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Citation: 56 Fed. Reg. 37654 1991 

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364 Federal egister V. 56, No. iSa Thurda! 'Ag8sVt' 8, 1991 f ius anAd egulations

request revision to any, SIP. Each

request for revision to the SIP shall' be

considered separately in light of specific

technical, economic, and environmental

factors and in relation to relevant

statutory and regulatory requirements.

J. Fmal Action, .

Today, EPA is approving the SIP

revision submittals of October 17, 1985,

January 29, 1986, November 7. 1986,

October 12, 1990, and October 15, 1990,

which include: (1) The I/M plan with an

anti-tampering regulation, and (2] the

carbon monoxide plan control strategy

and attainment demonstration.

Regulatory Process

Under 5 U.S.C. 605(b), I certify that

this SIP revision will not have a

significant economic impact on a

substantial number of small entities.

(See 46 FR 8709)

Under section 307(b)(1) of the Act,

petitions for judicial review of this

action must be filed in the United States

Court of Appeals for the appropriate

circuit by October 7, 1991. This action

may not be challenged later in

proceedings to enforce its requirements

(See section 307(b](2))..

The Office of Management and Budget

has exempted this rule from the

requirements of section 3 of Executive

Order 12291.

The Agency has reviewed this request

for revision of the federally approved

SIP for conformance with the provisions

of the 1990 Amendments enacted on

November 15, 1990. The Agency has

determined that this action conforms

with those requirements irrespective of

the fact that the adoption of the revision

by the State preceded the date of

enactment.

List of Subjects in 40 CFR Part 52

Air pollution control, Carbon

monoxide, Hydrocarbons, Incorporation

by reference, Intergovernmental

relations, Reporting and recordkeeping

requirements.

Authority: 42 U.S.C. 7401-7642.

Note: Incorporation by reference of the

State Implementation Plan for the State of

Oklahoma was approved by the Director of

the Federal Register on July 1. 1982.

Dated: June 28, 1991.

William K. Reilly,

Administrator.

40 CFR part 52, Subpart LL, is,

amended as follows:

$ubioat LL-Olclahoma

1. The Authority citation for part 52

continues to read as follows:

Authority: 42 U S C 7401-7642.

2. Section 52.1920 is amended by

adding paragraph (c)(40) to read as

follows:

§ 52.1920 Identiflcatlon of plan.

(c) * -

(40) On October 17, 1985, the

Governor of Oklahoma submitted a SIP

revision designed to achieve the carbon

monoxide standard in Oklahoma

County. Supplemental information was

submitted on January 29, 1986,

November 7, 1986, October 12, 1990,. and

October 15. 1990. The anti-tampering

regulation was submitted to EPA by the

Governor on October 8, 1985.

(i) Incorporation by reference.

(A) Oklahoma Official Motor Vehicle

Inspection Rules and Regulations

Manual adopted December 5, 1985, and

effective January 1, 1986.

(B) 47 O.S. SUPP. Section 856.1 et seq.

adopted May 24, 1984, and effective May

24, 1984.

(C] OP. Oklahoma Attorney General

number 84-174 (December 12,1984).

(D) October 17, 1985, plan reporting

commitments for Oklahoma County

Reasonable Further Progress schedule,

page 6.

(E) The City of Oklahoma City

Ordinance No. 12,575, as passed by the

Council of the City of Oklahoma City on

March 31, 1970, and approved by the

Mayor on March 31, 1970.

(ii) Additional material.

(A) A February 7, 1991, commitment

letter stating that the DPS will annually

conduct unannounced visits at 10

percent of the Oklahoma County

inspection stations.

(B] An October 12, 1990, letter

committing to report semiannually to

EPA, information relating to the

effectiveness and enforcement of the I/

M program.

[FR Doc. 91-18828 Filed 8-7-91;. 8:45 am]

BILUNG COOE -. 0-11,

40 CFR Part 81

[AD-FRL-3902-5J

Designations and Classifications for

Initial PM-10 Nonattainment Areas

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Notice correcting EPA's

announcement of the designations and

classifications for the initial PM;-I

(particulate matter nominally 10 microns.

or smaller in diameter) nonattainment

areas.

SUMMY On March15, .1991 (56 FR

11101), EPA announced the designations

and classifications of areas with respect

to the national ambient air quality

standards (NAAQS) for PM-10

occurring by operation of law upon

enactment of the 1990 Amendments to

the Clean Air Act (Act) (the "initial PM10 nonattainment areas").

Sections 107(d)(2) (referencing section

107(d)(4) designations) and 188(a' of the

Act specify that EPA must make these

announcements. In the March 1991

notice, EPA explained the operative.

legal provisions governing the

designation and classification of these

initial areas (see e.g., sections

107(d)(4)(B) (i), (ii), (iii), and 188(a) of the

Act).

. The EPA also provided an opportunity

for the public to comment on EPA's

announcement. As noted, this did not

stem from any legal obligation. Rather,

as a matter of policy, EPA requested

public comment on the announcement in

order to facilitate public participation

and avoid committing errors.. In today's

action, EPA has responded to pertinent

comments addressing the: March 1991

Federal Register notice. Where EPA

believed appropriate and where there

was a legal basis to do so, EPA has,

made adjustments to the initial PM-1O

nonattainment areas in light of the

comments. Finally, note that for

informational purposes, EPA has

restated some of the background

discussion provided in the March 1991

notice.

EFFECTIVE DATES: For those areas that

have remained unchanged, the effective

date of the announcement of the

designation and classification of the

areas is May 14, 1991, as indicated in the

March 15, 1991 Federal Register notice

(56 FR 11101.

For those areas where EPA has

adjusted or corrected the boundaries,,

the effective date of the announcement

of the designation and classification of

such areas is August 8, 1991. (see

discussion below.

FOR FURTHER INFORMATION CONTACT:

Larry D. Wallace, Particulate Matter

Programs Section, Air Quality

Management Division; (MD-15), Office of

Air Quality Planning and Standards,

U.S. Environmental Protection Agency,

Research Triangle Park, NC 27711. Mr.

Wallace's phone number is (919) 541-

0906 or FTS 629-0906.

SUPPLEMENTARY INFORUATION: The. air

quality monitoring data supporting the

nonattainment designation of the former

Group II and III areas monitoring

violations of the PM-10 NAAQS prior to

January 1' 1989 are available from, the

respective EPA Regional, Office which

serves the Statewhere the affected area

HeinOnline -- 56 Fed. Reg. 37654 1991
Federal Reolsier I Vol. 56. No. 153 / Thursday, August 8, 1991 1. Rules and Regulations 375

Is located. The addresces of the

Regional Offices are as follows:

" State Air Programs Branch, EPA

Region I, J.F.K. Federal Building,

Boston, MA 02203-2211.

" Air Programs Branch, EPA Region II,

23 Federal Plaza, New York, NY

10273.

* Air Programs Branch, EPA Region III,

841 Chestnut Building, Philadelphia,

PA 19107.

" Air Programs Branch, EPA Region IV,

345 Courtland Street, NE., Atlanta, GA

30365.

" Air and Radiation Branch, EPA

Region V. 230 South Dearborn Street,

Chicago, IL 60604.

" Air Prcgrams Branch, EPA Region VI,

1445 Ross Avenue, Dallas, TX 75202-

2733.

* Air Branch, EPA Region VII, 726

Minnesota Avenue, Kansas City, KS

66101.

" Air Programs Branch, EPA Region

VIII, 999 18th Street, Denver Placesuite 500, Denver, CO 80202-2405.

" Air Pivgrams Branch, EPA Region IX,

75 Hawthorne Street, San Francisco,

CA 94105.

* Air Programs Branch, EPA Region X,

1200 Sixth Avenue, Seattle, WA 98101.

1. Background

A. 1987 Revision of the NAA QS for

Particulate Matter

On July 1, 1987 EPA revised the

NAAQS for particulate matter, replacing

total suspended particulates (TSP) as

the indicator for particulate matter with

a new indicator that included only those

particles with an aerodynamic diameter

less then or equal to a nominal 10

micrometers (called "PM-10") (see 52 FR

24634). At the same time EPA set forth

regulations for implementing the revised

particulate matter standards and

announced EPA's State implementation

plan (SIP) development policy

elaborating PM-10 control strategies

necessary to assure attainment and

maintenance of the PM-10 NAAQS (see

generally 52 FR.24672). The EPA

adopted a PM-10 SIP development

policy dividing all areas of the country

into three categories based on their

probability of violating the new

NAAQS:

1. Areas with a strong likelihood of

violating the PM-10 NAAQS and

requiring'substantial SIP adjustment

were placed in Group I. - 2. Areas where attainment of the PM10 NAAQS was possible and existing

SIP's needed less adjustment were

placed in Group II.

3. Areas with a strong likelihood of

attaining PM-10 NAAQS and therefore

needing adjustment only to their

preconstruction review program and

monitoring network were placed in

Group III (see 52 FR 24672, 24679-24682).

B. Prior Listing of the Modification to

PM-I Group , I, and III Areas

In accordance with the standards,

policies, and regulations published on

July 1, 1987-for revising and

implementing the new particulate matter

standard, EPA identified and listed the

Group I and Group II areas in each State

in a notice published on August 7, 1987

(see 52 FR 29383). The 1987 notice also

indicated that any area of the country

not listed as Group I or II was placed in

Group Ill (see 52 FR 29383).

The EPA subsequently modified the

identification for three areas and

announced these revisions in a notice

published on March 28, 1989 (see 54 FR

12620). Specifically, the 1989 notice

indicated that Porter County, Indiana,

was changed from Group I to Group II;

Mono Basin, California, was changed

from Group III to Group II; and

Sandpoint, Idaho, was. changed from

Group I to Group II.

On October 31, 1990 EPA published

technical corrections modifying the

identification of the locations of concern

for some of the areas previously

identified as Group I and II areas (see 55

FR 45799). When EPA listed the initial

groupings for areas in the August 1987

notice, the Group I and II areas of

concern were generally described as

cities, towns, counties, or planning

areas. The EPA indicated at that time

that these descriptions were only the

initial definitions of the areas to be

-investigated in the SIP development

process and would be better defined

later. The modifications to the

identification of the Group I and II areas

announced in the October 1990 notice

specifically defined and delineated the

boundaries of the Group I and Group II

areas in question based on information

obtained in the SIP development process

and EPA guidelines and procedures for

determining particulate matter

boundaries. Generally, prior to

modifying the identification of

boundaries in the October 1990 notice,.

-EPA consulted with the affected States,

- reviewed technical information, and

* was guided by applicable EPA policy.

Weighing these various factors, EPA set

the boundaries it believed appropriate.

II. Today's Action

On March 15, 1991 (56 FR 11101), EPA

announced the designations and

classifications occurring for PM-10 by

operation of law upon enactment of the

Act (the "initial PM-10 nonattainment

areas").' Sections 107(d)(2)(A)

(referencing section 107(d)(4)

designations) and 188(a) of the Act

specify that EPA must make these

announcements. In the March 1991

notice, EPA explained the operative

legal provisions governing the

designation and classification of these

initial areas (see, e.g., sections

107(d)(4){B)(i), (ii), (iii), and188(a) of the

Act). The EPA also provided an

opportunity for the public to comment

on EPA's announcement. As noted, this

did not stem from any legal obligation.2

Rather, as a matter of policy, EPA

requested public comment on the

announcement in order to facilitate

public participation and avoid

committing errors. In today's action,

EPA has responded to pertinent

comments addressing the March 15, 1991

notice.8 The EPA has made adjustments

I In that notice EPA deferred codification of th'-

PM-10 designations and classifications until EPA

codifies the designations and classifications of

areas across the country with respect to the

NAAQS for other pollutants. This codification

should occur sometime within the next few months.

As discussed below, codification of the designation

of the initial PM-10 nonattainment areas will

represent the Ageny's final action on those

designations within the meaning of section 307(b) of

the Act. 42 U.S.C. 7607(b).

2 In the March 15. 1991 notice EPA noted (end has

reiterated in today's notice) that neither the

announcement of the Initial designations nor the

Initial classifications for PM-10 were subject to the

requirements for notice-and-comment rulemaking

under either the Administrative Procedure Act

(APA) (SU.S.C. 553-657) or section 307(d) of the Act

(see generally 66 FR 11103). Regarding designations;

section 107(d)(2) of the Act requires the .

Administrator to publish a notice announcing

designations occurring pursuant to section 107(d)(4),

but explicitly provides that such announcement is

not subject to APA notice-and-comment rulemaking

procedures. Thus, Congress has expressly exempted

from the notice-and-comment procedural

requirements of the APA the announcement of those

areas designated nonattainment for PM-10 by

operation of law under section 107(d)(4)(B).

Regarding classifications, section 188(a) of the Act

requires the Administrator to publish a notice

announcing the classifications of these areas.

Section 188(a) explicitly states that the provisions of

section 172(a)(1)(B) pertaining to lack of notice and

comment and judicial review shall apply when the

Administrator announces these classifications.

Section 172(a)(1)(8), in turn, expressly exempts the

classification announcement from the notice andcomment procedures set forth in 5 U.S.C. 553-557.

8 The EPA received many pertinent comments In

direct response to the notice. Howsever. EPA has

attempted also to respond to pertinent comments

received from affected States submitted in response

to another Agency action,'In January and February

of 1991. EPA Regional Administrators provided

letters to the Nation's Governors explaining some of

the specific State actions that were to be completed

in order to initiate implementation of title I of the

Act as recently amended by the 1990 Amendments

("RA Letters'-). Regarding PM-10, for example, EPA

informed the Governors of those areas designated

nonattainment for PM-1O by operation of law upon

enactmnt of the Act and explained some of the SIP

requirements applicable to such areas under the

Continued

Feder l Re ster / Vol. 56, No. 153 / Thursday, August 8, 1991 /. Rules. and Regulations

37655

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37656 Federal Register / Vol. 56, No. 153 / Thureday, 'August 8. 1991 / Rules: and Regulations ;

to the initial PM-10 nonattainment areas

in light of the comments, where EPA

believed appropriate and where there

was a legal basis to do so.

A. Legal Framework

Section 107(d)(4(B)(l) of the Act

clearly specifies those former Group I

areas that were designated

nonattainment at enactment. That

provision states that each former Group

I area identified. in 52 FR 29383 (August

7, 1987) or modified before enactment of

the Act (November 15, 1990) is

designated: nonattainment for PM-10. As

discussed previously, the Federal

Register notice published on October 31,

1990 (55 FR 45799) clarified or "modified" EPA's identification of the

Group I areas listed in the August 1987

notice. 4 Thus, as explicitly provided by

the statute, the Group I areas listed in

ihe October 1990 notice became

nonattainment for PM-10 by operation

of law upon enactment of the Act on

November 15, 1990. The EPA,, then,

announced that these. areas were among

the initial PM-10 nonattainment areas in

its March 15, 1991 Federal Register

notice. Because the Act explicitly

provided that the former Group I areas

identified in the October 1990 notice

became nonattainment for PM-10 by

operation of law at enactment, EPA

believes the law generally prohibits any

modification of these areas at this

juncture. The one exception is where,

before enactment., EPA committed error

in identifying and/or modifying a Group

I area as referenced in section

107(d)(4)(B)(i) of the Act.

There are a few circumstances where

there is evidence that EPA intended that

the boundary for a Group I area

identified and/or modified in its

October 31, 1990 Federal Register notice

(and reiterated in the March 1991

announcement of initial PM-10

nonattainment areas) be different and

through administrative oversight or

other error failed to so provide.5 In one

revised law. By these letters EPA also initiated the

process of redesignating additional areas as nonattainment for PM-10, pursuant to section

107(d)(3) of the Act. Section 107(d)i() expressly

provides an opportunity for State participation in

redesignatig additional PM-10 nonattainment

areas. Section 107(d(4)(B), the provision addressing

designation of the Initial PM-1O nonattainment areas (i.e. those occurring by operation of law upon

enactment), does not contemplate such a process.

Nevertheless, some Governors and State agency

officials submitted comments on the initial areas in

responding to EPA's suggested additional

nonattainment areas. The EPA has responded to

any such pertinent comments in this notice.

4 Pre-enactment modifications to the August 1987

notice were also made in the Federal Register notice

published on March 28, 1989. discussed, previously.

6 This error was brought to EPA's attention in

comments submitted in response to EPA's March 15,

Instance, for example, EPA mislabeled a

highway number. EPA has made

adjustments to the boundaries in such

circumstances. Faced with the choice of

designating erroneous nonattainment

areas or Interpreting section

107(d)(4)(B)(i) such that it includes the

areas identified before enactment in the

October 31, 1990 notice but corrected for

error, EPA believes the latter approach

the most reasonable.8 Moreover, EPA.

believes that in providing that the areas

identified and/or modified in the

October 31, 1990 notice would be

nonattainment areas by operation of

law upon enactment of the 1990

Amendments, Congress and the

President could not have intended to

ratify dysfunctional or evidently

erroneous boundaries not grounded in

fact. Note that these circumstances are

in contrast to the situation where

commenters requested modification of a

former Group I area because they

believe, as a technical or policy matter,

that all or part of the area should not be

designated nonattainment. EPA has not

adjusted former Group I areas where

there is a judgment dispute about the

proper scope of the area or its very

designation as nonattainment.7

The prior categorization as a Group I

or Ill area bears differently on an area's

nonattainment status, in comparison

with the Acts' treatment of former

Group I areas. Specifically, section

107(d)(4)(B)(ii) of the Act states that

"any area containing a site for which air

quality monitoring data show a violation

of the national ambient air quality

standards for PM-10 before January 1,

1989 (as determined under part 50,

appendix K, of title 40 of the Code of

Federal Regulations) is hereby

designated nonattainment for PM-10." 8

1991 announcement or in EPA's review of its

records in preparing responses to comments.

6 Further, section t10(k)(8) expressly authorizes

the Administrator to revise designations,

classifications, etc. where the Administrator

determines that such designations, classifications,

etc. were in error.

IIn cases where there are disputes regarding the

proper scope of the designation, if a State later

makes a persuasive demonstration (SIP equivalent)

that EPA's factual conclusions in identifying a

former Group I area were in error, the Agency will

consider whether it would be appropriate to correct

the error relying on the authority in section 110(k)(8)

of the Act.

6 Since EPA grouped all areas of the country as I.

I1, or III when it revised the PM-10 NAAQS (see

previous discussion) and because all former Group I

areas were designated nonattainment by operation

of law under section 107(d)(4)(B{(i). the reference to "any area" in section 107(d)(4){B)(ii) de facto

applies to all areas formerly grouped as II and Ill.

That all former Group I areas would be

designated nonattainment by operation of law upon

enactment of the Act, while former Group 1l/Ill

areas would have to measure a violation prior to

January 1. 1969 to be so designated. is grounded in

The language of section 107(d)f4)(B)(ii):

suggests that EPA has more discretion in

determining which of the former Group

II and III areas were designated

nonattainment by operation of law upon

enactment of the Act. For example, EPA

must exercise some judgment in

construing what is a violation within the

meaning of 40 CFR part 50, appendix K.

to the extent these regulations leave

discretion.

Further, section 107(d)(4)(B](ii) does

not define the boundaries of "any area"

measuring a pre-1989 violation. The Act

does, however, set forth a revised

definition of nonattainment area for

purposes of section 107(d) designations

generally. Specifically, section

107(d)(1)(A)(i) of the Act defines a

nonattainment area as "any area that

does not meet (or that contributes to

ambient air quality in a nearby area, that

does not meet) the national primary or

secondary ambient air quality standard

for the pollutant." Thus, coincident with

providing that certain former Group II

and III areas were designated

nonattainment by operation of law at

enactment, the Act provided a standard

to govern the scope of what that area

should be. This definition suggests that

EPA must apply its expertise and

knowledge to isolate as nonattainment

any area it believes violates the

standard or any area that significantly

contributes to such violation in a nearby

area. 9 Further, nonattainment area

definition is being applied to these areas

for the first time since under EPA's preenactment grouping scheme they were

not designated nonattainment. The EPA

therefore believes that, consistent with

this new standard, it has some

discretion to apply its technical

expertise and appropriately adjust the

boundaries of the former Group II or I11

areas for purposes of determining which

some logic and reason. As noted above, when EPA

placed areas of the country into Groups If1, or IIlI.

Group I areas were those with a strong likelihood of

violating the PM-10 standard.

In the context where the Agency has adjusted

the boundaries of a former Group 11 or II area

because it contributes to a violation in, a nearby

area, the Agency has construed thedefinition of

nonattainment area to require some material or

significant contribution to such a violation. The

Agency believes that something greater than a

molecular impact Is required. Further, EPA has

adjusted the boundaries of former Group U and 1l1 areas designated nonattainment in reliance on its

general technical expertise and has not conducted.

for example, rigorous modeling analysis. The

timefremes set forth in the statute do not

contemplate such detailed analysts. For example,

the law mandates that all of the areas designated.

nonattainment by operation of law upon enactment

of the Act must submit SIP revisions by November

15,IM. O Such tight deadlines do not afford time for

more sophisticated technical analysis..

HeinOnline -- 56 Fed. Reg. 37656 1991
Federal Register / Vol. 56, No. 153 / Thursday, August 8, 1991 / Rules and Regulations

areas were actually designated

nonattainment by operation of law.' 0

Where appropriate, EPA has exercise

both types of discretion in responding to

comments addressing former Group II

and III areas that were announced as initial PM-10 nonattainment areas in the

March 1991 notice. Specifically, EPA has

considered whether a violation within

the meaning of part 50, appendix K.

occurred and EPA has adjusted

nonattainment area boundaries for

those areas based on the standard set

forth in section 107(d}(1)(A)i). 1

'

B. Responses to Comments

1. Former Group I Areas

a. Hayden/Miami Planning Area,

Arizona. Comments were submitted on behalf of ASARCO, Incorporated

(ASARCO). addressing EPA's

designation of the Hayden/Miami

Planning Area in Arizona as an initial

PM-10 nonattainment area. ASARCO

acknowledged that as a former Group I area "the 'Hayden/Miami' Group I area identified in the notice published at 52

FR 29383 on August 7. 1987, must be

designated a nonattainment area *...

However, ASARCO stated that the

March 1991 notice "expands the

'boundaries of the Hayden/Miami

nonattainment area far beyond the

limits of the planning area used by the

state when developing its PM-1 SIP for

Hayden." ASARCO commented that

these boundaries are unsupported by

ambient monitoring data, information

the State of Arizona discovered in its

SIP development for the Group I area.

10 Former Group If areas, for example, present an

extreme case. clearly compelling EPA to exercise

discretion in this way. The August 1987 and October

1990 Federal Register notices stated that any area of

a State not listed as Group I or U is considered to be

Group M (sea 52 FR 29384 and 55 FR 45799). Where

EPA determined that such an area measured a violation of the PM-10 standard prior to January 1.

1989. it would be irrational for the Agency to

designate as nonattainment entire portions of States

far removed from and not significantly contributing

to the area monitoring the violation. Rather. EPA

must exercise some judgment. I In contrast, unless EPA has committed an

error, the statute's treatment of former Group I areas does not contemplate such adjustment. As

mentioned, the provision of the Act addressing the

nonattainment designation of former Group I areas is quite specific. Section 107(d](4][l)li) calls for the

nonattainment designation of "each area identified

in 52 FR 29383" or as.subsequently modified before

the date of enactment of the Act. Thus. the law

specifies "each area" that was designated

nonattainment. The EPA cannot rely on the Act's

definition of nonattainment to adjust these area. The EPA believes such adjustment would

contravene the general canon of statutory construction that when interpreting the Act, specific provisions control those that are more general. In

this case. EPA believes that Congress has specified that former Group I areas will be nonattainment

and EPA cannot rely on the general definition of

nonattainment area to adjust the boundaries of

these area.

EPA guidance documents, and the

language of the amended law.

Consequently, ASARCO requested that

the boundaries of the area be

substantially revised.

ASARCO has misinterpreted the legal

weight of the October 1990 notice. In its

August 1987 notice, EPA only generally

referenced the "Hayden/Miami area." In

the October 1990 notice, EPA modified

and clarified this, enumerating in detail.

portions of the Hayden/Miami planning

area deemed Group I. These

modifications, in turn, were adopted by

operation of law upon enactment of the

Act (see section 107(d)(4)(B)(i)).

ASARCO argues that EPA can

disregard the boundaries in the October

1990 notice because it "did not 'modif[y]'

the 'identification' of PM-10

nonattainment areas; rather, that notice

defined the boundaries of nonattainment

areas that had already been identified in

previous notices." This extreme reading

of section 107(d)(4(B)(i) has no basis in

reason. An area is identified by its

boundaries. Thus, when EPA modified

the boundary of a Group I area in its

October 1990 notice, it was modifying

the identification of the area as section

107(d)(4)(B)(i) expressly contemplates.

ASARCO also argues that the October

1990 notice is not within the intended

ambit of section 107(d)(4)(B)(i) because

the operative language appeared in the

legislative history before the publication

of the October notice. This argument

ignores the express and plain meaning

of the text of section 107(d){4)(B)(i)..That

provision states that any modification of

the August 1987 notice "before the date

of enactment of the Act" is effective. It

clearly does not state, for example, that

only modifications occurring before

legislation or legislative history was

introduced are effective, as the

commenter apparently believes it should

be read.

The EPA has no basis to disregard the

boundaries for this former Group I area

as modified in the October 1990 notice

and adopted by operation of law.

ASARCO argues, for example, that EPA

should adjust the boundaries because

they are inconsistent with the Group I

SIP develop for that area, monitoring

data, and EPA guidance documents.

That the State of Arizona was

developing a SIP focusing on certain

portions of this former Group I area

does not compel EPA either to agree

with the SIP's scope or to adjust the area

boundaries to comport with that scope.

In fact. EPA has taken no action on the

former Group I SIP for this area.

Generally, prior to modifying the

boundaries in the October 1990 notice.

EPA consulted with the affected States,

reviewed technical information, and

was guided by applicable EPA policy.

Weighing these various factors, EPA set

the boundaries it believed appropriate.

and on November 15, 1990 these

boundaries were adopted as the

nonattainment boundaries for the former

Group I area in question.

The Governor of Arizona also

submitted comments addressing the

Hayden/Miami PM-10 nonattainment

area. The Governor commented that the

State has submitted a SIP demonstrating

attainment in the Hayden area. He also

commented that since 1988, monitoring

in the vicinity of industrial sources at

Miami has not revealed any violations

of the PM-10 standards. The Governor

stated that the State of Arizona "will be

submitting a SIP revision to designate

only the area within T5S, R15E as

nonattainment." However, in an

attachment to the Governor's letter, he

provided a more detailed and

apparently inconsistent description of

portions of Hayden that the Governor

believed should be designated

nonattainment.

As indicated in response to

ASARCO's comments, there is no

evidence that EPA intended to provide

boundaries for the Hayden/Miami area

that are different from those identified

in the October 1990 notice and

announced in EPA's March 1991 notice

in reliance on the October notice.

Essentially, there is no evidence of EPA

error. Moreover, as explained in the

response to ASARCO's comments. EPA

is in no way obligated to set

nonattainment boundaries for former

Group I areas according to the scope of

the State's implementation plan for the

former Group I area. In fact, EPA has

taken no action on the former Group I

SIP for this area. In sum, the boundaries

for this initial PM-10 nonattainment

area will remain as set forth in the

March 15, 1991 Federal Register notice.

b. New Haven, Connecticut. The

Governor of Connecticut and the State

of Connecticut Department of

Environmental Protection (CDEP)

submitted comments requesting that the

boundaries for the New Haven

nonattainment area be modified to

include only that portion of the city east

of the Quinnipiac River. The CDEP

noted that CDEP staff had sought to

have the boundary revised in the

October 31, 1990 notice but that EPA

had informed them that "a municipality

was the smallest geographic area that

could be designated." The CDEP also

commented that CDEP staff were told by

EPA that the State would have another

opportunity to refine -the boundaries.

37657

37657

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The EPA regrets any

miscommunication between Connecticut

and EPA that may have occurred when

discussing the modification of Group I

areas for the October 1990 notice.

However, Connecticut has not submitted

any documentation indicating that EPA

committed an error in designating the

City of New Haven as an initial PM-10

nonattainment area, in reliance on the

October 1990 notice. There is no

evidence that EPA intended that the

boundaries for this area be different

from those set forth in the March notice

and through administrative oversight or

other error failed to so provide. Thus,

the City of New Haven is a PM-10

nonattainment area, as'described in the

March 1991 notice.

c. Pinehurst, Idaho. The Administrator

of the Idaho Division of Environmental

Quality (IDEQ), on behalf of the

Governor, requested that EPA

significantly adjust the City of Pinehurst

nonattainment area. Believing the

nonattainment problem in this area to

be a valley airshed problem, IDEQ

requested that EPA expand the

boundaries to include additional

townships along Silver Valley.

There is no documented evidence that

EPA committed an error when it

modified the boundary for this area in

its October 1990 notice or as reiterated

in its March 1991 notice announcing the

initial PM-10 nonattainment

designations. Thus, there is no basis to

alter the boundaries identified as the

"City of Pinehurst" and set forth in the

March 1991 notice.

Nevertheless, to the extent that the

boundaries described in the State's

correspondence are broader than those

initially designated nonattainment, EPA

is considering whether the State's

submittal should be treated as an

unsolicited redesignation request within

the meaning of section 107(d)(3)(D) of

the Act. Under that provision EPA must "approve or deny" a revised designation

"[w]ithin 18 months of receipt of a

complete State redesignation submittal

If EPA finds that the submittal is

complete and approves the submittal,

then the City of Pinehurst and any

revised nonattainment area surrounding

it in the Silver Valley will be subject to

somewhat different statutory deadlines

for SIP submittal, attainment

demonstration, etc. Compare, e.g.,

section 189(a)(2)(A) (first SIP for initial

nonattainment area due I year from

enactment) and section 189(a)(2)(B) (first

SIP for later redesignated nonattainment

area due 18 months from the

nonattainment designation). However,

EPA notes that nothing in the Act

prohibits the State from submitting a SIP

for the entire area they have identified

by November 15, 1991, the SIP submittal

deadline applicable to the portion of the

area initially designated nonattainment

and announced in the March 15, 1991

notice.

d. Pocatello, Idaho. The Administrator

of the IDEQ submitted information to

EPA indicating what portion of the

Pocatello area in Bannock and Power'

counties should be designated

nonattainment. In the October 1990 and

March 1991 notices, this area was listed

as "City of Pocatello." Both of those

notices identified Bannock and Power as

the 'affected counties. After reviewing

IDEQ's submittal, EPA realized that the

"City of Pocatello" sits only in Bannock

County. Thus, there is a disconnect or

gap between EPA's listing of the "City of

Pocatello" as the. nonattainment area for

both Bannock and Power Counties.

As evidenced by its listing of both

counties, EPA intended to include that

portion of the Pocatello area in both

Bannock and Power Counties in the

October 1990 notice. The EPA now

realizes that listing was in error. This

error, then, was adopted inadvertently

in EPA's March 1991 notice announcing

the initial nonattainment areas for PM10. The EPA corrects this error in

today's notice as explained in the "Legal

Framework" discussion above. The EPA

has clarified the boundary for this area

consistent with IDEQ's request and

EPA's original intent.

The Shoshone-Bannock Tribes also

submitted information addressing the

boundary for the Pocatello

nonattainment area. The Tribes

indicated that they agreed with the

clarification and expansion of the

Pocatello nonattainment area as

indicated in IDEQ's submittal. They also

requested that EPA include an

additional section which they said

would include a seasonally operated "open pit silica mine with a rock

crushing operation and attendant

storage piles * * *."

The EPA has corrected the error it

committed with respect to Pocatello as

described previously. However, EPA

does not believe that the additional

section identified by the Tribes was

among those intended to be included

with the initial Pocatello nonattainm'ent

area. Thus, at this time, EPA will not

adjust the boundaries for this area to

include this section. Nevertheless, if

after further study EPA concludes that

there is evidence that this area violates

the PM-IO standards or significantly

contributes to such a violation in a

nearby area, then EPA would initiate the

process to redesignate this area

nonattainment pursuant to section

107(d)(3)(A) of the Act.

e. Cook County, Illinois. The EPA

received no formal comments about the

portion of Cook County, Illinois,

designated nonattainment for PM-10.

However, in reviewing records

subsequent to the publication of the

March 1991 notice, EPA realized that a

-highway.number in the description of

this area had been inadvertently

mislabeled. This announcement corrects

that error in accordance with the legal

rationale described above

f. Presque Isle, Maine. The Maine

Department of Environmental Protection

(MDEP) and the City of Presque Isle

submitted comments addressing EPA's

designation of the City of Presque Isle as

an initial PM-la nonattainment area.

The City of Presque Isle commented that

Presque Isle was incorrectly placed in

Group I in August 1987, the notice first

announcing groupings after EPA revised

the NAAQS for PM-IO in July 1987.

Thus, the city requested that it be

removed from nonattainment status. The

MDEP also objected to the designation

of the city as nonattainment and,

alternatively, argued that the boundaries

of the nonattainment area should be

reduced to include a V mile radius in

the city's urban center. The MDEP

submitted a number of supporting

documents.

The designation of Presque Isle as

nonattainment and the scope of its

boundaries appears to be a judgment

dispute. In its October 1990 notice, EPA

modified the boundaries for this Group I

area as it believed appropriate. This

area and attendant boundaries then

became nonattainment for PM-10 by

operation of law upon enactment of the

Act. The EPA regrets any

miscommunication between EPA and

MDEP which may have occurred during

the development of the October notice.

Nevertheless, this is not a situation

where EPA intended that the boundaries

in the October 1990 notice be different

and, through an error, failed to so

provide. Thus, as announced in EPA's

March 1991 notice, the boundaries of the

Presque Isle PM-10 nonattainment area

will consist of the entire city (see

section 107(d)(4)(B)(i)).

g. Libby, Montana. The State of

Montana submitted information to EPA

in. conjunction with EPA's development

of the October 1990 notice. The EPA

reviewed this information and intended

to modify the boundaries for this area in

accordance with the State's submittal.

Through administrative oversight, this

modification was not reflected in the

October 1990 notice and, consequently

was not announced in the March 1991

notice. The EPA has corrected that error

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in today's notice in accordance with the

legal rationale described above.

h. Missoula County, Montana. The

Governor of Montana submitted

comments to EPA indicating that EPA

committed an error in modifying the

Group I area of concern for this county

in EPA's October 1990 notice. Through

administrative oversight EPA

inadvertently omitted sections of this

area that records indicate it intended to

include. This error then was reiterated

in EPA's March 1991 notice announcing

the initial nonattainment areas. The EPA

has corrected its error in accordance

with the legal rationale explained

above.

i. Butte, Montana. As was the case

with Libby, the State of Montana

submitted information to EPA in

conjunction with EPA's development of

the October 1990 notice and, after

deciding to include it in the notice, EPA

inadvertently omitted the information.

As with Libby, this error was reiterated

in the March 1991 notice announcing the

initial PM-10 nonattainment areas. The

17PA has remedied its administrative

oversight and corrected the boundaries

as originally intended in accordance

with the legal rationale described above.

In a February 27, 1991 letter to EPA,

the Governor of Montana submitted

additional information addressing

Libby's PM-10 boundaries. The

Governor indicated that Montana had

completed technical analyses since the

publication of the October 1990 notice

and submitted detailed boundaries. The

Governor indicated that the suggested

boundaries would expand the Butte

nonattainment area, as listed in the

October 1990 notice, far beyond the city

limits. Upon comparing the

nonattainment boundary submitted by

the Governor and the corrected

boundary in today's notice, EPA has

determined that the boundaries are

similar; however, the Governor's

suggested boundary for the area is

slightly broader. There is no evidence

that EPA intended to include the

additional area identified in the

Governor's letter when EPA modified

Group I areas in the October 1990 notice

(or announced the initial PM-10

nonattainment areas in the March 1991

notice, in reliance on the October 1990

notice) and through administrative error

failed to so provide. Thus, EPA will not

adjust the boundary for this area to

include the additional area identified in

the Governor's letter.

However, to the extent that the

boundary described in the Governor's

correspondence is broader than that

listed in today's notice, EPA will treat

the Governor's submittal as an

unsolicited request for redesignation

with the meaning of section 107(d)(3)(D)

of the Act. Under that provision, EPA

must approve or deny a revised

designation within 18 months of receipt

of a complete State redesignation

submittal.

If EPA finds that the submittal is

complete and approves the submittal,

then the additional area submitted by

the Governor for the Butte

nonattainment area will be subject to

somewhat different statutory deadlines

for SIP submittal, attainment

demonstrations, etc. Compare, e.g.,

section 189(a)(2)(A) (first SIP for initial

nonattainment area due I year from

enactment) and section 189(a)(2)(B) (first

SIP for later redesignated nonattainment

areas due 18 months from the

nonattainment designation). However.

EPA notes that nothing in the Act

prohibits the State from submitting a SIP

for the entire area they have identified

by November 15, 1991, the SIP submittal

deadline applicable to the portion of the

area initially designated nonattainment

and announced in today's notice.

j. Anthony, New Mexico (Dona Ana

County). The State of New Mexico

Environment Department (NMED)

submitted comments addressing the

nonattainment designation of the

Anthony, New Mexico, area. The NMED

stated that Anthony is a rural fugitive

dust area (RFDA) and under EPA's

"Rural Fugitive Dust Policy" (RFDP),

"RFDA sites shall not be designated

nonattainment." Further NMED stated

that EPA's RFDP remains in effect

because EPA indicated "in the October

29, 1990 Federal Register, the existing

RFDA policy shall remain in effect until

it is revised by EPA." Finally, NMED

requested that former RFDA's now

designated nonattainment have most of

their requirements waived if EPA

discontinues the RFDP.

Two 1977 EPA memoranda constitute

what has been called EPA's "Rural

Fugitive Dust Policy." These memoranda

set forth treatment of areas identified as

"Rural Fugitive Dust Areas" for the

purposes of attainment/nonattainment

status as well as SIP development and

new source review under the Act before

the 1990 Amendments (see, e.g., 52 FR

24716 (July 1, 1987) (historical

discussion)). This policy was issued

when TSP was the indicator for

particulate matter. When EPA revised

the particulate matter NAAQS in July

1987. changing the indicator to PM-10,

EPA proposed a number of alternative

policies. In that notice EPA indicated

that the existing, policy would remain in

effect until EPA adopted a final policy

(see 52 FR 24716 (July 1, 1987]).

Since then, the 1990 Amendments to

the Act were enacted. As discussed,

section 107(d)(4)(B)(i) of the Act

provides that all former Group I areas

were designated nonattainment by

operation of law upon enactment of the

Amendments. Further, EPA is unaware

of any error it may have committed

when it modified the boundary for the

Anthony area in its October 1990 notice.

Thus, on November 15, 1990 the

Anthony, New Mexico, area (as listed in

the October 1990 notice) became

nonattainment for PM-10 by operation

of law. The EPA announced this

designation in its March 1991 notice.

The EPA believes the waiver

provision alluded to in NMED's

comments provides a statutory

alternative to EPA's RFDP (see section

18(f) of the Act). The EPA intends to

provide guidance to the States on the

meaning of section 188(f) later this year.

In the meantime, areas designated

nonattainment for PM-10, including

former RFDA's, should proceed with SIP

development in accordance with the

new law.

The October 29, 1990 Federal Register

notice referenced by NMED was EPA's

semiannual Regulatory Agenda (see 55

FR 45134, 45198). This notice is

published for informational purposes

and has no regulatory effect. In addition.

the October publication preceded

enactment of the Act. Any confusion

created by the reference to the RFDA in

that notice should be cleared by today's

notice. Finally, EPA notes that former

RFDA's will receive the same treatment

that all other areas requesting a waiver

will receive. If EPA finds that an area

satisfied the operative legal standard

then, within the construction of the law,

EPA will waive those requirements it

believes appropriate.

k. Jefferson County, Ohio. Ohio EPA

(OEPA) submitted comments indicating

that EPA erred in setting the boundaries

for that portion of Jefferson County,

Ohio, that was designated

nonattainment at enactment. After

examining the documentation submitted

by OEPA, EPA agrees that an error was

committed. In both the October 1990 and

March 1991 notices, EPA identified a

boundary for this area that was

incomplete. It appears, for example, that

EPA failed to clearly delineate a

western boundary. The EPA has

corrected its error in accordance with

legal rationale described above.

1. El Paso, Texas. The Texas Air

Control board submitted comments on

this area noting that "on March 8, 1991,

the Texas Air Control Board (TACB)

passed a resolution * * * approving the

Texas Air Control Board Designation

Proposal, where the nonattainment area

for PM-10 in El Paso was changed tn the

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City of El Paso including Fort Bliss."

Apparently, TACB sought to clarify that

Fort Bliss, which is within the city limits

but not part of the municipal entity, was

included in the City of E1 Paso

nonattainment area. Generally, when

EPA lists municipal boundaries or other

boundaries identifying a perimeter, all, of

the area within those boundaries is part

of the nonattainment area unless

otherwise specified. More specifically,

Federal facilities are subject to the

requirements of the Act unless thay

have been expressly exempted from a

requirement because the President has

determined that it is in the "paramount

interest of the United States to do so"

(see section 118 of the amended Act).

The EPA is unaware of any such

exemption for Fort Bliss. Thus, as

indicated in EPA's March 1991 notice,

the City of El Paso, and any area within

its municipal boundaries, is an initial

PM-10 nonattainment area.

m. Wallula, Washington. The

Governor of Washington submitted

information to EPA requesting that the

Wallula nonattainment area be

expanded to include Kennewick,

Washington. The Governor's submittal

stated that these two areas should be

combined into one nonattainment area

because the Wallula nonattainment area

does not include all of the major sources

which contribute to the air quality

problem in the area. The Governor also

noted the close proximity of the

monitoring sites in the two areas.

The Wallula area, as described in the

October 1990 and March 1991 Federal

Register notices, was designated

nonattainment by operation of law upon

enactment. Further, there is no evidence

that in developing either-of these notices

EPA intended the boundary to be

different, but through an error failed to

so provide. Thus, the Wallula area is

currently a moderate PM-10

nonattainment area. As such, the State

of Washington must submit a SIP

revision for the area by November 15,

1991 containing the applicable statutory

requirements and demonstrating

attainment by December 31, 1994 (see

generally subpart 4 of part D of title I of

the Act).

The EPA agrees that Kennewick has a

PM-10 air quality problem and has

already initiated the process to

redesignate this area nonattainment (see

January 31, 1991 letter to the Governor

of Washington from the Regional

Administrator of EPA Region X; see also

56-FR 16274 (April 22, 1991)). However,

absent error, EPA cannot expand the

boundaries of the Wallula

nonattainment area to include

Kennewick. If Kennewick is designated

as an additional PM-10 nonattainment

area, it will be subject to statutory

deadlines for SIP submittal, attainment

demonstration, etc., which are different

from those of Wallula. However, EPA

notes that nothing prevents the State

from submitting a SIP for the entire

Wallula and Kennewick area by the

November 15, 1991 SIP submittal

deadline applicable to the initial PM-10

nonattainment areas and, consequently,

treating this as a single nonattainment

area. The opposite is not true. Under the

law, the State of Washington cannot

defer submittal of a SIP for Wallula until

a SIP for Kennewick is due, assuming

Kennewick is ultimately redesignated to

nonattainment.

n. Yakima, Washington. The EPA

received no formal comments about the

portion of Yakima, Washington,

designated nonattainment for PM-10.

However, in reviewing records

subsequent to the publication of the

March 1991 notice, EPA realized that a

set of coordinates were missing from the

boundary description for the area. This

announcement corrects that error in

accordance with the legal rationale

described above.

2. Former Group II and III Areas

a. Alo, Arizona. Comments were

submitted on behalf of the Phelps Dodge

Corporation' (Phelps Dodge) addressing

EPA's announcement of the Ajo

planning area as an initial PM-10

nonattainment area. Phelps Dodge

commented that air quality data do not

show "a violation of the national

ambient air quality standard for PM-10

before January 1, 1989 (as determined

under part 50, appendix K of title 40 of

the Code of Federal Regulations)"

because only one exceedance of the 24-

hour standard has been measured (see

section 107(d)(4)(B)(ii) of the Act).

Phelps Dodge commented that,

alternatively, the exceedance in

question should be treated as an

exceptional event.

The PM-10 standard is expressed in

terms of an expected value. Section 3.1

of 40 CFR part 50, appendix K, describes

the adjustments that must be made to

24-hour data in order to estimate the

number of expected exceedances when

PM-10 sampling is not conducted on a

daily basis. Section 3.1 states that "[i]n

this adjustment, the assumption is made

that the fraction of missing values that

would have exceeded the standard level

is identical to the fraction of measured

values above-this level." The regulations

recognize that this adjustment may lead

to overprediction. Thus, § 3.1 also states

as follows: "To reduce the potential for

overestimating the number of expected.

exceedances; the correction for missing

data will not be required for a calendar

quarter in which the first observed

exceedance has occurred if: (a) There

was only one exceedance in the

calendar quarter, (b) everyday sampling

is subsequently initiated and maintainpd

for 4 calendar quartets in accordance

with 40 CFR 58.13, and (c) data capture

of 75 percent is achieved during the

required period of everyday sampling."

Sampling is conducted once every.6

days at the Ajo Station monitoring site.

After the exceedance in question was

measured, daily sampling was not

commenced. Thus, the regulations

require correction for the missing data.

After applying the adjustment

referenced above, the expected

exceedances of the 24-hour standard at

Ajo constitute a violation of the PM-10

standard consistent with part 50,

appendix K.

Section 2.4 of part 50, appendix K,

governs the inquiry of whether the

exceedance measured at Ajo should be,,

treated as an "exceptional event." That

regulation states that an exceptional

event is "an uncontrollable event caused

by natural sources of particular matter

or an event that is not expected to recur

at a given location." Phelps Dodge

commented that "gusts in excess of 20

mph" were measured at the closest

meteorological station on the day the

exceedance was measured. The level of

the wind gusts was noted presumably to

illustrate the anomalous nature of the

event. However, Phelps Dodge

submitted no information indicating

whether that high wind was the cause of

the exceedance and, if so, whether the.

wind was likely to recur. In fact, Phelps

Dodge suggested that the wind gusts

were due to the area's seasonal

monsoon. Specifically, Phelps Dodge

stated that "[t]he conditions at Ajo were

characteristic of monsoon weather

patterns in southern Arizona." Further,

recent meteorological data collected

near Ajo by the ArizonaDepartment of.

Environmental Quality indicate that

hourly wind gusts greater than or equal

to 20 miles per hour occur at least 7 days

per year. The EPA, therefore, does not

believe the event is properly deemed

exceptional. Thus, as described in the

March 1991 notice, the Ajo planning

area is an initial PM-10 nonattainment

area.

Finally, the State of Arizona appears

to agree with the Ajo boundaries. In a

May 15, 1991 letter to'EPA, the Governor

of Arizona suggested boundaries for the

Ajo nonattainment area that were '

consistent with those set forth in EPA's

March 1991 announcement.

b. Bullhead City, Arizona. The

Arizona Center for Law in the Public

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interest (the Center) commented that

"EPA shoujd add the Bullhead City,

Arizona, planning area (Mohave

County) to the list of initial PM-10

nonattainment areas based on its

violation of the annual standard in 1989

and its exceedance of the 24-hour

standard in the same year."

Bulhead City was a former PM-10

Group Ill area. Section 107(d(4](B)(iij

governs the initial nonattainment

designaticns of former Group II and III

areas. That provision indicates that a

former Group U1 or III area car be

designated nonattainment by operation

of law upon enactment of the Act only if

"monitoring data show a violation of the

NAAQS for PM-10 before January 1,

19ag* * *." Violations of the standard

occurrin7,g in C33 would not qualify as a

v:-olation occurring before januia-y 1,

1939.

Ncte, however, that pursuartl to

section IG7(d)[3) of the Act, EPA has

initiated the process to redesignate' this

area as nonattainment for PM-10.- By

letter dated January 24, 1991, the

Regional Administrator of EPA Region

EX notified the Governor of Arizona that

arailable information indicates that

Eullhead City should be redesignated.-

norattainment for PM-10 and, on that

basis, called on the State to submit a redesignation for the area (see also 58

FR .6274 (April 22, 199111.

c. Fayson, Arizona. The Center

submitted comments claiming that

Payson, Arizona, should be designated

as an irdtial.PM-10 nonattainment area.- The Center stated that "Payson violated

the annual mean PM-10 standard in

1933 and 1989, and also recorded five

violations of the 24-hour standard in

1939 * * * "

Payson was a former Group Ill area. For the reasons noted in the Bullhead

City response, those violations occurring

on.or after January 1, 1989 cannot be a basis for designating Payson as an

initial PM-10 nonattainment area.'

Further, the 1988 data record for this area did not meet EPA's general data

capture requirements (i.e., was

incomplete ] and was not otherwise

suff.ciently unambiguous to establish

nonattainment (see J 2.3 of part 50,

appendix K). More specifically. § 2.3.

states that it is "generallynecessary" for: a monitoring site tohave data which

includes a mirimum of 75 percent of the

scheduled PM-1O samples per quarter in

order to assess whether a violation of

the standard has been recorded. With a

minimum sampling frequency of once in

6 days, a valid annual mean must be

based on' at least48 observations (12.,

observations per calendar quarter).

However. §.2.3 also statps that there are. "less stringent data requirements for

showing that a monitor has failed an

attainment test and thus has recorded a

violation of.the particulate matter

standard." Section 2.3 sets out examples

of how nonattainment may be

demonstrated when a monitoring site

does not meet the completeness criteria.

With respect to the annual standard,

§ 2.3 provides, for example, that

norattainment.may be demonstrated "on the basis.of quarterly mean

concentrations developed from observed

data combined With one-half the

minimum detectable concentration

substituted for missing values."

Applying this analysis to the data

collected in 1988 at the Payson

monitoring station, EPA concluded that

Payson should not be an Initial PM-10

nonattainment area. First, according to

the State of Arizona data report, a total

of 19 PM-1O samples were produced in

1938 by the Payson monitor. This clearly

fails the completeness requirement. If,

then, one-half the minimum detectable

concentration of (4.0 micrograms per

cubic meter ()Ag/mq}) is substituted for

the missing values (say, 29, i.e..

29+19=48), then the resulting annual

mean would be approximately 32 pg/m

which is below the annual PM-10

standard.

However, similar to the Bullhead City

situation, pursuant to section 107(d)(3)

of the Act, EPA has initiated the process

to redesignate this area as

nonattainment for PM-1o. By letter

dated January 24, 1991, the Regional

*Administrator of EPA Region IX.notified

the Governor of Arizona that available

information indicates that Payson

should be redesignated nonattainment

for PM-10, and on that basis called on

the State to submit a redesignation for

the area (see'also 56 FR 16274 (April 22,

1991)).

d. Tucson, Arizona. The Arizona

Center for Lqw. in the Public Interest

also commented that Tucson should be

an initial PM-D nonattainment area.

The Center's request was based on

monitoring data from three different

sites in the Tucson area.

First, the Center stated that the

Orange Grove Road sampling station

monitored one 24-hour exceedance in

1985 and two to 1988. Since-the 1985

exceedancewas produced prior to the

promulgation of the PM-to NAAQS (see

generally 52 FR 24034, July 1, 1987). EPA

did not adjust it for incompleteness of

sampling and counted it as 1.0 in the

calculation of the average number of

estimated'exceedances. 2 The analysis

Generally when sampling Is not conducted on a daily basis. EPA adjusts exceedances'of the 24-hour

-standard- in order to estimate the number of

expected exceedances (see 1 3.1 of 40 CFR pait 50

specified in § 3.2 of part 50, appendix K,

was then applied to the two

exceedances observed in 1988. 13 On this

basis, EPA calculated 3.1 exceedances

for 1988. Section 2.1 specifies that the

number of exceedances is determined

by averaging the number of exceedances

over the past 3 calendar years.

Therefore, the number of expected

exceedances for the 3-year period from

1986--88 is 1.033. After the rounding

called for in § 2.1, 1.033 would be less

than or equal to 1.0 which does not

constitute a violation of the standard.

Assuming for purposes of illustration

that the 4-year period from 1985-83 is

representative, then, consistent with

§ 2.3, the 1985 exceedance may be

considered. In this situation, the

appendix K). Section 3.1 states that "(ijn this

adjustment, the assumption is made that the

fraction of missing values that would have

exceeded the standard level is identical to the

fraction of measured values above this level."

However. some monitoring of PM-10 occurred

prior to the promulgation of part 50. appendix K.

This is true of the 24-hour exceedance measured in

1985 at the Orange Grove Road sampling site in

Tucson. Part 50, appendix K, was published on July

1. 1987 (effective date of July 31, 1937] when EPA

revised theindicator for particulate matter to PM-10

(see generally 52 Fft 24634). When it revised the

PM-10 standards and promulgated appendix K, EPA

did not designate areas and, therefore, could not

have: Intended to subject pre-promulgation data to

adjustment due to less than daily sampling for the

purpose of designating an area nonattainment.

Further, because those collecting data before the

rule's promulgation had no notice of the

consequences of less-than-every-day sampling, it

would be unfair to adjust data collected prepromulgation at this, time. Thus, EPA interprets appehdix K such that data collected prior to'the

rule's promulgation and used for establishing an area's designation is not construed as constituting

"incomplete data" within the meaning of appendix

K for the narrow purpose of adiusting data for less

than daily sampling.

The manner in which the Agency has

implemented part 50, appendix K. provides evidence

of the Agency's general concern with the unfairness

of subjecting pre-promulgation data to adjustment

for incompleteness, even before the newly revised

Act provided designation for PM-1O. In a June 1988

policy document. EPA noted that if the first

exceedance in an area occurred prior to the

.promulgation of the PM-10 standard, It would be

exempt from the daily sampling requirement (see

generally Response to Questions Regardirg PM-10

State lmplementatibn Plan (SIP] Development at

page 27). Finally., there is no evidence in the newly,

revised Act that Congress intended EPA to apply.

appendix K In a manner different from how the

Agency had applied l'prior to enactment.

L The caioputations for estimating exceedances

to adjust for missing data are performed quarterly.

There are special'appendix K formulas to address

the situation With unscheduled samples In order to

reduce.a blas which may be introduced by nonuniform aazitpliingdring the quarter. During'the third'quarter of 1988 when the two'exeedances

occurred, there was a change in sampling frequency from every-other-day to every-day. Accordingly, for

the purposes of estimating exceedances, the sample

schedule was assuim'ed to be every-other-day for the

entire quarter and. for computational pdrposes., somd of theaovety-day samples are treated as unscheduled.

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3'662 Fedea Re~idtb) tu '~ Au s8.' 911/ gules and Regulabtions

expected number of exceedances would

be 4.1 over a 4-year period which is -

1.025. After the rounding called for In

§ 2.1. this would be less than or equal to

1.0 and would not constitute a violation

of the standard.

The Center commented that elevated

levels of PM-10 were monitored at the

Congress Street station. Specifically, the

Center states that the annual standard

was violated in 1989 and that three

exceedances were monitored in 1989.

Tucson was a former Group II area. As

noted, under section 107(d)(4)(B)(ii) a

former Group 1I area can be designated

nonattainment by operation of law upon

enactment of the Act only if "monitoring

data show a violation of the national

ambient air quality standard for PM-10

before January 1, 1989 * * *." Because

the violations cited by the Center

occurred on or after this date, they. would not constitute a basis for

designating Tucson as an initial PM-10

nonattainment area.

The Center also commented that the

monitor located at Prince Road

monitored a violation of the 1989 annual

standard. Again, EPA notes that a

violation must be monitored prior to

January 1, 1989 to constitute a basis for

designating Tucson as an initial PM-10

nonattainment area.

Correcting EPA's announcement of the

initial PM-10 nonattainment areas is the

narrow question addressed by the

Agency in today's action. Nevertheless,

the Center has alerted EPA to possible

attainment problems in the Tucson area

which may be a basis for redesignating

this area as nonattainment pursuant to

section i07(d)(3) of the Act. The EPA

will review the PM-10 data collected in

Tucson on or after January 1, 1989 and

expects that it will reach a conclusion

about Tucson's status (and whether to

initiate the section 107(d)(3)

redesignation process) sometime this

Fall.

e. Bonner County, Idaho. The

Administrator of the IDEQ submitted

comments addressing the Banner

County nonattainment area. The EPA

announced that "Bonner County" was

an initial nonattainment area in the

March 1991 notice. The IDEQ submitted

a more detailed description, isolating

that portion of Banner County believed

to warrant nonattainment designation.

Consistent with the definition of

nonattainment area in section

107(d)(1)(A)(i) of the Act, in today's

notice EPA has refined the boundaries

for this area as requested by IDEQ.

f Oglesby, Illinois. The Governor of

Illinois submitted information to EPA

requesting that an additional section be

added to that portion of Oglesby

designated nonattainment for PM-10.

Consistent with the definition of

nonattainment area in section

107(d)(1](A(i), EPA has added the

section and announces that the Oglesby

PM-10 nonattainment area is as

described in Table I.

In January 28, 1991 correspondence to

the Governor of Illinois, the Regional

Administrator of EPA Region V had

initiated the process to redesignate as

nonattainment this portion of LaSalle

County. That process has been mooted

by the action announced in today's

notice. *

g. Clinton Township, Indiana. The

Indiana Department of Environmental

Management (IDEM) requested that the

boundaries for the Clinton Township

nonattainment area be reduced to

include eight sections in the Township

and submitted technical information

supporting their request. The EPA has

reviewed the information submitted by

IDEM and agrees that the area should be

modified to include only the eight

sections identified. The IDEM's

information shows that violations of the

standard are attributable to a coal mine

in the area, The EPA believes that

limiting the boundaries to the eight

sections suggested by IDEM does not

exclude any significant sources or any

likely nonattainment portions of this

area. Thus, EPA is refining the

boundaries of that portion of Clinton

Township that is designated as

nonattainment for PM-10 to include

these eight sections, consistent with the

definition of nonattainment area in

section 107(d(1)(A)(i) of the Act.

h. Rochester, Minnesota. The

Minnesota Pollution Control Agency

(MPCA) commented on the City of

Rochester's nonattainment status. The

MPCA requested that the boundaries for

the nonattainment area not include the

entire city. They submitted information

supporting this request including

documents indicating that EPA had

intended to include the modified

boundaries in its March 1991 notice but

through administrative oversight failed

to do so.

The EPA believes that the

nonattainment area should be less than

the entire city, and EPA intended to

provide more refined boundaries in its

March 1991 notice. Violations in

Rochester have been attributed to coal

storage at a power plant. This facility is

the only significant source in the city.

The EPA's refined nonattainment area

includes the source and all the area EPA

believes to be monitoring violations of

the NAAQS due to the source. Thus,

consistent with the definition of

nonattainment area in section

107(d(1)(A)(i) of the Act. EPA has

refined the nonattainment area.

Rochester Public Utilities (RPU) also

submitted comments addressing this

area. The RPU requested that EPA

reconsider Rochester's nonattainment

designation. The RPU commented that

no violation of the NAAQS has occurred

in the area. Specifically, RPU asserted

that there has been no violation of the

NAAQS because only one exceedance

of the standard has been measured and

there have never been two exceedances

during any 1 year. Further, RPU

commented that the event causing the

exceedance was an "exceptional

meteorological event" and should not

trigger-a nonattainment designation. The

RPU also commented that the sampler

malfunctioned and did not reliably

measure PM-10 on the day the

exceedance occurred.

The PM-10 NAAQS is expressed in

terms of an expected value. Section 3.1

of 40 CFR part 50, appendix K, describes

the adjustments that must be made to

24-hour data in order to estimate the

number of expected exceedances when

PM-10 sampling is not conducted on a

daily basis. Section 3.1 states that "[i]n

this adjustment, the assumption is made

that the fraction of missing values that

would have exceeded the standard level

is identical to the fraction of measured

values above this level." The regulations

recognize that this adjustment may lead

to overprediction. Thus, § 3.1 also states

as follows: "To reduce the potential for

overestimating the number of expected

exceedances, the correction for missing

data will not be required for a calendar

quarter in which the first observed

exceedance has occurred if: (a) There

was only one exceedance in the

calendar quarter, (b) everyday sampling

is subsequently initiated and maintained

for 4 calendar quarters in accordance

with 40 CFR 58.13, and (c) data capture

of 75 percent is achieved during the '

required period of everyday sampling."

Sampling is conducted once every B

days at the site where the exceedance in

Rochester was measured. Daily

sampling was not commenced after the

exceedance. Thus, the regulations'

require a correction for the missing data.

After applying the adjustment

referenced above, the expected

exceedances of the 24-hour NAAQS at

Rochester constitutes a violation of the

PM-10 NAAQS consistent with part 50,

appendix K.

Section 2.4 of pait 50, appendix K,

governs the inquiry of whether the

exceedance measured at the Rochester

monitoring site should be treated as an

"exceptional event." That regulation

states that an exceptional event is "an

uncontrollable event caused by natural

sources of particulate matter or an event

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that is not expected to recur at a given

location." The RPU commented that

extremely high winds occurred on the

day the exceedance was measured. The

RPU cited a memorandum by MPCA

requesting that EPA treat the

exceedance as an exceptional event and

noting that the Rochester National

Weather Service Office measured wind

speeds in excess of 40 miles per hour on

the day the exceedance was measured.

As noted, EPA believes that coal

storage at a power plant is responsible

for the exceedance. Thus, the event in

question would not qualify for treatment

as an exceptional event under the first

prong of the exceptional events

standard since it is controllable and was

not caused by natural sources. Further,

EPA has no basis to believe the event

wduld meet the second prong of the

operative legal standard. While high

winds were cited, no information was

submitted indicating whether that high

xind waa the cause of the exceedance

and, if so, whether the wind was likely

to r3ct..

The EPA also believes there is

insufficient technical basis to cast doubt

upon the reliability of the measurement.

The RPU noted that it had been

informed by MPCA that the sampler

was encumbered with large particles

and possibly a dirty sampler head "such

that quantification of PM-10 could not

be actrately and reliably measured

* * *." Previously, MPCA had

submitted to EPA a microscopist's

analysis of the filter sample. The

analysis concluded that large particles.

were collected which should not have

been measured and suggested that the

sample point be invalidated. The EPA

found the microscopist's analysis

technically deficient since it did not

document the quantity of large particles

collected and encumbering the sampler.

Thus, EPA will not disregard the data,

due to the inadequately substantiated

claim that the sampler malfunctioned.

In sum, EPA has adjusted the

boundaries for this area in light of

MPCA's comments and consistent with

the definition of nonattainment area

under section 107(d)(1)(A)(i) of the Act.

However, for all of the reasons

explained above, EPA denies RPU's

request to totally eliminate this area's

nonattainment designation.

i. Audrain County, Missouri. The

Missouri Department of Natural ' ,

Resources (MDNR) submitted comments

addressing EPA's designation of

Audrain County, Missouri, as an initial

PM-10 nonattainment area. The EPA

identified Audrain County as an initial

nonattainment area because of an

exceedance of the PM-10 24-hour

standard occurring on August 1, 1987.

The MDNR submitted information

suggesting that these data were invalid.

After reviewing the technical

information associated with this

measured exceedance, EPA has

concluded that the PM-10 sampler

malfunctioned on August 1, 1987 and

operated for a period exceeding 24

hours. Section 1.0 of part 50, appendix K,

specifies that a "daily value" is a "24-

hour average concentration of PM-10

calculated or measured from midnight to

midnight * a." The EPA has

invalidated the exceedance since EPA

believes the sampler ran for longer than

24 hours and was not measured-from

midnight to midnight. By today's notice

EPA removes Audrain from the list of

initial PM-10 nonattainment areas

because EPA believes Audrain County

has not measured a "violation" of the

PM-10 NAAQS within the meaning of

part 50, appendix K.

I. Columbia Falls, Montana (Flathead

County). The Governor of Montana

requested that EPA expand, by adding

one section. the Columbia Falls

nonattainment area. In light of the

Governor's comments and consistent

-with the definition of nonattainment

area set forth in section 107(d)(1)(A)(i) of

the Act, EPA has adjusted the

- boundaries set forth in the March 1991

notice.

k. Lubbock, Texas. The TACB as well

as the City of Lubbock submitted

comments on the March 15, 1991 Federal

Register notice providing an analysis of

the Lubbock PM-10 air quality data

collected over a 4-year period from

1986-1989. The TACB commented that

they had performed an analysis of all

PM-10 filters showing an exceedance of

the NAAQS. These analyses included an

interpretation and evaluation of soil

samples and particulate matter collected

on the filters, The results of the analysis - of the filter and soil samples indicated

that there was a distinct difference

between the.particulate matter

deposited on the filters from routine

monitoring days and those from the

days of high gusty winds and blowing

dust. The three exceedances of the PM10 24-hour standard at the Lubbock

monitoring sites since 1986 were

determined by the TACB to be

influenced by wind-blown dust

transported from out of State sources.

As a result, the TACB and the City of

Lubbock contend that the days on which

exceedances were measured were days

with unusually high wind gusts and, as

such, these days should be considered

as exceptional events and excluded

from the records in accordance with

EPA's exceptional events policy under

40 CFR part 50, appendix K, § 2.4. They

also contend that if the days with the

high winds were excluded as

exceptional events, the highest 24-hour.

concentration recorded at the Lubbock

monitoring sites Would be 126 g/m 3,

which Is below the national standard of

150 ig/m3..

The EPA has reviewed all data

submitted by the TACB and the City of

Lubbock in making its decision on the

attainment status of the Lubbock area.

Section 2.4 of part 50, appendix K,

indicates that certain exceedances of

the PM-10 NAAQS can be adjusted to

take exceptional events and trends into

account. The data available indicate

that Lubbock has monitored a limited

number of PM-10 levels in excess of the

24-hour PM-0 standard. Further, the

influence of long-range transport of

wind-blown dust on these measured

exceedances makes it difficult to

determine the associated frequency and

nature of these exceedances. This

results in uncertainty in how to treat

these exceedance events. -Because of

this uncertainty, EPA feels that an

unclassified status is appropriate for

Lubbock while additional information is

collected.

HI..Table Describing the Initial Moderate

PM-b0 Nonattainment Areas Corrected

by Today's Notice

Based on the foregoing discussion,

EPA today is changing its March 15,

1991 (56 FR.11101) announcement of the

initial PM-10,nonattalnment areas. The

nonattainment desigrations for those

areas-corrected by today's notice are set

forth in the following table. Consistent

with EPA's announcement In the March

1991 notice, -all of these areas were

.classified as "moderate" PM-10

nonattainment areas by operation of

law, pursuant to section 188(a) of the

Act. "

IIII - '- utl

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TABLE I.-PM-1 0 INITIAL NONATTAINMENT AREAS1 4,1 316,1 5 

State and counties

Idaho:

Bannock and Power .............

Bonner County .___.....

llli'.ols: Cook ..................... ....

LaSalle ................ ..............

Indiana:

Vermillion ... ................

Minnesota:

Olmsted ................ ............

Montana:

Flathead . ...................

Lincoln.. .........

Missoula .............................

Silver Bow.

Ohio:Jefferson .............

Washington:

Yakima . ................

Area of concern

The City of Pocatello: Sections 13-36 of range 33 east and township 5 south; Sections 15-23 and 25-36 of range 34 east and

township 5 south; Section 31 of range 35 east and township 5 south; Sections 1-36 of range 33 east and township 6 south;

Sections 1-36 of range 34 east and township 6 south: Sections 5-36 of range 35 east and township 6 south: Sections 7, 8, 15-

22, and 27-35 of range 36 east and township 6 south; Sections 4-6 of range 33 east and township 7 south; Sections 1-4. 10-14.

and 24 of range 34 east and township 7 south; Sections 1-30, and 32-36 of range 35 east and township 7 south;r Sections 2-11,

14-23, and 26-35 of range 36 east and township 7 south, Sections 1-4 of range 35 east and township 8 south; Sections 3-6 of

range 36 east and township 8 south.

The Sandpoint area: Sections 1-3, 9-12, 15, 16, 21, 22 27, 28 of range 2 west and township 57 north; and the western %,, of

Sections 14, 23, and 26 of the same township. and range coordinates.

a. Lyons Township.

b. The area bounded on the north by 79th Street, on the west by Interstate 57 between Sibley Boulevard and Interstate 94 and by

Interstate 94 between Interstate 57 and 79th Street, on the south by Sibley Boulevard, and on the east by the Illinos/Indiana

State line.

Oglesby Including the following Townships, ranges, and sections: T32N, RIE, 1; T32N, R2E, S6; T33N RIE, S24; T33N, RIE,

S25; T33N, R2E, S31; T33N. RiE, S36; and T33N, R2E, S30.

Part of Clinton Township including the following sections- Sections 15, 16, 21, 22, 27, 28, 33 and 34.

The area bounded on the south by U.S. Highway 14; on the west by U.S. Highway 52; on the north by 14th Street NW. between

U.S. Highway 52 and U.S. Route 63 (Broadway Avenue), U.S. Route 63 north to Northern Heights Drive, NE., and Northern

Heights Drive NE. extended east to the 1990 City of Rochester Omits; and on the east by the 1990 City of Rochester limits.

The area bounded by lines from Universal Transmercator (UTM) coordinate 700000mE, 534700mN, east to 704000mE, 5347000mN,

south to 704000mE, 5341000mN, west to 703000mE, 5341000mN, south to 703000mE, 5340000mN, west to 702000mE,

5340000mN, south to 702000mE, 5339000mN, east to 703000mE, 5339000mN, south to 703000mE, 5338000mN, east to

704000mE, 5338000mN, south to 704000mE, 5336000mN, west to 702000mE, 5336000mN, south to 702000mE, 5335000mN,

west to 700000mE, 5335000mN, north to 700000mE, 5340000mN, west to 695000mE, 5340000mN, north to 695000mE,

5345000mN, east to 700000mE, 5345000mN, north to 700000mE, 5347000mN.

Columbia Falls and vicinity: Township T30N, R20W--Sections 7, 8, 9, 16, 17, and 18.

Libby and vicinity: T30N, R31W-Sections 2, 3, 4, 5, 9, 10, 11, 14, 15, 23, 26, 35, and west of Section 24, west of Section 25,

and west of Section 36; plus T31N, R31W--Sections 26, 27, 29, the east of Sections 30. 32, 33, 34, and 35.

Missoula and vicinity Including the following sections: T13N, R19W-Sections 2, 8, 11, 14, 15, 16, 17,. 19, 20, 21, 22. 23, 24, 27, 28.

29, 30, 31, 32, 33, and 34; T12N, R19W-Sections 4, 5, 6, 7; T13N. R20W-Sections 23, 24, 25, 26. 35, and 36.

Butte: The Northwest comer of section 2, T.3N., R.8W., thence Easterly to Northeast comer Section 5, T.3N R.7W.; thence

Southerly to Northwest comer Section 9, T.3N., R.7W; thence Easterly to Northeast corner Section 10, T.3N, R.7W.; thence

Southerly to Southeast comer Section 22, T.2N., R.7W.; thence Westerly to Southwest comer Section 19, T.2N., R.7W.; thence

Northerly to Northwest comer Section 19, T.2N., R.7W.; thence Westerly to Southwest corner Section 14, T.2N., R.AW.; thence

Northerly to Southwest comer Section 35, T.3N., R.8W.; thence Westerly to Southwest comer Section 34, T.3N., R.8W.; thence

Northerly to Northwest corner Section 27, T.3N., R.AW.; thence Westerly to Southwest corner Section 20, T.3N., R.AW.; thence

Northerly to Northwest comer Section 17, T.3N., R.8W.; thence Easterly to Northwest comer Section 14, T.3N., R.8W.: thence

northerly to the point of beginning.

The area bounded by Market Street (State Route 43) from the West Virginia/Ohio border west to Sunset Blvd. (U.S. Route 22).

Sunset Blvd. west to the Steubenville Township/Cross Creek Township boundary, the township boundary south to the

Steubenville Corporation limit, the corporation boundary east to State Route 7, State Route 7 South to the Steubenville Township/

Wells Township boundary, the township boundary east to the West Virginia/Ohio border, and North on the border to Market

Street

The area bounded on the south by a line from UTM coordinate 694000mW, 5157000mN, west to 681000mW, 5157000mN, thence

north along a line to coordinate 681000mN, 5172000mN, thence east to 694000mW, 5172000mN, thence south to the beginning

coordinate 694000mW, 5157000mN.

14 When cities or towns are shown, the area of concern is defined by the municipal boundary limits as of November 15, 1990 (the date of enactment of the Act) except for areas which were formerly Group I, in which case the area of concern is defined by the municipal boundary limits as of October 31, 1990 (See 55 FR

45799). (This footnote Is applicable to today's action and also corrects the first footnote to the table listed In the March 15, 1991 FEDERAL REGISTER notice (56 FR

11105).) 15 When a planning area is shown, the area of concern Includes the entire planning area as of November 15, 1990 (the date of enactment of the Act) except for areas which were formerly Group I, in which case the area of concern is defined by the entire planning area as of October 31, 1990 (see 55 FR 45799). This is true

except to the extent the planning area is further defined (e.g., by township, range, and/or section). Such geographical descriptors remain a part of the nonattainment

boundaries irrespective of whether they are Included in the planning area. (This footnote is applicable to today's action and also corrects the second footnote to the

table listed in the March 15, 1991 FEDERAL REGISTER notice (56 FR 11105).) "6 Audrain County, Missouri, was removed as an Initial PM-t0 nonattainment area. See comments above.

"7 Lubbock, Texas, was removed as an initial PM-10 nonattainment area. See comments above.

IV. Significance of Today's Action

By November 15. 1991, States must

adopt and submit to EPA a SIP revision

for all those areas that were classified

as moderate PM-10 nonattainment areas

by operation of law upon enactment of

the Act (see subpart 4 of part D of title I

of the Act as amended). In particular,

section 189(a) of the Act requires that all

of the initial moderate PM-10

nonattainment areas submit a SIP by

November 15, 1991 which includes the

following: (1) Either a demonstration

(including air quality modeling) that the

plan will provide for attainment by

December 31, 1994 or a demonstration

that attainment by that date is

impracticable; and (2) provisions to

assure that reasonably available control

measures (including reasonably

available control technology) for the

control of PM-10 are implemented by

December 10, 1993. In addition, a new

source permit program meeting the

requirements of part D of the Act is

required for the construction and

operation of new and modified major

stationary sources of PM-10 (including,

in some cases, PM-10 precursors). A SIP

revision meeting this requirement is due

by June 30, 1992 for all of the initial

moderate PM-10 nonattainment areas.

The EPA will provide additional

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guidance on SIP requirements for these

areas in the near future. Also note that

EPA will be reclassifying some of these

initial PM-10 nonattainment areas from

moderate to serious because they

cannot practicably attain the PM-10 air

quality standards by December 31, 1994

(see section 188(b)(1) of the Act). If

reclassified as serious, these areas will

be subject to additional control

requirements and a new attainment

date. The EPA will work with the States

in order to develop a proposed list of

moderate areas to be reclassified as

serious.

V. Effective Date of This Notice

As mentioned, the effective date of

the announcement of the designation

and classification of areas adjusted or

corrected in today's notice is August 8,

1991. While 5 U.S.C. 553(d) (the APA)

states that the effective date of certain

administrative actions must be 30 days

after publication, EPA does not believe

that provision of the APA is applicable

to this action. Section 107(d)(2) of the

Act expressly states that "promulgation

or announcement" of a designation

under section 107(d)(4) shall not be

subject to 5 U.S.C. 553-557. The

provision establishing the PM-10

designations that occurred by operation

of law upon enactment of the Act (the

designation of the "initial PM-10

nonattainment areas") appears at

section 107(d)(4)(B). Thus,

announcement of the initial PM-10

nonattainment areas is exempt from the

notice-and-comment rulemaking

procedures set forth in 5 U.S.C. 553-557,

including the § 553(d) requirement that

the effective date of certain actions must

be 30 days after publication.18

VI. Finality

The EPA will take final action on the

initial designations for PM-10 (under

section 107(d)(4)(B) of the Clean Air Act)

for the purposes of section 307(b) of the

Act when EPA formally codifies these

designations in 40 CFR part 81. This

includes those designations announced

in the March 15, 1991 notice and any

subsequent modifications made in this

notice. As noted, EPA is expected to

10 If the APA requirement that publication

precede the effective date of certain actions by 30

days was deemed applicable to today's action, EPA

believes this action would be within the purview of

the good cause exception to this requirement See 5

U.S.C. 53(d)[3). The March 15, 1991 Federal

Register notice announcing the initial PM-10

nonattainment areas was effective 60 days after

publication li.e, May 14. 1991) in order to allow for a 30-day comment period and any appropriate

follow-up adjustments by EPA. In this Federal

Register notice. EPA responds to comments

addressing the March 1991 notice. Thus, there Is no reason to defer the effective date further.

complete a part 81 codification for PM10 and other title I air pollutants in the

near future.

VII. Authority

Sections 107(d)(2), 107(d)(4), 110

(including 110(k)(6), 188(a), and 301 of

the Act provide authority for today's

action.

Dated: July 31, 1991.

Michael Shapiro,

Assistant Administrator for Air and

Radiation.

[FR Doc. 91-18827 Filed 8-7-91; 8:45 am]

BILUNG CODE 58O-50-.M

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 1

[FCC 91-2171

Standards for Assessing Forfeitures

AGENCY: Federal Communications

Commission.

ACTION: Policy statement.

SUMMARY: This policy statement

establishes standards-to be used by the

Commission in assessing forfeitures.

Adoption of the Policy Statement will

assist the Commission in ensuring that

similarly situated violators are treated

in a similar manner and will provide

guidance to the public regarding the

forfeitures that can be expected in

connection with specific violations.

EFFECTIVE DATE: August 8, 1991.

FOR FURTHER INFORMATION CONTACT:.

David H. Solomon, Office of General

Counsel, Federal Communications

Commission (202) 632-6990.

SUPPLEMENTARY INFORMATION:

Policy Statement

Adopted: July 11, 1991; Released: August 1,

1991.

By the Commission:

I. Introduction

1. In this Policy Statement, we

establish standards for assessing

forfeitures. These standards are set forth

in the appendix. We intend to be guided

in the future by these standards,

although we note that we remain "free

to exercise * * * discretion in

situations that arise" in specific case.

See Guardian Federal Savings & Loan

Ass'n v. Federal Savings and Loan

Insurance Co., 589 F. 2d 658, 666 (DC Cir.

1978).

II. Background

2. The Commission has traditionally

assessed forfeitures on a case-by-case

basis, in light of relevant precedent. In

1989, Congress substantially increased

the dollar amounts of our forfeiture

authority. Public Law No. 100-239, 103

Stat. 2131. As the Commission

implements this increased forfeiture

authority, we believe it is appropriate to

depart from our traditional case-by-case

approach and adopt more specific

standards for assessing forfeitures. Such

standards will assist the Commission in

ensuring that similarly situated violators

are treated in a comparable manner, and

will provide guidance to the public

regarding the forfeitures that can be

expected in connection with specific

violations. (The Commission remains

free, of course, to respond to violations

with other or additional action, for

example, admonishment, revocation or

non-renewal.) Establishing forfeiture

standards is consistent with a

recommendation of the Administrative

Conference of the United States (ACUS),

and is similar to approaches taken by

some other independent regulatory

agencies. See Agency Assessment and

Mitigation of Civil Money Penalties,

Recommendation No. 79-3, 1 CFR

305.79-3; General Statement of Policy

and Procedure for NRC Enforcement

Actions, 10 CFR chapter 1, part 2,

appendix C.

IlL Discussion

3. Section 503 Forfeitures. Most

Commission forfeitures are issued under

the Commission's general forfeiture

authority contained in section 503 of the

Act. Under section 503(b)(2), for each

violation or each day of a continuing

violation, the Commission may now

assess forfeitures of up to $25,000

against broadcasters, cable operators or

applicants for such facilities, $100,000

against common carriers or applicants

for such facilities, and $10,000 against

others. In addition, there is a limit on

forfeitures for continuing violations

involving a single act or failure to act of

$250,000 for broadcasters, cable

operators or applicants for such

facilities and $1,000,000 for common

carriers or applicants for such facilities.

A limit of $75,000 applies to continuing

violations involving a single act or

failure to act by others.

4. Our new standards for section 503

forfeitures establish base forfeiture

amounts for specific classes of section

503 forfeitures. The base forfeiture

amounts are based on a ranking of a

relative gravity of the violation

involved. The base amounts are

computed as a percentage of the

statutory maximum for the service

involved. For example, failure to comply

with prescribed tower lighting and

3766.5

HeinOnline -- 56 Fed. Reg. 37665 1991
37666 Federal Register / Vol. 56, No. 153 / Thursday, August 8; 1991 / Rules and Regulations

marking requirements is generally an

extremely grave offense and thus has a

base forfeiture amount of 80 percent of

the relevant statutory maximum-

$20,000 for broadcasters and cable

operators, $80,000 for common carrier

and $8,000 for others. In contrast, failure

to provide required station identification

is generally a more, minor offense and

thus has a base forfeiture amount of 10

percent of the relevant statutory

maximum-'$2,510 for broadcasters and

cable operators, $10,000 for common

carriers and $1,000for others. We 7

recognize'that one effect of this

approach is that licensees in different

services will receive different forfeitures

for the same offense. We believe this

approach is consistent with

congressional intent in establishing

different statutory maxima for different

services, and at the same time ensures

that all similarly situated entities are

treated similarly.

5. Once the relevant base forfeiture

amount is determined for a section 503

forfeiture, the next step under our

standards is to apply the relevant

upward and downward adjustment

criteria to the base amount. Each of the

upward and downward adjustment

criteria is assigned a specific percentage

range that is applied against the base

forfeiture amount. The adjustment

*criteria we have selected are derived

from section 503(b)(2)(D) of the-Act,

which instructs the Commission to "take

into account the nature, circumstances,

extent, and gravity of the violation and,

with respect to the violator, the degree

of culpability, any history of prior

offenses, ability to pay, and such other

matters as justice may require." In

establishing specific criteria to carry out

this statutory mandate, we have also

been guided by the ACUS

recommendation on forfeiture

standards. See 1 CFR 305.79-3

(suggesting that agencies take into

account the economic benefit of the

violation, the harm caused by the :

violation and the violator's financial

condition).

6. How the standards work can be

illustrated with the following example

involving a broadcast licensee who, for

one day, broadcasts using unauthorized

equipment. Under the standards, a base

forfeiture amount of $10,000 is '

established. If the relevant upward

adjustment criteria were determined to

be a 70% increase for intentional

violation and a 40% increase for

substantial harm, each of which is

within the range established in the

standards, increases of $7,000 (70% of

$10,000) and $4,000 (40% of $10,000)

would be added to the base forfeiture,

for an adjusted forfeiture of $21,000. If it

were also determined that there should

be a 30% downward adjustment for a

history of overall compliance by the

licensee, which is also within the

established range, the forfeiture would

be reduced by $3,000 (30% of 10,000) to

$16, 3. If the broadcaster made a

specific showing that an $18,000

forfeiture would cause substantial

economic hardship, the forfeiture would

be further reduced.I If application of the

criteria led to an amount exceeding the

statutory ceiling, the forfeiture amount

would-be reduced to the statutory

ceiling.

7. Non-Section 503 Forfeitures.

Various sections of the Communications

Act provide the Commission with

forfeiture authority regarding opecific

statutory violations. These sections of

the Act generally.state a prescribed

forfeiture amount (rather than a

maximum) for violation of that section.

For example, section 220(d) of the Act

provides that a common carrier that

' See appendix, note 6.

fails to comply with prescribed.

accounting and other record-keeping

requirements shall forfeit $6,000 per day.

Under our forfeiture standards, such

statutory amounts will be used as the

base forfeiture amounts fornon-section

503 forfeitures. Consistent with section

504(b).of the Act, which permits

remission or mitigation of the

Commission the same downward

adjustment criteria to be used in section

503 forfeiture proceedings will also be

used in non-section 503 forfeiture

proceedings.

IV. Conclusion

8. We believe adoption and

publication of these forfeiture policies

will assist the Commission in ensuring

that similarly situated violators are

subjected to comparable forfeitures and

will aid our enforcement efforts by

making clear in advance the likely

consequences of violations.

9. Accordingly, it is ordered that this

Policy Statement is adopted, to be

effective upon publication in the Federal

Register.

10. The notice and comment and

effective date provisions of the

Administrative Procedure Act do not

apply to this Policy Statement. 5 U.S.C.

553(b)(A), (d)(2).

11. This action is taken pursuant to

sections 4(i), 202(c), 203(e), 205(b),

214(d), 219(b), 220(d), 223, 303(r), 30M

386, 503(b), 504, 506 and 634 of the

Communications Act of 1934, as

amended, 47 U.S.C. § § 154(i), 202(c4.

203(e), 205(b), 214(d), 219(b), 220(d), 223

303(r), 362, 386, 503(b), 504, 507, 554.

List of Subjects in 47 CFR Part I

Penalties.

Federal Communications Commission.

Donna R. Searcy,

Secretary.

APPENDIX-STANDARDS FOR ASSESSING FCC FORFEITURES

1. Base Amounts for Section 503 Forfeitures

Violation

Misrepresentationflack of candor..................... ...... ............................................................................. Failure to comply with prescribed lighting and marking .....................................................................................

Construction and/or operation without an Instrument of authorization for the service ............ .........

Unauthorized substantial transfer of control .................................................................................................

Violations of rules relating to distress and safety frequencies ..............................

False'distress communications..: ...................................................................................................................

Failure to permit inspection ......... ...................................

Violations of operator services requirements ............................. . ......................................................

Malicio sinterferne ................................................ ................... .

Failure to respond to CQmmission communications.. ............................................................................................

Importation or marketing of unauthorized equipment .. ............................................ ......................................

Exceeding authorized antenna height ...............................................................................................................

Exceeding power limits ...................... ................... ................................................................................................

Unauthorized emissions,.. ... ............................................................... ........................................................

Percent of

Stat. MaWi'

BC/Cabl

($25,000)

CC . ($100,000) I 1'~4I

20,000

20,000

20,000

20,000

20,000

"20,000

18,750

N:A,

17,500

17,500

N.A.

15,000

12.500

12.500

80,000

80,000.

80.000

00.000

80.000

80.000

75,000

75,000

70.000

70,000

•70.000.

60,000

5q,00

50.000I

Other

($10.0)

8.000

8,000

8,000

8.000

B,000

8,000

7,500

7,500

7,000

7,000

7.000

6.000

5.000

HeinOnline -- 56 Fed. Reg. 37666 1991
Federal Register / Vol. 56, No. 153 / Thursday, August 8, 1991 / Rules and Regulations 37687

APPENDIX-STANDARDS FOR ASSESSING FCC FORFEITURES-Continued

Violation

Using -unauthorized frequency ....................................... ; ..........................................................................................

EBS equipment not Installed or operational...................

Transmission of Indecent/obscene material .............................................................................. ....... ...........

Violation of broadcast EEO rules ...................... ...................................................................................................

Violation of political rules: reasonable access, lowest unit charge, equal opportunities and discrimination ........

Unauthorized discontinuance of service ......................................................................................................................

Use of unauthorized equipment................. ............... ..........................................................................................

Violation of children's television commercialization or programming requirements . ............................. Violation of main studio rule ...................................................................................................................................

Construction or operation at unauthorized location .................................................................................................... Failure to engage In required frequency coordination ................................................................................................ Failure to file required forms or Information .................................................................................................................

Violation of public file rules ........................................................................................ ......................................

Violation of sponsorship ID requirements ...............................................................................................................

Violation of requirements pertaining to broadcasting of Iotteries or contests . .......................................

Violation of technical iogs/time brokerage agreements file requirements ................... . .............. Broadcasting telephone conversations without authorization .................................................................................... Failure to make required measurements or conduct required monitoring ................ ................

Violation of enhanced underwriting requirements .................................................................................................

Failure to provide station ID ...................... .........................................................................................................

Unauthorized pro forma transfer of control ...............................................................................................................

Failure to maintain required records ...................................................................... ...................................................

Miscellaneous violations ............................................................................................................................................

Percent of BC/Cable CC Other

Stat. Max., ($25,000) ($100,000) ($10,000)

12,500

12,500

12,500

12,500

12,500

10,000

10,000

10,000

10,000

'10,000.

10,000

7,500

7,500

6,250

6,250

5,000

5,000

2,500

2,500

2,500

2,500

2,500

1,250

50,000

N.A.

N.A.

N.A.

N.A.

40,000

40,000

N.A.

NA,

40,000

40,000

30,000

N.A.

NA

NA

N.A.

N.A.

10,000

NA

10,000

10,000

10,000

5,000

The forfeiture ceilings per violation or per day of a continuing violation contained In section 503 of the Communications Act and the Commission's Rules are $100,000 for common carriers or applicants, $25,000 for broadcasters and cable operators or applicants, and $10,000 for all others. 47 U.S.C. 503(b)(2); 47 CFR

1.80. In addition, for continuing violations involving a single act or failure to act, there is an overall limit of $1,000,000 for common carriers or applicants. $250,000 for

broadcasters and cable operators or applicants, and $75,000 for all others. Id The base amounts listed are for a single violation or single day of a continuing violation. Unless Commission authorization is required for the behavior involved, a section 503 forfeiture proceeding against a non-licensee or non-applicant who is not a cable operator or is not operating in the radio control or citizens band radio services can only be initiated for a second violation, after issuance of a citation in

connection with a first violation. 47 U.S.C. 503(b)(5). Forfeitures issued under other sections of the Act are dealt with separately in Section III below.

I. Adjustment Crteria for Section 503 Forfeitures

Upward Adustment COtea 2

(1) Egregious misconduct ........................................................................................................................................................................................................................ 50-90%.

(2) Ability to pay/relative disincentive 3 ....................................................................................................................................................................................................... 50-9 0 % .

(3) Intentional violation .......................................................................................................................................................................................................................... 50-90%.

(4) Substantial harm . . . ................................... ................................................................................................................................................................................ 40-70%.

(5) Prior violations of same or other requirements ..................................................................................................................................................................................... 40-70%.

(6) Substantial economic gain ......................................................................................................................................... .... 20-50%.

(7) Repeated or continuous violation ........................................................................................................................................................................................................ Varies.

Downward Adjustment Critena

(1) Minor violation 0 ' ............................................. . ............ 50-90%.

(2) Good faith or voluntary disclosure ...................................................................................................................................................................................................... 30-60%.

(3) History of overall compliance ................................................................................................................................................................................................................. 20-50%.

(4) Inability to pay .......................................................................................................................................................................................................................................... Varies.'

2 Both upward and downward adjustments are applied to the base forfeiture amount. More than one factor may apply In a given case.

3 The Commission is required by the Communications Act to take ability to pay Into consideration in assessing forfeiture amounts. 47 U.S.C. 503(b)(2)(D). 'The percentage adjustment for this criterion could vary up to the statutory maximum per violation or per day of a continuing violation.

'A "mino(' violation is misconduct which is at a low level of seriousness within the violation category. A minor violation Is the opposite of "egregious

misconduct." o As noted above, the Commission is required by the Communications Act to take ability to pay Into consideration In assessing forfeiture amounts. 47 U.S.C.

503(b)(2)(D). The application of a downward adjustment for inability to pay is based upon a showing of substantial financial hardship. Inability to pay would generally

be considered as a downward adjustment factor only upon a specific showing by the entity against whom forfeiture action is taken.

//I. Non-Section 503 Forfeitures

Violation Statutory amount1

Section 202(c)....... Common carrier discrimination ............................................................................................................................................................... $6,000+$300/day.

Section 203(e) . Common carrier tariffs ......................................................................................................................................................................... $6,000+$300/day.

Section 205(b) . Common carrier prescritions ................................................................ ................................................................ $12,000.

Section 214(d).......... Common carrier line extensions. ........................................................................................................................................................ $1,200/day.

Section 219(b) ......... Common carrier reports .............................................................................................................. ......... $1,200.

Section 220(d)........ Common carrier records & accounts .......................................................... $6,000/day.

Section 223 ....... Dial-a-Por. 7 . .......... I ..................................................................................................................................................................... $50,000 maximum.

Section 364/386 . Ship radio ............................................................................................................................................................................................. $5,000 (owner).

$1,000 (master).

Section 506 .............. Great Lakes Agreement ................................................................................................................................................................ $500 (owner).

$100 (master).

Section 634 ............. Cable EEO ............................................... ..................................................................................................................... $.2................... $200.

NOTE: Non-section 503 forfeitures may be adjusted downward using the "Downward Adjustment Criteria" shown for section 503 forfeitures In section It above.

I Unlike section 503, which establishes maximum forfeiture amounts, other sections of the Act, with one exception, state prescribed amounts of forfeitures for

violations of the relevant section. These amounts are then dubject to mitigation or remission under section 504 of the Act. The one exception is section 223 of the

Act, which provides a maximum of $50,000. For convenience, the Commission will treat the $50,000 set forth In section 223 as if it were a prescribed base amount

subject to downward adjustments.

[FR Doc. 91-18900 Filed 8-7-91; 8:45 am]

BILLING CODE 6712-01-M

5,000

NA

5,000

N.A

NA

4,000

4,000

N.A.

N.A.

4,000

4,000

3,000

N.A.

NA

NA

NA

N.A.

1,000

NA

1,000

1,000

1,000

5oo

HeinOnline -- 56 Fed. Reg. 37667 1991
37616 Federal Register / Vol. 56, No.. 153 / Thursday, August 8, 1991 / Rules and Regulations

[D)EPARTMENT OF HEALTH AND

HUMAN SERVICES

Office of the Secretary

43 CFR Parot 352

Acquisition Regulation; Pubflcatdon;

Correction

AGENCY. Department of Health and

Human Services (HHS).

ACTDoN: Interm rule With request for

comments; correction.

SUMMARY: The Department of Health

and Human Services is correcting the

signature block in the preamble which

appeared in the Federal Register on July

24, 1991 (56 FR 33881).

FOR FURTHER 0NFORMATION CONTACT:

Mr. Ed Lanham at (202) 245-8890.

SUPPLEMENTARY INFORMAflON The

signature block which appeared in the

referenced Federal Register is corrected

to read as follows:

Terrence #f. Tychan,

Acting Deputy Assistant Secretary for

Management andAcquwsition.

Dated: August 1, 1991.

Terrence D. Tychan,

Director, Office of Acquisition and Grants

Management.

[FR Doe. 91-188 8 Filed 8--7-91; 8:45 amin

BIU. N CODE 418-O4-N

DEPARTMENT OIF THE INTERIOR

Fish and Wild lfe Service

50 CFR Part 17

RON 1018-ASS7

Endangered and Threatened Wildlife

and Plants; Emergency Rule to List the

Kanab Ambersnaig as Endangered

AGENCY: Fish and Wildlife Service,

Interior.

ACTOON: Emergency rule.

SUMMARY: The U.S. Fish and Wildlife

Service (Service) exercises its

emergency authority to determine the

Kanab ambersnail (Oxyloma haydem

asp. kanabensis) to be an endangered

species pursuant to the Endangered

Species Act of 1973 (Act), as amended.

Only two populations of this snail are

known to exist, both on wetlands on

private lands in Kane County, Utah. A

status survey completed in 1991

discovered that one population is nearly

extirpated, while the other population

has been subjected to major habitat

alteration and destruction. Both

populations are exceptionally

vulnerable to extinction from natural or

human-caused events. Immediate listing

would trigger the protections In sections

7 and 9 of the Act, and allow the Service

to begin pursuing land acquisition. 'he

Service finds that good cause exists to

make this emergency rule effective upon

publication. The emergency rule will

inplement Federal protection for 240

days. A proposed rule to list the Kanab

ambersnail as endangered will follow

this emergency rulemaking, and will

allow for public comment.

DATESnhis emergency deterination ts

effective on August 8, 1991, and expires on April 3, 1992.

ADDRESSES: The complete file for this

rule is available for inspection, by

appointment, during normal business

hours at the U.S. Fish and Wildlife

Service, Salt Lake City Fish and Wildlife

Enhancement Field Office, 2078

Administration Building, 1745 West 1700

South, Salt Lake City, Utah 84104.

FOR FURTHER ONFORMATOON CONTACrt

Clark D. Johnson at the above address,

telephone 801/524-4430 or FTS 588-4430.

SUPPLEMENTARY I NFORMATION.:

Background

The Kanab ambersnail is a terrestrial

snail in the family Succineidae. It has a

mottled grayish-amber to yellowishamber colored shell. The shell is dextral,

thin-walled, with an elevated spire and

a broad, patulous (expanded) aperture.

Fully mature individuals are about 14 to

19 mm (V to /4 inch) long, 7 to 9 mm (V

to V inch) in diameter, with 3% to 3%

whorls in a drawn out spire. Its eyes are

borne at the ends of long peduncles

(stalks), while the tentacles are reduced

to small protuberances at the base of the

eye stalks (Pilsbry 1948, Clarke. 1991).

Specimens of the Kanab ambersnail

were first collected in 1909 by James

IFerriss from" 'The Greens, 6 miles

above Kanab, on Kanab Wash, on a wet

ledge among moss and cypripediums"

(Ferriss 1910, Pilsbry 1948). These

specimens were originally placed in the

species Succinea hawkinsi (Ferriss 1910,

Chamberlin and Jones 1929). Henry

Pilsbry (1948) transferred these

specimens to the genus Oxyloma and

erected the subspecies kanabensis in

the species haydem for them. Clarke

(1991) notes that Pilsbry's decision to

accord the Kanab ambersnail

subspecific status was based on shell

features alone, and that, as Pilsbry

himself noted, its taxonomic status

should be reevaluated. Clarke (1991)

suggests that the Kanab ambersnail may

deserve species status. For the purpose

of this: listing action, the Service will

recognize this taxon at the subspecies

level. If the Kanab ambersnail is later

recognized as a species, this willnot

.affect its designation as endangered.

The Kanab ambersnail lives in

marshes watered by springs and seeps

at the base of sandstone cliffs. It is

absolutely associated with a perennially

wet soil surface or shallow standing

water. None were found in drier areas,

even under logs or in other

microhabitats commonly frequented by

other land snails (Clarke 1991).

The presence of cattail (Typha

domnngensis), or at least the

permanently wet ground which Typlha

indicates, is believed to be a critical

component of the species habitat. It is

most densely aggregated under fallen

Typha stalks at the edges of thick Typha

stands. The snails are also frequently

seen just within the mouths of vole

burrows. Typha may provide crucial

vegetative cover for the snails. The

American robin (Turdas migratorius)

has been observed to feed on the Kanab

ambersnail and may be the snail's

princ:pal natural predator (Clarke 1991).

The Kanab ambersnail is known from

two populations about'2.1 km (1.3 milesl

apart. Both populations are on privately

owned lands. Other likely sites in the

area have been searched on foot by a

knowledgeable local biologist (Mr.

Blame Lunceford) and during the recent

status survey effort (Clarke 1991), but no

other snail colonies were discovered.

The nearly extirpated population is

located in a marsh at the foot of a cliff in

Kanab Creek Canyon. The Kanab

ambersnail was once common at this

site. Though once larger, this habitat

was discovered to have been reduced to

a long narrow marsh measuring about 46

m (150 feet) long and 15 cm (6 inches)

wide in 1990. The marsh is watered by a

seep, but had been partially dewatered

by the installation of a ditch and

drainpipe by the landowner to provide

water for domestic livestock which

graze in a field below. An intensive

search of this habitat in 1990 revealed

only three live snails (Clarke 1991).

The larger population is located in

Three Lakes Canyon, a tributary

drainage of Kanab Creek, about 10 km (6

miles) northwest of the town of Kanab,

Utah. The Kanab ambersnail occurs

throughout the marshes and wet

meadows which surround the "Three

Lakes" ponds, an area about 0.8 km (0.5

miles) long and up to 91 m (100 yards)

wide. This populationwas estimated to

have as many as 100,000' individuals in

June 1990. Soon thereafter, a significant

portion of this snail colony was

HeinOnline -- 56 Fed. Reg. 37668 1991