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Citation: 64 Fed. Reg. 48305 1999
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### Federal Register/Vol. 64, No. 171/Friday, September 3, 1999/Rules and Regulations

[FRDoc. 99 22933 Filed 9 2 99; 8:45 am]

BILLING CODE 6560-50-P



### ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[CA-221-158; FRL-6430-7] 

### Approval and Promulgation of Implementation Plans;CaliforniaOwens Valley Nonattainment Area; PM-10

AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.

SUMMARY: EPA is taking final action to approve a State Implementation Plan (SIP) submitted by the State of California for attaining theparticulate
matter (PM-10) national ambient air quality standards (NAAQS) in the Owens Valley Planning Area, along with the State's request for an extension to December 31, 2006 to attain the PM-10 NAAQS in the area. EPA is taking these final actions under provisions ofthe Clean Air Act (CAA) regarding EPA action on SIP submittals, SIPs for national primary and secondary standards, and plan requirements for nonattainment areas.
EFFECTIVEDATE: This action is effective

on October 4, 1999.
ADDRESSES: The rulemaking docket for this notice, may be inspected and copied at the following location during normal business hours. Areasonable fee may be charged for copying parts ofthe docket.

U.S. Environmental Protection Agency, Region 9, Air Division, 75 Hawthorne Street, San Francisco, CA 94105-3901.

Copies ofthe SIP materials area also available for inspection at the addresses listed below:

California Air Resources Board, 2020 L

Street, P.O. Box 2815, Sacramento, CA 95814; or Great Basin Unified Air Pollution

Control District, 157 Short Street, Suite 6, Bishop, CA 93514.

FOR FURTHER INFORMATION CONTACT: Larry A. Biland, U.S. Environmental Protection Agency, Region 9, Air Division (AIR-2), 75 Hawthorne Street, San Francisco, CA 94105-3901, (415) 

### 744-1227.

SUPPLEMENTARY INFORMATION: I. Background
The 1998 PM-10 plan (1998 SIP) for the Owens Valley Planning Area Iwas adopted on November 16, 1998, by the Great Basin Unified Air Pollution Control District (GBUAPCD or the District), and submitted as a SIP revision by the California Air Resources Board (CARB) on December 10, 1998. EPA determined this submission to be complete on February 2, 1999.2

II. Summary ofEPA Action

EPA is finalizing approval ofthe serious area SIP submitted by the State ofCalifornia for the Owens Valley PM10 nonattainment area. Specifically, EPA is approving the 1998 SIP with respect to the CAA requirements for public notice and involvement under section 110(a)(1); emissions inventories under section 172(c)(3); control

measures under section 110(k)(3), as meeting the requirements of sections 110(a) and 189(b)(1)(B); Reasonable Further Progress (RFP) and rate-ofprogress milestones under section 189(c); contingency measures under section 172(c)(9); and demonstration of attainment under section 189(b)(1)(A). EPA is also finalizing approval ofthe State's request for an extension ofthe attainment date from December 31, 2001, to December 31, 2006, under CAA section 188(e).

These actions were proposed onJune 25, 1998 (64 FR 34173-34179). The reader isreferred to that notice for additional detail on the affected area and the SIP submittal, aswell as a summary ofrelevant CAA provisions and EPA interpretations ofthose provisions.

III. Response toPublic Comments

EPA received only one comment, from Dorothy Alther ofCalifornia Indian Legal Services, representing the Lone Pine and Timbisha Shoshone Indian Tribes and the Owens Valley Indian Water Commission. The commenter summarized the position ofthe Tribes

ashaving some concerns regarding the 1998 SIP and its implementation, but being anxious to see work begin on the Dry Lake. The comments did not urge EPA disapproval ofthe 1998 SIP.

Ms. Alther stated that EPA erred in statingthat required controls on 16.5 square miles in the first phase of implementation is discretionary. EPA agrees. The Los Angeles Department of

1For a description ofthe boundaries ofthe Owens Valley Planning Area, see40 CFR81.305.

2EPA adopted the completeness criteria on February 16, 1990 (55 FR 5830) and, pursuant to section 110(k)(1)(A) ofthe CAA, revised the criteria

on August 26, 1991 (56FR42216). Water and Power is mandated toplace controls on 10 square miles ofthe Owens Lake bed. Implementation of controls on an additional 3.5 square miles in Phase 2is required "unless the Districtdetermines, on orbefore December 31, 2001, that the Owens Valley Planning Area (OVPA) will attain the PM-10 NAAQS by December 31, 2006 without implementation offurther control measures." Implementation of controls on an additional 3 square miles in Phase 3 is required unless the District makes a similar determination by December 31, 2002. Board Order #981116-01, Paragraphs 2 and 3.

The commenter expressed concern regarding the lack ofcertainty regarding what measures will be implemented in the second increment ofthe 1998 SIP. EPA believes that the second increment (Phases 4-6) ofthe SIP control strategy includes an enforceable City obligation to implement controls on additional

areas ofthe Owens Lake bed by particular dates sufficient to meet progress and attainment requirements as determined by the District. In view of the absence ofinformation on largescale fugitive dust control projects at a dry lakebed, EPA believes that it is reasonable to allow the City and District the discretion to identify more precisely the specific measures that will be most effective in achieving attainment, based

on the practical experience gained in implementing the first increment ofthe control strategy. The commenter and other stakeholders will have an opportunity to review the specific strategies included in a SIP revision to be submitted on December 31, 2003. EPA will work with theDistrict and City to ensure thatthe selected strategies in the second increment are adequate to achieve progress and attainment by 2006, and that any necessary SIP updates areprepared and adopted in a process thatprovides full opportunities forpublic involvement.

The commenter disagreed with EPA's discussion and proposed approval ofthe 5-year attainment date extension. The commenter did not explain why she believed that the SIP failed to qualify for

an extension. EPA continues to believe that the area meets the CAA section 188(e) criteria for the extension. Despite

an expeditious schedule for implementing all feasible and effective control measures, the 1998 SIPprovides information showing that attainment by 2001 is impracticable. The Statehas complied with allimplementation requirements and commitments pertaining to the area in the implementation plan. Finally, EPA continues to conclude that the 1998 SIP includes the most stringent measures 

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that are included in the implementation plan ofany state or are achieved in practice in any state, and can feasibly be implemented in the area.

The commenter questioned the adequacy ofthe attainment demonstration, since the modeling assessment shows the probable need to control 22,400 acres and the 1998 SIP concentrates on control of 14,400 acres. The Districthas committed to aprogram ofcontinuing scientific investigation of emission reductions and air quality progress, and based on thisrefined information will adjust the strategy as needed to provide for attainment by 2006. Ifattainment has not been achieved in the first increment of control, theDistrict will revise the SIP's control strategy in 2003 to provide controls over the lake playa sufficient to attain the NAAQS by 2006. EPA will monitor the results ofthese strategy assessments and work with theDistrict and other plan participants to ensure that the plan is adjusted, as maybe necessary, to meetprogress and attainment deadlines.

The commenter noted that the plan shows a design day PM-10 concentration of 149.95 gg/m 3

, which is technically below the 150 gg/m 3 24- hour PM-10 NAAQS, but provides no "cushion." EPA agrees that theplan predicts that the control strategy will reduce peak concentrations only to levels very slightly below the 24-hour NAAQS. Whilethe attainment provision
meets minimal approval criteria, itwill be important for the District, State, and EPA to verify that implementation ofthe plan ishaving thepredicted impact on air quality.

For the reasons stated above, EPA is finalizing the proposed plan approval.


### IV. Administrative Requirements

A. Executive Order12866

The Office ofManagement and Budget (OMB)has exempted thisregulatory action from Executive Order (E.O.) 12866, Regulatory Planning and Review.

B. Executive Order12875

Under Executive Order 12875, Enhancing theIntergovernmental Partnership, EPA may not issue a regulation that is notrequired by statute and that creates a mandate upon a State, local or tribal government, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by those governments, or EPA consults with those governments. If EPA complies by consulting, Executive Order 12875 requires EPA to provide to the Office ofManagement and Budget a description ofthe extent ofEPA's prior consultation with representatives of affected State, local and tribal governments, the nature oftheir
concerns, copies ofany written communications from the governments, and a statement supporting the need to issue the regulation. In addition, Executive Order 12875 requires EPA to develop an effective process permitting elected officials and other representatives ofState, local and tribal governments "to provide meaningful and timely input in the development of regulatory proposals containing significant unfunded mandates." Today's rule does not create a mandate

on State, local or tribal governments. The rule does not impose any enforceable duties on these entities. Accordingly, the requirements of section 1(a) ofE.O. 12875 do not apply
to this rule.
C.Executive Order13045

Protection ofChildren from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to anyrule that: (1) Is determined to be "economically significant" asdefined under E.O. 12866, and (2) concerns an environmental health or safety risk that EPA hasreason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. This rule is
not subject to E.O. 13045 because itis does not involve decisions intended to mitigate environmental health or safety risks.

D.Executive Order13084

Under Executive Order 13084, Consultation and Coordination with Indian Tribal Governments, EPA may not issue a regulation that is not required by statute, that significantly or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance
costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those governments. IfEPA complies by consulting, Executive Order 13084 requires EPA to provide to the Office of Management and Budget, in a separately identified section ofthe preamble to the rule, a description ofthe extent ofEPA's prior consultation with representatives ofaffected tribal governments, a summary ofthe nature oftheir concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084requires EPA to develop an effective process permitting elected officials and other representatives ofIndian tribal governments "to provide meaningful and timelyinput in the development of regulatory policies on matters that significantly oruniquely affect their communities." Today's rule does not significantly oruniquely affect the communities ofIndian tribal governments. Accordingly, the requirements ofsection 3(b) ofE.O. 13084 do not apply to this rule.

E. RegulatoryFlexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency to conduct

aregulatory flexibility analysis ofany rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on
a substantial number ofsmall entities. Small entities include small businesses, small not-for-profit enterprises, and small governmentaljurisdictions. This final rule will not have a significant impact on a substantial number ofsmall entitiesbecause SIP approvals under section 110 and subchapter I, part D of the Clean Air Act do not create any new requirements but simply approve requirements that the State is already imposing.Therefore, because the Federal SIP approval does not create any new requirements, Icertify that this action will not have a significant economic impact on a substantial number of small entities. Moreover, due to the nature oftheFederal-State relationship under the Clean AirAct, preparation offlexibility analysis would constitute Federal inquiry intothe economic reasonableness ofstate action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds. UnionElectricCo., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C.7410(a)(2).

F. UnfundedMandates

Under section 202 ofthe Unfunded Mandates Reform Act of 1995 ("Unfunded Mandates Act"), signed into law on March 22, 1995, EPAmust prepare abudgetary impact statement to accompany any proposed orfinal rule that includes a Federal mandate that mayresult in estimated annual costs to State, local, or tribal governments in the aggregate; or to private sector, of$100 million or more.Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives oftherule and

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### Federal Register/Vol. 64, No. 171/Friday, September 3, 1999/Rules and Regulations

is consistent with statutory requirements. Section 203 requires EPA
to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by therule.

EPA has determined that the approval action promulgated does not include a Federal mandate thatmay result in estimated annual costs of$100 million

or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action approves pre-existing requirements under State or local law, and imposes

no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.
G.Submission to Congressandthe ComptrollerGeneral

The Congressional Review Act, 5 U.S.C. 801 etseq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before arule may take effect, the agency promulgating the rule must submit arule report, which includes a copy ofthe rule, to each House ofthe Congress and to the Comptroller General oftheUnited States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House ofRepresentatives, and the Comptroller General ofthe United States prior to publication oftherule in the FederalRegister. This rule is not a "major" rule as defined by 5 U.S.C. 804(2).

H. Petitions forJudicial Review
Under section 307(b)(1) ofthe Clean Air Act, petitions forjudicial review of this action must be filed in the United States Court ofAppeals for the appropriate circuit by November 2, 1999. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality ofthisrule for thepurposes ofjudicial review nor does it extend the time within which apetition forjudicial review may be filed, and shall not postpone the effectiveness ofsuch rule

or action. This action may notbe challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Listof Subjects in 40 CFR Part52

Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Oxides ofnitrogen, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds. Dated: August 18, 1999. Felicia Marcus, RegionalAdministrator, RegionIX.
Part 52, chapter I, title40 ofthe Code ofFederal Regulations is amended as follows:

PART52-[AMENDED]

1.The authority citation for part 52 continues to read asfollows:

Authority:42U.S.C. 7401 etseq. 2. Section 52.220 is amended by addingparagraph (c)(247) to read as follows:
§52.220 Identificationof plan. )* * *** (c)* (267) New plan for Owens Valley PM10 Planning Area for the following agency was submitted on December 10, 1998 bythe Governor's designee.

(i) Incorporation byreference. (A) Great Basin Unified APCD. (1) Owens Valley PM-10 Planning Area Demonstration ofAttainment State Implementation Plan, Section 7-4, Commitment to adopt 2003 SIP Revision and Section 8-2, theBoard Order adopted on November 16, 1998 with Exhibit 1.

[FR Doc. 99 22930Filed 9 2 99; 8:45 am]
BILLING CODE 6560-50-P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 73

[FCC 99-147; MM Docket No. 91-259; RM7309, RM-7942, RM-7943, RM-7944, RM7948]

Radio Broadcasting Services; Canovanas, Culebra, Las Piedras, Mayaguez Quebradillas San Juanand Vieques, PR, and Christiansted and Frederiksted, VI
ACTION: Final rule; Application for review.

SUMMARY: This document denies an Application for Review filed by WKJB AM-FM, Inc. directed to the Memorandum OpinionandOrderin this proceeding. Based upon preferential FM allotment priorities, the Commission finds a proposed channel substitution, its reallotment, and the modification ofa station's license to be within the public's interest. With this action, the proceeding published September 16, 1996 (61 FR48638)is terminated. FOR FURTHER INFORMATION CONTACT: Robert Hayne, Mass Media Bureau (202) 418-2177. SUPPLEMENTARY INFORMATION: This is a synopsis oftheMemorandum Opinion andOrderin MM Docket No. 91-259, adopted June 17, 1999, and released June 21, 1999. The full text ofthis decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY-A257, 445 12th Street, SW, Washington, D.C.The complete text ofthis decision may also be purchased from the Commission's copy contractor, International Transcription Service, (202) 857-3800, 1231 20th Street, NW, Washington, D.C. 20036. Federal Communications Commission. Magalie Roman Salas, Secretary. [FR Doc. 99 23071 Filed 9 2 99; 8:45 am]
BILLING CODE 6712-01-P

DEPARTMENT OF THE INTERIOR

Fish and WildlifeService

50CFR Part 17
RIN 1018-AE22
Endangered and Threatened Wildlife and Plants; Final Endangered Status for10 Plant Taxa From Maui Nui, HA
AGENCY: Fish and Wildlife Service, Interior. ACTION:Final rule.

SUMMARY: Under the authority ofthe Endangered Species Act of 1973 (Act),

as amended, we (theU.S. Fish and Wildlife Service (Service)) determine endangered status for 10 plant taxaClermontiasamuelii(6ha wai), Cyanea copelandiissp. haleakalaensis(haha), Cyaneaglabra(haha), Cyanea hamatiflorassp. hamatiflora(haha), Dubautia plantagineassp. humilis (na'ena'e),Hedyotisschlechtendahliana

var. remyi (kopa),Kanaloa kahoolawensis(kohe malama malama o Kanaloa), Labordiatinifoliavar. lanaiensis(kamakahala), Labordia triflora(kamakahala), and Melicope munroi(alani).All 10 taxa are endemic
to theMaui Nui group ofislands in the Hawaiian Islands. This group includes Maui, Molokai, Lanai, and Kahoolawe. Clermontiasamuelii,Cyaneacopelandii ssp. haleakalaensis,Cyaneaglabra, Cyaneahamatiflorassp. hamatiflora, and Dubautia plantagineassp. hum ilis

are endemic to the island ofMaui. Hedyotisschlechtendahliana var. remyi and Labordiatinifoliavar. lanaiensisare 

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