program in Indian country under Federal authority.
    (b) Delegation of administration of the Federal minor NSR program
to Tribes. This paragraph (b) establishes the process by which the
Administrator may delegate authority to a Tribal agency, with or
without signature authority, to assist EPA with administration of
portions of this Federal minor NSR program, in accordance with the
provisions in paragraphs (b)(1) through (8) of this section. Any
Federal requirements under this program that are administered by the
delegate Tribal agency will be subject to enforcement by EPA under
Federal law. This section provides for administrative delegation of the
Federal minor NSR program and does not affect the eligibility criteria
under Sec.  49.6 for treatment in the same manner as a state.
    (1) Information to be included in the Administrative Delegation
Request. In order to be delegated authority to assist EPA with
administration of this FIP permit program for sources, the Tribal
agency must submit a request to the Administrator that:
    (i) Identifies the specific provisions for which delegation is
requested;
    (ii) Identifies the Indian Reservation or other areas of Indian
country for which delegation is requested;
    (iii) Includes a statement by the applicant's legal counsel (or
equivalent official) that includes the following information:
    (A) A statement that the applicant is a Tribe recognized by the
Secretary of the Interior;
    (B) A descriptive statement that is consistent with the type of
information described in Sec.  49.7(a)(2) demonstrating that the
applicant is currently carrying out substantial governmental duties and
powers over a defined area and
    (C) A description of the laws of the Tribe that provide adequate
authority to administer the Federal rules and provisions for which
delegation is requested and
    (iv) A demonstration that the Tribal agency has the technical
capability and adequate resources to administer the FIP provisions for
which the delegation is requested.
    (2) Delegation of Partial Administrative Authority Agreement. A
Delegation of Partial Administrative Authority Agreement (Agreement)
will set forth the terms and conditions of the delegation, will specify
the provisions that the delegate Tribal agency will be authorized to
implement on behalf of EPA and will be entered into by the
Administrator and the delegate Tribal agency. The Agreement will become
effective upon the date that both the Administrator and the delegate
Tribal agency have signed the Agreement or as otherwise stated in the
Agreement. Once the delegation becomes effective, the delegate Tribal
agency will be responsible, to the extent specified in

the Agreement, for assisting EPA with administration of the provisions
of the Federal minor NSR program that are subject to the Agreement.
    (3) Publication of notice of the Agreement. The Administrator will
publish a notice in the Federal Register informing the public of any
Agreement for a particular area of Indian country. The Administrator
also will publish the notice in a newspaper of general circulation in
the area affected by the delegation. In addition, the Administrator
will mail a copy of the notice to persons on a mailing list developed
by the Administrator consisting of those persons who have requested to
be placed on such a mailing list.
    (4) Revision or revocation of an Agreement. An Agreement may be
modified, amended or revoked, in part or in whole, by the Administrator
after consultation with the delegate Tribal agency.
    (5) Transmission of information to the Administrator. When
administration of a portion of the Federal minor NSR program in Indian
country that includes receipt of permit application materials and
preparation of draft permits has been delegated in accordance with the
provisions of this section, the delegate Tribal agency must provide to
the Administrator a copy of each permit application (including any
application for permit revision) and each draft permit. You, the permit
applicant, may be required by the delegate Tribal agency to provide a
copy of the permit application directly to the Administrator. With the
Administrator's consent, the delegate Tribal agency may submit to the
Administrator a permit application summary form and any relevant
portion of the permit application, in place of the complete permit
application. To the extent practicable, the preceding information
should be provided in electronic format by the delegate Tribal agency
or by you, the permit applicant, as applicable and as requested by the
Administrator. The delegate Tribal agency must also submit to the
Administrator such information as the Administrator may reasonably
require to ascertain whether the delegate Tribal agency is implementing
and administering the delegated program in compliance with the
requirements of the Act and of this program.
    (6) Waiver of information transmission requirements. The
Administrator may waive the requirements of paragraph (b)(5) of this
section for any category of sources (including any class, type or size
within such category) by transmitting the waiver in writing to the
delegate Tribal agency.
    (7) Retention of records. Where a delegate Tribal agency prepares
draft or final permits or receives applications for permit revisions on
behalf of EPA, the records for each draft and final permit or
application for permit revision must be kept by the delegate Tribal
agency for a period not less than 3 years.
    (8) Delegation of signature authority. To receive delegation of
signature authority, the legal statement submitted by the Tribal agency
pursuant to paragraph (b)(1) of this section must certify that no
applicable provision of Tribal law requires that a minor NSR permit be
issued after a certain time if the delegate Tribal agency has failed to
take action on the application (or includes any other similar provision
providing for default issuance of a permit).
    (c) Are there any non-delegable elements of the Federal minor NSR
program in Indian country? The following authorities cannot be
delegated outside of EPA:
    (1) The Administrator's authority to object to the issuance of a
minor NSR permit.
    (2) The Administrator's authority to enforce permits issued
pursuant to this program.
    (d) How will EPA transition its authority to an approved minor NSR
program?
    (1) The Administrator will suspend the issuance of minor NSR
permits under this program promptly upon publication of notice of
approval of a Tribal implementation plan with a minor NSR permit
program for that area.
    (2) The Administrator may retain jurisdiction over the permits for
which the administrative or judicial review process is not complete and
will address this issue in the notice of program approval.
    (3) After approval of a program for issuing minor NSR permits and
the suspension of issuance of minor NSR permits by the Administrator,
the Administrator will continue to administer minor NSR permits until
permits are issued under the approved Tribal implementation plan
program.
    (4) Permits previously issued under this program will remain in
effect and be enforceable as a practical matter until and unless the
Tribe issues new permits to these sources based on the provisions of
the EPA-approved Tribal implementation plan.

0
3. Add an undesignated center heading and Sec. Sec.  49.166 through
49.173 to subpart C to read as follows:

Federal Major New Source Review Program for Nonattainment Areas in
Indian Country

* * * * *
Sec.
49.166 Program overview.
49.167 Definitions.
49.168 Does this program apply to me?
49.169 Permit approval criteria.
49.170 Emission offset requirement exemption.
49.171 Public participation requirements.
49.172 Final permit issuance and administrative and judicial review.
49.173 Administration and delegation of the nonattainment major NSR
program in Indian country.
* * * * *

Sec.  49.166  Program overview.

    (a) What constitutes the Federal major new source review (NSR)
program for nonattainment areas in Indian country? As set forth in this
Federal Implementation Plan (FIP), the Federal major NSR program for
nonattainment areas in Indian country (or ``program'') consists of
Sec. Sec.  49.166 through 49.175.
    (b) What is the purpose of this program? This program has the
following purposes:
    (1) It establishes a preconstruction permitting program for new
major sources and major modifications at existing major sources located
in nonattainment areas in Indian country to meet the requirements of
part D of title I of the Act.
    (2) It requires that major sources subject to this program comply
with the provisions and requirements of part 51, Appendix S of this
chapter (Appendix S). Additionally, it sets forth the criteria and
procedures in Appendix S that the reviewing authority (as defined in
Sec.  49.167) will use to approve permits under this program. Note that
for the purposes of this program, the term SIP as used in Appendix S
means any EPA-approved implementation plan, including a Tribal
Implementation Plan (TIP). While some of the important provisions of
Appendix S are paraphrased in various paragraphs of this program to
highlight them, the provisions of Appendix S govern.
    (3) It also sets forth procedures for appealing a permit issued
under this program as provided in Sec.  49.172.
    (c) When and where does this program apply?
    (1) The provisions of this program apply to new major sources and
major modifications at existing major sources located in nonattainment
areas in Indian country where there is no EPA-approved nonattainment
major NSR program beginning on August 30, 2011. The provisions of this
program apply only to new sources and modifications

that are major for the regulated NSR pollutant(s) for which the area is
designated nonattainment.
    (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 plan includes provisions that comply with the requirements of part
D of title I of the Act and Sec.  51.165 of this chapter for the
construction of new major sources and major modifications at existing
major sources in nonattainment areas. Permits previously issued under
this program will remain in effect and be enforceable as a practical
matter until and unless the Tribe issues new permits to these sources
based on the provisions of the EPA-approved Tribal implementation plan.
    (d) What general provisions apply under this program? The following
general provisions apply to you as an owner/operator of a source:
    (1) If you propose to construct a new major source or a major
modification at an existing major source in a nonattainment area in
Indian country, you must obtain a major 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 do not construct or operate your source or modification
in accordance with the terms of your major NSR permit issued under this
program, you will be subject to appropriate enforcement action.
    (3) Issuance of a permit under this program 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
nonattainment major NSR permit program with different requirements in
an approved TIP as long as the TIP meets the requirements of part D of
title I of the Act.

Sec.  49.167  Definitions.

    For the purposes of this program, the definitions in part 51,
Appendix S, paragraph II.A of this chapter apply, unless otherwise
stated. The following definitions also apply to this program:
    Allowable emissions means ``allowable emissions'' as defined in
part 51, Appendix S, paragraph II.A.11 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.
    Enforceable as a practical matter means that an emission limitation
or other standard is both legally and practicably enforceable as
follows:
    (1) An emission limitation or other standard is legally enforceable
if the reviewing authority has the right to enforce it.
    (2) Practical enforceability for an emission limitation or for
other standards (design standards, equipment standards, work practices,
operational standards, pollution prevention techniques) in a permit for
a source is achieved if the permit's provisions specify:
    (i) A limitation or standard and the emissions units or activities
at the source subject to the limitation or standard;
    (ii) The time period for the limitation or standard (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, practical 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.
    Reviewing authority means the Administrator or an Indian Tribe in
cases where a Tribal agency is assisting EPA with administration of the
program through a delegation under Sec.  49.173.
    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 such 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 sources in Appendix S, but that has taken a
restriction such that its potential to emit is less than such amounts
for major sources. Such restrictions must be enforceable as a practical
matter.

Sec.  49.168  Does this program apply to me?

    (a) In a nonattainment area for a pollutant in Indian country, the
requirements of this program apply to you under either of the following
circumstances:
    (1) If you propose to construct a new major source (as defined in
part 51, Appendix S, paragraph II.A.4 of this chapter) of the
nonattainment pollutant.
    (2) If you propose to construct a major modification at your
existing major source (as defined in part 51, Appendix S, paragraph
II.A.5 of this chapter), where your source is a major source of the
nonattainment pollutant and the proposed modification is a major
modification for the nonattainment pollutant.
    (b) If you own or operate a major source with a state-issued
nonattainment major NSR permit, you must apply to convert such permit
to a Federal permit under this program by September 4, 2012.
    (c) If you propose to establish a synthetic minor source or
synthetic minor HAP source or to construct a minor modification at your
major source, you will have to comply with the requirements of the
Federal minor NSR program in Indian country at

Sec. Sec.  49.151 through 49.165 or other EPA-approved minor NSR
program, as applicable.

49.169  Permit approval criteria.

    (a) What are the general criteria for permit approval? The general
review criteria for permits are provided in part 51, Appendix S,
paragraph II.B of this chapter. In summary, that paragraph basically
requires the reviewing authority to ensure that the proposed new major
source or major modification would meet all applicable emission
requirements in the EPA-approved implementation plan or FIP, any
applicable new source performance standard in part 60 of this chapter
and any applicable national emission standards for hazardous air
pollutants in part 61 or part 63 of this chapter, before a permit can
be issued.
    (b) What are the program-specific criteria for permit approval? The
approval criteria or conditions for obtaining a major NSR permit for
major sources and major modifications locating in nonattainment areas
are given in part 51, Appendix S, paragraph IV.A of this chapter. In
summary, these are the following:
    (1) The lowest achievable emission rate (LAER) requirement for any
NSR pollutant subject to this program.
    (2) Certification that all existing major sources owned or operated
by you in the same state as the state including the Tribal land where
the proposed source or modification is locating are in compliance or
under a compliance schedule.
    (3) Emissions reductions (offsets) requirement for any source or
modification subject to this program.
    (4) A demonstration that the emission offsets will provide a net
air quality benefit in the affected area.
    (5) An analysis of alternative sites, sizes, production processes
and environmental control techniques for such proposed source that
demonstrates that the benefits of the proposed source significantly
outweigh the environmental and social costs imposed as a result of its
location, construction or modification.

Sec.  49.170  Emission offset requirement exemption.

    An Indian governing body may seek an exemption from the emission
offset requirement (see Sec.  49.169(b)(3)) for major sources and major
modifications subject to this program that are located within the
Tribe's Indian country pursuant to section 173(a)(1)(B) of the Act,
under which major sources and major modifications subject to this
program may be exempted from the offset requirement if they are located
in a zone targeted for economic development by the Administrator, in
consultation with the Department of Housing and Urban Development
(HUD). Under this Economic Development Zone (EDZ) approach, the
Administrator would waive the offset requirement for such sources and
modifications, provided that:
    (a) The new major source or major modification is located in a
geographical area which meets the criteria for an EDZ and the
Administrator has approved a request from a Tribe and declared the area
an EDZ and
    (b) The state/Tribe demonstrates that the new permitted emissions
are consistent with the achievement of reasonable further progress
pursuant to section 172(c)(4) of the Act and will not interfere with
attainment of the applicable NAAQS by the applicable attainment date.

Sec.  49.171  Public participation requirements.

    (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 (4)
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 your 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 you, including the LAER analysis
and, where applicable, the analysis of your emissions reductions
(offsets), your demonstration of a net air quality benefit in the
affected area and your analysis of alternative sites, sizes, production
processes and environmental control techniques.
    (4) 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 adjacent to 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 (e.g., subsistence hunting and fishing
or other seasonal cultural practices), 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) The regulated NSR pollutants to be emitted, the affected
emissions units and the emission limitations for each affected
emissions unit;
    (iv) The emissions change involved in the permit action;
    (v) Instructions for requesting a public hearing;
    (vi) The name, address and telephone number of a contact person in
the

reviewing authority's office from whom additional information may be
obtained;
    (vii) Locations and times of availability of the information
(listed in paragraph (a) of this section) for public inspection and
    (viii) 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.  49.172  Final permit issuance and administrative and judicial
review.

    (a) How will final action occur and when will my permit become
effective? After making a decision on a permit, the reviewing authority
must notify you of the decision, in writing and if the permit is
denied, provide the reasons for such denial and the procedures for
appeal. If the reviewing authority issues a final permit to you, it
must make a copy of the permit available at any location 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 service of notice of the final permit decision, 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 are the subject of the request for review must be stayed)
or
    (3) The draft permit was subjected to a public comment period and
no comments requested a change in the draft permit or a denial of the
permit, in which case the reviewing authority may make the permit
effective immediately upon issuance.
    (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) All comments received during any public comment period,
including any extension or reopening;
    (ii) The tape or transcript of any hearing(s) held;
    (iii) Any written material submitted at such a hearing;
    (iv) Any new materials placed in the record as a result of the
reviewing authority's evaluation of public comments;
    (v) Other documents in the supporting files for the permit that
were relied upon in the decision-making;
    (vi) The final permit;
    (vii) The application and any supporting data furnished by you, the
permit applicant;
    (viii) The draft permit or notice of intent to deny the application
or to terminate the permit and
    (ix) Other documents in the supporting files for the draft permit
that were relied upon in the decision-making.
    (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 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. An appeal directed to the Administrator,
rather than to the Board, will not be considered. 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 or 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
ascertainable during the public comment period on the draft permit. The
30-day period within which a person may request review under this
section begins with the service of notice of 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 being raised 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 were
not reasonably

ascertainable 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 will 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)-(3) or (4)
of this section, public notice must be given as provided in Sec.
49.171(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, you, 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 party.
    (6) The reviewing authority, at any time prior to the rendering of
the decision under paragraph (d)(5) of this section to grant or deny
review of a permit decision, may, upon notification to the Board and
any interested parties, withdraw the permit and prepare a new draft
permit addressing the portions so withdrawn. The new draft permit shall
proceed through the same process of public comment and opportunity for
a public hearing as would apply to any other draft permit subject to
this part.
    (7) A petition to the Board under paragraph (d)(2) of this section
is, under section 307(b) of the Act, a prerequisite to seeking judicial
review of the final agency action.
    (8) 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 will 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.
    (9) The reviewing authority shall promptly publish in the Federal
Register notice of any final agency action on a permit.
    (10) 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 not be considered, except in cases the Board has referred
to the Administrator pursuant to Sec.  49.172(d)(1) and in which the
Administrator has issued the final order. A motion for reconsideration
will not stay the effective date of the final order unless specifically
so ordered by the Board.
    (11) 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? The reviewing authority may reopen
an existing, currently-in-effect permit for cause on its own
initiative, such as if it contains a material mistake or fails to
assure compliance with applicable requirements. However, except for
those permit reopenings that do not increase the emissions limitations
in the permit, such as permit reopenings that correct typographical,
calculation and other errors, all other permit reopenings shall be
carried out after the opportunity of public notice and comment and in
accordance with one or more of the public participation requirements
under Sec.  49.171(b)(1)(ii).

Sec.  49.173  Administration and delegation of the nonattainment major
NSR program in Indian country.

    (a) Who administers a nonattainment major NSR program in Indian
country?
    (1) If the Administrator has approved a TIP that includes a major
NSR program for sources in nonattainment areas of Indian country that
meets the requirements of part D of title I of the Act and Sec.  51.165
of this chapter, the Tribe is the reviewing authority and will
administer the approved major NSR program under Tribal law.
    (2) If the Administrator has not approved an implementation plan,
the Administrator may delegate the authority to assist EPA with
administration of portions of this Federal nonattainment major NSR
program implemented under Federal authority to a Tribal agency upon
request, in accordance with the provisions of paragraph (b) of this
section. If the Tribal agency has been granted such delegation, it will
have the authority to assist EPA according to paragraph (b) of this
section and it will be the reviewing authority for purposes of the
provisions for which it has been granted delegation.
    (3) If the Administrator has not approved an implementation plan or
granted delegation to a Tribal agency, the Administrator is the
reviewing authority and will directly administer all aspects of this
Federal nonattainment major NSR program in Indian country under Federal
authority.
    (b) Delegation of administration of the Federal nonattainment major
NSR program to Tribes. This paragraph (b) establishes the process by
which the Administrator may delegate authority to a Tribal agency, with
or without signature authority, to assist EPA with administration of
portions of this Federal nonattainment major NSR program, in accordance
with the provisions in paragraphs (b)(1) through (8) of this section.
Any Federal requirements under this program that are administered by
the delegate Tribal agency will be subject to enforcement by EPA under
Federal law. This section provides for administrative delegation of the
Federal nonattainment major NSR program and does not affect the
eligibility criteria under Sec.  49.6 for treatment in the same manner
as a state.
    (1) Information to be included in the Administrative Delegation
Request. In order to be delegated authority to assist EPA with
administration of this FIP permit program for sources, the Tribal
agency must submit a request to the Administrator that:
    (i) Identifies the specific provisions for which delegation is
requested;

    (ii) Identifies the Indian Reservation or other areas of Indian
country for which delegation is requested;
    (iii) Includes a statement by the applicant's legal counsel (or
equivalent official) that includes the following information:
    (A) A statement that the applicant is a Tribe recognized by the
Secretary of the Interior;
    (B) A descriptive statement that is consistent with the type of
information described in Sec.  49.7(a)(2) demonstrating that the
applicant is currently carrying out substantial governmental duties and
powers over a defined area and
    (C) A description of the laws of the Tribe that provide adequate
authority to administer the Federal rules and provisions for which
delegation is requested and
    (iv) A demonstration that the Tribal agency has the technical
capability and adequate resources to administer the FIP provisions for
which the delegation is requested.
    (2) Delegation of Partial Administrative Authority Agreement. A
Delegation of Partial Administrative Authority Agreement (Agreement)
will set forth the terms and conditions of the delegation, will specify
the provisions that the delegate Tribal agency will be authorized to
implement on behalf of EPA and will be entered into by the
Administrator and the delegate Tribal agency. The Agreement will become
effective upon the date that both the Administrator and the delegate
Tribal agency have signed the Agreement or as otherwise stated in the
Agreement. Once the delegation becomes effective, the delegate Tribal
agency will be responsible, to the extent specified in the Agreement,
for assisting EPA with administration of the provisions of the Federal
nonattainment major NSR program that are subject to the Agreement.
    (3) Publication of notice of the Agreement. The Administrator will
publish a notice in the Federal Register informing the public of any
Agreement for a particular area of Indian country. The Administrator
also will publish the notice in a newspaper of general circulation in
the area affected by the delegation. In addition, the Administrator
will mail a copy of the notice to persons on a mailing list developed
by the Administrator consisting of those persons who have requested to
be placed on such a mailing list.
    (4) Revision or revocation of an Agreement. An Agreement may be
modified, amended or revoked, in part or in whole, by the Administrator
after consultation with the delegate Tribal agency.
    (5) Transmission of information to the Administrator. When
administration of a portion of the Federal nonattainment major NSR
program in Indian country that includes receipt of permit application
materials and preparation of draft permits has been delegated in
accordance with the provisions of this section, the delegate Tribal
agency must provide to the Administrator a copy of each permit
application (including any application for permit revision) and each
draft permit. You, the permit applicant, may be required by the
delegate Tribal agency to provide a copy of the permit application
directly to the Administrator. With the Administrator's consent, the
delegate Tribal agency may submit to the Administrator a permit
application summary form and any relevant portion of the permit
application, in place of the complete permit application. To the extent
practicable, the preceding information should be provided in electronic
format by the delegate Tribal agency or by you, the permit applicant,
as applicable and as requested by the Administrator. The delegate
Tribal agency must also submit to the Administrator such information as
the Administrator may reasonably require to ascertain whether the
delegate Tribal agency is implementing and administering the delegated
program in compliance with the requirements of the Act and of this
program.
    (6) Waiver of information transmission requirements. The
Administrator may waive the requirements of paragraph (b)(5) of this
section for any category of sources (including any class, type or size
within such category) by transmitting the waiver in writing to the
delegate Tribal agency.
    (7) Retention of records. Where a delegate Tribal agency prepares
draft or final permits or receives applications for permit revisions on
behalf of EPA, the records for each draft and final permit or
application for permit revision must be kept by the delegate Tribal
agency for a period not less than 5 years.
    (8) Delegation of signature authority. To receive delegation of
signature authority, the legal statement submitted by the Tribal agency
pursuant to paragraph (b)(1) of this section must certify that no
applicable provision of Tribal law requires that a major NSR permit be
issued after a certain time if the delegate Tribal agency has failed to
take action on the application (or includes any other similar provision
providing for default issuance of a permit).
    (c) Are there any non-delegable elements of the Federal
nonattainment major NSR program in Indian country? The following
authorities cannot be delegated outside of EPA:
    (1) The Administrator's authority to object to the issuance of a
major NSR permit.
    (2) The Administrator's authority to enforce permits issued
pursuant to this program.
    (d) How will EPA transition its authority to an approved
nonattainment major NSR program?
    (1) The Administrator will suspend the issuance of nonattainment
major NSR permits under this program promptly upon publication of
notice of approval of a TIP with a major NSR permit program for
nonattainment areas.
    (2) The Administrator may retain jurisdiction over the permits for
which the administrative or judicial review process is not complete and
will address this issue in the notice of program approval.
    (3) After approval of a program for issuing nonattainment major NSR
permits and the suspension of issuance of nonattainment major NSR
permits by the Administrator, the Administrator will continue to
administer nonattainment major NSR permits until permits are issued
under the approved Tribal implementation plan program.
    (4) Permits previously issued under this program will remain in
effect and be enforceable as a practical matter until and unless the
Tribe issues new permits to these sources based on the provisions of
the EPA-approved Tribal implementation plan.

PART 51--[AMENDED]

0
4. The authority citation for part 51 continues to read as follows:

    Authority:  23 U.S.C. 101; 42 U.S.C. 7401-7671q.

0
5. Appendix S to part 51 is amended by revising paragraph II.B and
adding condition 5 to paragraph IV.A to read as follows:

Appendix S to Part 51--Emission Offset Interpretative Ruling

* * * * *
    II. * * *
    B. Review of all sources for emission limitation compliance. The
reviewing authority must examine each proposed major new source and
proposed major modification \1\ to determine if such a source will
meet all applicable emission requirements in the SIP, any applicable
new source performance standard in part 60 or any national emission
standard for hazardous

air pollutants in part 61 or part 63 of this chapter. If the
reviewing authority determines that the proposed major new source
cannot meet the applicable emission requirements, the permit to
construct must be denied.
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    \1\ Hereafter the term source will be used to denote both any
source and any modification.
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    IV. * * *
    A. * * *
    Condition 5. The permit applicant shall conduct an analysis of
alternative sites, sizes, production processes and environmental
control techniques for such proposed source that demonstrates that
the benefits of the proposed source significantly outweigh the
environmental and social costs imposed as a result of its location,
construction or modification.
* * * * *
[FR Doc. 2011-14981 Filed 6-30-11; 8:45 am]
BILLING CODE 6560-50-P