Federal Register / Vol. 78, No. 77 / Monday, April 22, 2013 / Rules and Regulations 23677 

the United States. All designations and 

changes in designations of defense 

articles and defense services subject to 

permanent import control under this 

part must have the concurrence of the 

Secretary of State and the Secretary of 

Defense, with notice given to the 

Secretary of Commerce. 

■ 3. Amend § 447.11 by revising the 

definition of the term ‘‘Article’’ to read 

as follows: 

§ 447.11 Meaning of terms. 

* * * * * 

Article. Any of the defense articles 

enumerated in the U.S. Munitions 

Import List (USMIL). 

* * * * * 

■ 4. Amend § 447.21 as follows: 

■ a. Revise the introductory text. 

■ b. Remove the second ‘‘Note’’ in 

Category IV. 

■ c. Add and reserve after Category IV 

a heading ‘‘Category V’’. 

■ d. In Category VII, remove the ‘‘Note’’ 

after paragraph (c) and add and reserve 

paragraphs (d) and (e). 

■ e. In Category VIII, revise the title and 

remove the first ‘‘Note’’ after paragraph 

(a) and in its place add and reserve 

paragraph (b). 

■ f. Add and reserve after Category VIII 

a heading ‘‘Categories IX through XIII’’. 

■ g. Remove the ‘‘Note’’ after paragraph 

(b) in Category XVI. 

■ h. Add and reserve after Category XVI 

a heading ‘‘Categories XVII through 

XIX’’. 

■ i. Revise Category XXI. 

These amendments to § 447.21 read as 

follows: 

§ 447.21 The U.S. Munitions Import List. 

The following defense articles and 

defense services, designated pursuant to 

section 38(a) of the Arms Export Control 

Act, 22 U.S.C. 2778(a), and E.O. 13637 

are subject to controls under this part. 

For purposes of this part, the list shall 

be known as the U.S. Munitions Import 

List (USMIL): 

THE U.S. MUNITIONS IMPORT LIST 

(USMIL) 

* * * * * 

CATEGORY V [Reserved] 

* * * * * 

CATEGORY VII—TANKS AND 

MILITARY VEHICLES 

* * * * * 

(d) [Reserved] 

(e) [Reserved] 

* * * * * 

CATEGORY VIII—AIRCRAFT AND 

ASSOCIATED EQUIPMENT 

* * * * * 

(b) [Reserved] 

* * * * * 

CATEGORIES IX–XIII [Reserved] 

* * * * * 

CATEGORIES XVII–XIX [Reserved] 

* * * * * 

CATEGORY XXI—MISCELLANEOUS 

ARTICLES 

Any defense article or defense service 

not specifically enumerated in the other 

categories of the USMIL that has 

substantial military applicability and 

that has been specifically designed or 

modified for military purposes. The 

decision as to whether any article may 

be included in this category shall be 

made by the Attorney General with the 

concurrence of the Secretary of State 

and the Secretary of Defense. 

Dated: April 17, 2013. 

Eric H. Holder, Jr., 

Attorney General. 

[FR Doc. 2013–09392 Filed 4–19–13; 8:45 am] 

BILLING CODE 4410–FY–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2012–0960; FRL–9799–3] 

Revisions to the California State 

Implementation Plan, Imperial County 

Air Pollution Control District 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is finalizing approval of 

revisions to the Imperial County Air 

Pollution Control District (ICAPCD) 

portion of the California State 

Implementation Plan (SIP). This action 

was proposed in the Federal Register on 

January 7, 2013 and concerns local rules 

that regulate inhalable particulate 

matter (PM) emissions from sources of 

fugitive dust such as unpaved roads and 

disturbed soils in open and agricultural 

areas in Imperial County. We are 

approving local rules that regulate these 

emission sources under the Clean Air 

Act (CAA or the Act). 

DATES: This rule will be effective on 

May 22, 2013. 

ADDRESSES: EPA has established docket 

number EPA–R09–OAR–2012–0960 for 

this action. Generally, documents in the 

docket for this action are available 

electronically at http:// 

www.regulations.gov or in hard copy at 

EPA Region IX, 75 Hawthorne Street, 

San Francisco, California 94105–3901. 

While all documents in the docket are 

listed at http://www.regulations.gov, 

some information may be publicly 

available only at the hard copy location 

(e.g., copyrighted material, large maps, 

multi-volume reports), and some may 

not be available in either location (e.g., 

confidential business information 

(CBI)). To inspect the hard copy 

materials, please schedule an 

appointment during normal business 

hours with the contact listed in the FOR

FURTHER INFORMATION CONTACT section. 

FOR FURTHER INFORMATION CONTACT: 

Christine Vineyard, EPA Region IX, 

(415) 947–4125, 

vineyard.christine@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, ‘‘we,’’ ‘‘us’’ 

and ‘‘our’’ refer to EPA. 

Table of Contents 

I. Proposed Action 

II. Public Comments and EPA Responses 

III. EPA Action 

IV. Statutory and Executive Order Reviews 

I. Proposed Action 

On January 7, 2013 (78 FR 922), EPA 

proposed to approve the following rules 

into the California SIP. 

Local agency Rule No. Rule title Adopted Submitted 

ICAPCD ............. 800 General Requirements for Control of Final Particulate Matter (PM10) ........ 10/16/12 11/07/12 

ICAPCD ............. 804 Open Areas .................................................................................................. 10/16/12 11/07/12 

ICAPCD ............. 805 Paved and Unpaved Roads ......................................................................... 10/16/12 11/07/12 

ICAPCD ............. 806 Conservation Management Practices (CMPs) ............................................ 10/16/12 11/07/12 


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1 ‘‘Off-Highway Vehicle Area Best Available 

Control Measures Assessment,’’ prepared for 

ICAPCD by Environ International Corporation, 

October 2012 (2012 BACM assessment). 

2See, e.g., 75 FR 8010 (February 23, 2010). 

3 ‘‘Carryout and Trackout,’’ SJVAPCD Rule 8041, 

Section 4.0, adopted August 19, 2004. 

4 ‘‘Agricultural Sources,’’ SJVAPCD Rule 8081, 

Section 5.4, adopted September 16, 2004. 

5 ‘‘List of Conservation Management Practices,’’ 

May 20, 2004, referenced by ‘‘Conservation 

Management Practices,’’ SJVAPCD Rule 4550, 

adopted August 19, 2004. 

6 ‘‘Draft Final Technical Memorandum, 

Regulation VIII BACM Analysis,’’ Prepared for 

ICAPCD by Environ International Corp, October 

2005 (2005 BACM Analysis), Appendix C, pg. 

C–19. 

7 Ibid. 

8See, e.g., 75 FR 8010 (February 23, 2010). 

We proposed to approve these rules 

because we determined that they 

complied with the relevant CAA 

requirements. Our proposed action 

contains more information on the rules 

and our evaluation. 

II. Public Comments and EPA 

Responses 

EPA’s proposed action provided a 30- 

day public comment period. During this 

period, we received from the following 

parties: 

1. Luis Olmedo, Comite Civico Del 

Valle (Comite), letter dated September 

20, 2012 (resubmitted via email January 

3, 2013). 

2. Lisa Belenky, Center for Biological 

Diversity (CBD), letter dated September 

20, 2012 (resubmitted via email 

February 6, 2013). 

3. Eric Massey, Arizona Department of 

Environmental Quality (ADEQ), letter 

dated February 6, 2013. 

Comment #1—Comite claims that 

ICAPCD Rule 800 does not meet Best 

Available Control Measure (BACM) 

requirements because it does not 

address recreational off-highway vehicle 

(OHV) use on private land. The 

comment mentions OHV requirements 

in Arizona and Nevada that apply on 

both public and private land. The 

comment acknowledges that Rule 804 

would regulate OHV use on private 

land, but asserts that it is not 

enforceable because it does not require 

dust control plans (DCPs). 

Response #1—The private land OHV 

restrictions in ICAPCD Rule 804 are 

more stringent than the public land 

OHV restrictions in Rule 800. Rule 804 

Section E.1 requires all persons with 

jurisdiction over even relatively small 

open areas to maintain a stabilized 

surface at all times and limit visible 

dust emissions (VDE) to 20% opacity. 

This effectively prohibits OHV activity 

on private land because significant OHV 

activity on a dirt lot would generally 

lead to unstabilized surfaces and over 

20% opacity. Additionally, Rule 804 

Section E.2 requires private land owners 

to prevent illegal OHV activity by 

posting signs or installing physical 

barriers. 

Comment #2—Comite claims that 

ICAPCD has not, as directed in EPA’s 

limited disapproval, evaluated ‘‘the 

feasibility and impacts of additional 

restrictions in recreational OHV areas, 

such as closing some of the 250 square 

miles that are open to OHV use * * *.’’ 

Response #2—Such evaluation was 

performed and included in APCD’s 

submittal of the Regulation VIII SIP 

revisions.1 Sections 3 and 4 of this 

evaluation list and analyze the 

feasibility and impacts of additional 

OHV restrictions including restrictions 

on OHV locations. Regarding the 

potential to close some of the 250 square 

miles, for example, section 4.1 states 

that, ‘‘BLM and State Parks officials 

believe that further limiting the size of 

OHV areas would have the effect of 

increasing illegal OHV activity on nontravelled lands.’’ 

Comment #3—Comite states that 

ICAPCD Rule 802 does not fulfill BACM 

requirements because it inappropriately 

exempts transportation/hauling of bulk 

material within a facility’s property, 

eviscerating the intent of Rule 802. The 

comment notes that South Coast Air 

Quality Management District 

(SCAQMD) Rule 403(g) does not include 

this exemption. 

Response #3—We agree that Imperial 

Rule 802 would be improved by 

removing the exemption for 

transportation/hauling of bulk material 

within a facility’s property similar to 

SCAQMD 403(g). However, bulk 

material, the subject of Imperial Rule 

802, has not been identified as a 

significant PM10 source subject to 

BACM requirements.2 As a result, 

ICAPCD is not required to improve Rule 

802 in this way at this time, ICAPCD did 

not revise and resubmit Rule 802, and 

EPA is not acting on Rule 802 at this 

time. 

Comment #4—Comite states that 

ICAPCD Rule 803 does not fulfill BACM 

requirements because it inappropriately 

exempts agricultural roads from trackout requirements unlike other areas in 

California including San Joaquin Valley 

Air Pollution Control District 

(SJVAPCD). 

Response #4—The comment does not 

identify and we are not aware of any 

specific SJVAPCD track-out 

requirements that are more stringent 

than ICAPCD requirements. SJVAPCD’s 

general carryout and track-out rule 

specifically exempts agricultural 

operations.3 SJVAPCD’s agricultural 

dust rule simply requires that 

agricultural roads comply with 

California State law regarding trackout,4 to which Imperial County sources 

are also subject. In addition, ICAPCD 

Rule 806 includes track-out BACM for 

agricultural operations comparable to 

those in SJVAPCD’s analogous 

conservation management practices 

(CMP) requirements.5

Comment #5—Comite states that 

ICAPCD Rule 804 does not fulfill BACM 

requirements because it imposes 

minimal controls on disturbed open lots 

above certain sizes with no regard as to 

what activities, beyond OHV, are 

occurring. The comment claims that 

SCAQMD Rule 403, in contrast, controls 

lots of any size with disturbed surface 

area and contains additional control, 

permitting and reporting requirements 

on other types of activities, including 

construction and confined animal 

facilities (CAF). 

Response #5—ICAPCD estimates that 

over 99.5% of open areas potentially 

affected by ICAPCD Rule 804 are in 

parcels of 3 acres or greater.6 We expect, 

therefore, that lowering this threshold 

would have very limited emission 

impact while being relatively expensive 

by applying to the smallest sources. 

ICAPCD also notes that SJVAPCD Rule 

8051 has a similar 3 acre threshold 

previously approved as BACM and 

projected to capture 98% of parcel 

acreage in SJVAPCD.7 ICAPCD Rule 804 

contains relatively stringent enforceable 

requirements common to other 

approved dust regulations found 

elsewhere (e.g., SJVAPCD 8051). 

Sources must maintain records 

demonstrating that they have limited 

opacity to 20% by one of three defined 

soil stabilization techniques. The 

comment notes that SCAQMD Rule 403 

imposes additional requirements on 

other activities, including construction 

and CAFs. However, ICAPCD provides 

additional requirements for these 

activities in other regulations (ICAPCD 

Rule 801, Construction and 

Earthmoving Activities, and Rule 217, 

Large Confined Animal Facilities 

Permits Required) which are not subject 

of today’s action. In addition, neither 

construction nor CAFs have been 

identified as significant PM10 sources 

subject to BACM requirements.8 As a 

result, ICAPCD is not required to apply 

BACM to these sources at this time and 

EPA is not acting on ICAPCD Rules 217 

or 801. However, we agree that 

SCAQMD Rule 403 does impose some 

additional specific requirements that 


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9 2005 BACM analysis, appendix B, pg. B–6. 

10 75 FR 39367 (July 8, 2010). 

11SJVAPCD Rule 4550 requires opacity limits and 

stabilization on unpaved roads when daily vehicle 

trips (VDT) are 75 or more or 25 VDT for 3-axle 

vehicles, whereas ICAPCD Rule 806 contains these 

requirements for 50 or more VDT or 20 VDT for 

3-axle vehicles. 

12 Ibid. 13Letter from William Brunet (Imperial County 

Department of Public Works) to Brad Poiriez 

(ICAPCD), May 11, 2012, included as part of 

comment #4 in CARB’s 2012 Regulation VIII SIP 

submittal to EPA. 14 ‘‘2009 Imperial County State Implementation 

Plan for Particulate Matter Less Than 10 Microns 

in Aerodynamic Diameter, Final,’’ adopted by 

ICAPCD Governing Board on August 11, 2009, e.g., 

section 4.2.5, pg. 4–7. 

15See, e.g., 75 FR 8010 (February 23, 2010). 

16 75 FR 39367 (July 8, 2010). 

17 ‘‘Technical Support Document for EPA’s 

Proposed Rulemaking on Revisions to the California 

State Implementation Plan as submitted by the State 

of California, for the Imperial County Air Pollution 

Control District,’’ U.S. EPA, Region 9 Air Division, 

February 2010, (2010 TSD) pg. 9. 

18See Latino Issues Forum v. EPA, 558 F.3d 936, 

949 (9th Cir. 2009). 

ICAPCD should consider if additional 

emission reductions are needed in the 

future. We also note that ICAPCD 

previously considered additional 

specificity such as that included in 

SCAQMD Rule 403, but determined it 

was not more stringent than ICAPCD 

Regulation VIII.9

Comment #6—Comite asserts that 

ICAPCD Rule 805 does not fulfill BACM 

requirements because it inappropriately 

exempts agricultural roads, and 

regulates them under less stringent 

requirements in ICAPCD Rule 806. This 

exemption is contrary to EPA’s earlier 

recommendations that, ‘‘ICAPCD must 

remove the exemption in Rule 805 

Section D.2 or demonstrate how BACM 

is met in Imperial County for farm roads 

and traffic areas that are subject to less 

stringent requirements than other roads 

and traffic areas in the County and farm 

roads and traffic areas in other areas.’’ 

The comment mentions, in contrast, 

SJVAPCD requirements. 

Response #6—The comment is correct 

that EPA previously identified the 

exemption in ICAPCD Rule 805 Section 

D.2 as a rule deficiency, and ICAPCD 

has not removed this exemption from 

Rule 805.10 However, ICAPCD has 

addressed the substance of this 

deficiency by establishing appropriate 

opacity limits and stabilization 

requirements for agricultural roads, in 

addition to CMP requirements, in Rule 

806, particularly in Sections E.3 and 

E.4. These requirements are analogous 

to, and more stringent than,11 analogous 

requirements in SJVAPCD. See also 

Response #11 below. 

Comment #7—Comite states that 

ICAPCD Rule 805 Section E.7 does not 

fulfill BACM requirements because it 

fails to enforceably require compliance 

with road paving requirements. The 

comment states that this lack of 

enforceability is a particular concern 

because EPA has stated that Imperial 

County must expedite these road paving 

requirements or, ‘‘demonstrate good 

faith efforts to increase funding and 

priority of road stabilization projects 

consistent with national guidance.’’ 

Response #7—EPA previously 

identified ICAPCD Rule 805 Section E.7 

as deficient because it was not clear that 

the County was required to implement 

(and not just submit) a stabilization 

plan; stabilize different unpaved roads 

each year; and maintain all stabilized 

roads.12 Adopted and submitted 

revisions to ICAPCD Rule 805 Sections 

E.7.b and c explicitly and adequately 

address these concerns. For example, 

Section E.7.b was revised to explicitly 

require plan compliance. In addition, 

ICAPCD adequately demonstrated ‘‘good 

faith efforts to increase funding and 

priority of road stabilization projects,’’ 

by correspondence from the County 

Public Works Department explaining 

budget efforts 13 along with information 

provided in ICAPCD’s 2009 PM10 SIP.14

We assume this addresses the concerns 

of the comment as we are not aware of 

any other enforcement concerns with 

Rule 805 Section E.7. 

Comment #8—Comite asserts that 

ICAPCD Rule 805 does not fulfill BACM 

requirements because it does not impose 

sufficiently stringent control measures. 

Specifically, the comment notes that 

while SCAQMD Rule 403 and Imperial 

Rule 805 Section E both impose controls 

based on the type of road, SCAQMD 

Rule 403 also requires additional 

measures for roads used for construction 

activity or large operations. 

Response #8—SCAQMD Rule 403 

contains few requirements specific to 

roads used at construction activity or 

large operations and it is not clear 

which requirements are subject of this 

comment. We note the following 

specific requirements in Rule 403 Table 

1 regarding construction: Section 15–1, 

stabilize all off-road traffic and parking 

areas; section 15–2, stabilize all haul 

routes; and section 15–3, direct 

construction traffic over established 

haul routes. Similarly we note in Rule 

403 Table 2 regarding large operations: 

Section 4a, water all roads used for any 

vehicular traffic at least once per every 

two hours of active operations; or 

section 4b, water all roads used for any 

vehicular traffic once daily and restrict 

vehicle speeds to 15 miles per hour; or 

section 4c, apply a chemical stabilizer to 

all unpaved road surfaces in sufficient 

quantity and frequency to maintain a 

stabilized surface. We do not see a 

direct analog to section 15–3 in ICAPCD 

Rules 801 or 805, although we would 

not expect significant emission impacts 

partly because construction sites are 

incentivized to minimize the active 

roads requiring stabilization. The 

comment has not provided and we have 

no evidence that the other SCAQMD 

requirements listed above are more 

stringent than the road stabilization 

requirements in ICAPCD Rules 801 and 

805. We also note that construction has 

not been identified as a significant PM10

source subject to BACM requirements in 

ICAPCD.15 As a result, ICAPCD is not 

required to submit Rule 801 at this time 

and EPA is not acting on Rule 801 in 

this action. 

Comment #9—Comite states that 

ICAPCD Rule 806 does not fulfill BACM 

requirements and is rendered 

unenforceable because it lacks a CMP 

application submittal and review 

process, and requires only that 

agricultural operators maintain a CMP 

plan and records to confirm 

implementation. The comment asserts 

(and references Latino Issues Forum v. 

EPA and EPA’s 2010 action on Rule 806 

for this assertion) that BACM requires 

that Rule 806 maintain an application 

submittal and review process such as 

contained in SJVAPCD Rule 4550 and 

Great Basin Unified Air Pollution 

Control District (GBUAPCD) Rule 502. 

Response #9—EPA’s 2010 limited 

approval/disapproval of Regulation VIII 

notes that the CMPs, ‘‘are broadly 

defined and there is no other 

mechanism in the rule to ensure 

specificity.’’ 16 As suggested here and 

made clearer in EPA’s TSD supporting 

our 2010 proposed action,17 the 

deficiency in the rule is the lack of 

specificity in defining the CMPs. The 

most direct way to address this is to 

more specifically define the CMPs. 

Alternatively, this deficiency could be 

addressed by adding a CMP application 

submittal and approval process, such as 

contained in SJVAPCD Rule 4550.18

ICAPCD has selected the former 

approach in revising ICAPCD Rule 806, 

and has adequately addressed this rule 

deficiency by extensively clarifying and 

strengthening numerous CMP 

definitions and related text in Rule 806. 

In doing so, ICAPCD has incorporated 

sufficient clarity and specificity directly 

into the CMP definitions and 

requirements so that CMP 

implementation and enforceability at a 

BACM level is clear to all parties. For 

example, the definition of mulching in 

Rule 806 Section C.30 was revised from: 

‘‘Applying or leaving plant residue or 


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23680 Federal Register / Vol. 78, No. 77 / Monday, April 22, 2013 / Rules and Regulations 

19 ‘‘Technical Support Document for EPA’s Notice 

of Proposed Rulemaking on Revisions to the 

California State Implementation Plan as submitted 

by the State of California, for the Imperial County 

Air Pollution Control District,’’ U.S. EPA, Region 9 

Air Division, December 2012, (2012 TSD) pg. 8. 

20 2010 TSD, pg 12. 

21We note that the commenter lists the general 

requirements in the SCAQMD rule but does not 

provide any comparison or analysis of the two 

programs. 

other material to soil surface. It reduces 

entrainment of PM due to winds as well 

as reduces weed competition thereby 

reducing tillage passes and 

compaction.’’ The new text reads: 

‘‘Reducing PM10 emissions and wind 

erosion and preserving soil moisture by 

uniformly applying a protective layer of 

plant residue or other material to a soil 

surface prior to disturbing the site to 

reduce soil movement. Mulching 

material shall be evenly applied, and if 

necessary, anchored to the soil. Mulch 

should achieve a minimum 70% cover, 

and a minimum of 2 inch height above 

the surface. Inorganic material used for 

mulching should consist of pieces of .75 

to 2 inches in diameter.’’ 19

Comment #10 (p.8)—Comite notes 

that ICAPCD Rule 806 only applies to 

farms above 40 acres, while SCAQMD 

and Maricopa’s rules apply to farms 

above 10 acres, and Comite claims that 

ICAPCD’s BACM analysis does not 

address whether lowering Rule 806’s 

threshold could obtain further emission 

reductions that are significant and 

economically feasible. 

Response #10—It is standard practice 

for air pollution regulations to exempt 

small sources which contribute 

relatively few emissions and are the 

least cost-effective to control. ICAPCD’s 

2009 PM10 SIP estimates that Rule 806’s 

40 acre threshold captures 97% of total 

emissions,20 suggesting that there are no 

further emission reductions that are 

significant and economically feasible. 

While SCAQMD and Maricopa have 

lower applicability thresholds than 

ICAPCD, rules approved as BACM in 

other areas have higher thresholds (e.g., 

SJVAPCD’s is 100 acres). We also note 

that this threshold remains unchanged 

from the previous version of ICAPCD 

Rule 806, and no comments were 

provided when EPA acted on it in 2010. 

Comment #11—Comite claims that 

ICAPCD Rule 806 imposes insufficient 

controls on unpaved farm roads 

compared to Rule 805 requirements for 

Imperial non-farm roads and other area 

requirements for farm roads. As an 

example, the comment notes that 

SJVAPCD requires farm roads to meet 

control measures required for 

agricultural operations in addition to 

general requirements that apply to all 

other roads. 

Response #11—We agree that this was 

a deficiency of the previous version of 

ICAPCD Regulation VIII. However, 

ICAPCD has revised Rule 806 Sections 

D.2, D.3, E.3 and E.4 to specifically and 

adequately address this issue. Revised 

Section E.3, for instance, now requires 

stabilization of agricultural unpaved 

roads with 50 or more vehicle daily 

trips (VDT), similar to that required of 

non-agricultural roads with 50 or more 

VDT in ICAPCD Rule 805 Section E.2., 

and of all unpaved roads with 75 or 

more VDT subject to SJVAPCD Rule 

8081 Section 5.2. See also Response #6 

above. 

Comment #12—Comite asserts that 

ICAPCD Rule 806’s windblown dust 

controls are inadequate and generally 

describes the requirements in SCAQMD 

Rule 403’s Agricultural Handbook. The 

comment states that SCAQMD requires 

cessation of soil preparation and 

maintenance activities when winds 

exceed 25 mph, as well as 

implementation of one of four specific 

practices to reduce windblown dust 

from actively disturbed fields and three 

of nine specific practices to reduce 

windblown dust from inactive (fallow) 

fields. 

Response #12—SCAQMD’s 

Agricultural Handbook and Imperial 

Rule 806 are structured somewhat 

differently, making a direct comparison 

between the two programs difficult.21

For example, SCAQMD does not 

specifically refer to the prohibition on 

tilling or mulching when wind speeds 

exceed 25 mph as a ‘‘windblown dust 

control,’’ whereas ICAPCD Rule 806 

includes specific provisions, E.6.1 and 

2, as ‘‘windblown dust controls.’’ 

Nevertheless, we note that the SCAQMD 

prohibition applies only when winds 

exceed 25 mph. In comparison, ICAPCD 

requires operators to comply with the 

windblown dust controls specified in 

E.6.1. (for active cultivation) and E.6.2. 

(for fallow fields), regardless of wind 

speed. The commenter provides no 

evidence for a finding that the SCAQMD 

prohibition is more effective than 

ICAPCD’s more generally applicable 

requirements. 

The comment also states that 

SCAQMD requires operators to comply 

with ‘‘one of four specific practices to 

reduce windblown dust from actively 

disturbed fields.’’ Again, because the 

SCAQMD rule does not specifically 

refer to ‘‘windblown dust,’’ it is difficult 

to determine whether SCAQMD 

distinguishes between regulating 

‘‘windblown dust’’ and regulating 

fugitive dust directly emitted during 

tillage, cultivation, and mulching 

operations. Nevertheless, we note that 

the SCAQMD rule requires selection 

and implementation of one option for 

‘‘active lands,’’ whereas ICAPCD 

regulates direct emissions of fugitive 

dust by requiring selection and 

implementation of three options, one 

each from three separate categories of 

activities: (1) Land preparation (E.1.); (2) 

harvest (E.2.); and (3) cropland-other 

(E.5.). 

For inactive operations, SCAQMD 

requires operators to select and comply 

with three of eight specified practices; 

we believe the comparable provisions 

for ICAPCD are found at section E.6.1. 

of Rule 806, in which ICAPCD requires 

selection and compliance with one of 

eight specified practices. We note that 

the practices specified in the SCAQMD 

rule for inactive lands are essentially 

identical to the practices specified in 

E.6.2. of the ICAPCD rule for fallow 

lands. 

Although it appears that SCAQMD 

requires more measures for inactive 

lands than ICAPCD requires for fallow 

lands, the commenter does not 

acknowledge other ways in which the 

ICAPCD rule is more stringent than the 

SCAQMD program. Overall, both the 

SCAQMD and ICAPCD programs require 

agricultural operations to comply with 

five options each: SCAQMD requires 

compliance with the 25 mph 

prohibition, one option for active 

cultivation and three options for 

inactive lands; ICAPCD requires 

selection and implementation of one 

option to control windblown dust on 

actively cultivated lands, three 

additional options for actively 

cultivated lands, and one option for 

fallow lands. The commenter provided 

no information to support a finding that 

SCAQMD’s approach of imposing more 

requirements on inactive lands is more 

stringent or more effective at controlling 

fugitive dust than ICAPCD’s approach of 

imposing more requirements on actively 

cultivated lands. As we have noted 

previously, regulations for agricultural 

sources must be sufficiently flexible to 

account for the wide range of factors 

such as crop type, herd size, equipment 

type, soil type, weather and market 

conditions, economic circumstances 

and facility size. In addition, there is a 

limited amount of technical information 

regarding the cost effectiveness of 

available control measures for 

agricultural operations. See 71 FR 7684 

(February 14, 2006). As a result, it is 

reasonable to expect that BACM 

measures for this activity would vary 

depending on the agricultural practices 

in different areas and, in fact, Maricopa, 

South Coast, and San Joaquin 

agricultural CMP rules have all been 


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Federal Register / Vol. 78, No. 77 / Monday, April 22, 2013 / Rules and Regulations 23681 

22See, e.g., 71 FR 7684 and 7686 (February 14, 

2006). 

23 78 FR 894 (January 7, 2013). 

approved as BACM despite differences 

similar to that identified in the 

comment. Finally, we note that the 

Imperial Rule 806 is based on and is at 

least as stringent as SJVUAPCD Rule 

4550, which EPA approved as having 

BACM-level controls. Id. 

Comment #13—Comite states that 

ICAPCD Rule 802 Section D.1 and Rule 

806 Section D.4 provide ICAPCD with 

excessive discretion to alter SIPapproved control measures, particularly 

with regard to deviations from required 

control measures (Rule 802) and 

development of alternative control 

measures (Rule 806). The comment 

notes that EPA’s 2010 action on 

Regulation VIII specifically identified 

the discretion in Rule 802 Section D.1 

as a deficiency. 

Response #13—We agree that Rule 

802 Section D.1 would be improved by 

removing the discretion described in the 

comment. However, bulk material, the 

subject of Imperial Rule 802, has not 

been identified as a significant PM10

source subject to BACM requirements. 

As a result, ICAPCD is not required to 

improve Rule 802 in this way at this 

time, ICAPCD did not revise and 

resubmit Rule 802, and EPA is not 

acting on Rule 802 at this time. See also 

Response #3 above. With regard to the 

commenter’s reference to Rule 806, 

Section D.4, we assume the comment 

intended to refer to Rule 806 Section 

D.6 which contains discretion. This 

discretion is similar to discretion 

approved in SJVAPCD Rule 4550 

Section 6.2.3.2, and has been restricted 

by requiring alternative CMPs in 

ICAPCD to be at least equivalent to the 

most effective CMPs already available. 

While such discretion may not be 

appropriate for more traditional 

stationary sources, it is reasonable at 

this time given the variability and 

limited regulatory history of the affected 

sources.22 As ICAPCD gains experience 

regulating this industry, it may be 

appropriate to reduce this discretion in 

the future. 

Comment #14—Comite asserts that 

EPA cannot stay CAA sanctions based 

on a proposed approval of revised 

Regulation VIII, but only upon final and 

full approval. 

Response #14—As explained in our 

Interim Final Rule, we invoked the good 

cause exception under the APA as the 

basis for not providing public comment 

before the action took effect.23 Our 

review of the State’s submittal indicated 

that it was more likely than not that the 

State had submitted a revision to the SIP 

that addressed the issues we identified 

in our earlier action that started the 

sanctions clocks. We concluded that it 

was therefore not in the public interest 

to impose sanctions. Our use of the good 

cause exception thus relieved 

restrictions that were unnecessary 

because the State had already taken the 

steps it needed to take to submit an 

approvable rule. The only action that 

remained to be taken was EPA’s action 

to complete our rulemaking, including 

reviewing and responding to public 

comments on our proposed action. As 

explained in our Interim Final Rule, we 

could have disapproved the rule, if 

justified by public comments. However, 

we are now finalizing our action with an 

approval of the State’s submittal, which 

further supports the reasonableness of 

our use of the good cause exception to 

avoid needless hardship on entities and 

individuals in the Imperial Valley. 

Comment #15—CBD claims that 

proposed rule revisions are inadequate 

to address the serious and ongoing PM10

air pollution concerns in Imperial 

County, particularly regarding 

emissions due to OHV use on public 

lands. The comment asks EPA to reject 

the rule revisions because they will not 

adequately improve air quality as 

required by law. 

Response #15—ICAPCD revised and 

resubmitted Regulation VIII primarily to 

address the CAA obligation for PM10

BACM, and EPA is similarly evaluating 

the rules primarily to ensure that they 

fulfill BACM. The broader air pollution 

issues raised by this comment, as to 

whether the rules are sufficient to 

address Imperial’s overall PM10

problem, are appropriately addressed 

separately through the CAA obligations 

for ICAPCD and CARB to develop a 

PM10 attainment demonstration. 

Comment #16—CBD states that the 

proposed rule revisions fail to provide 

sufficient guidance, limitations or 

enforcement measures to ensure that the 

OHV DCPs are adequate and fully 

implemented. The comment asserts that 

the revised rule relies on good faith 

implementation by the Bureau of Land 

Management (BLM) and California 

Department of Parks and Recreation 

(DPR), which is not warranted by past 

practice. 

Response #16—ICAPCD has 

significantly revised the OHV DCP 

requirements in ICAPCD Rule 800 

Sections D.3 and F to make them more 

stringent and enforceable. For example, 

Section F.5.b.2 now requires maps 

showing OHV areas, Section F.5.c now 

explicitly requires stabilization of hightraffic roads and traffic areas during 

OHV events, Section F.5.d now requires 

description of all monitoring and 

corrective action to reduce emissions 

during OHV events, and Section F.7 

establishes additional requirements for 

new OHV areas. While we agree that 

some of the OHV requirements are not 

as specific and prescriptive as many 

requirements for traditional stationary 

sources (e.g., facility X must emit under 

Y pounds/day), they are adequately 

enforceable and appropriate given the 

variability (e.g., the popularity and thus 

emissions of specific OHV areas change 

over time) and limited regulatory 

history of this activity. We also believe 

these controls are sufficiently stringent 

to fulfill the CAA BACM requirements 

as demonstrated by the 2012 BACM 

assessment. See also Response #2 above. 

However, we encourage ICAPCD to 

consider further controls in OHV areas 

if additional emission reductions are 

needed in the future to meet federal 

and/or State ambient air quality 

standards. 

Comment #17—CBD states that BLM 

recently issued a proposed Recreational 

Area Management Plan (RAMP) and 

Final Environmental Impact Statement 

(FEIS) proposing to increase the area in 

Imperial open to OHV use by 40,000 

acres, further increasing PM10

emissions. The comment notes that EPA 

had previously expressed concerns 

about potential increased air quality 

impacts of the BLM’s preferred 

alternative in the FEIS and that BLM 

largely ignored EPA’s comments. The 

comment asserts that additional 

shortcomings of the FEIS are further 

evidence that BLM cannot be relied on 

for good-faith efforts to comply with 

ICAPCD Rule 800. 

Response #17—EPA’s previous 

comments regarding BLM’s RAMP and 

FEIS are independent of today’s action 

on revisions to ICAPCD’s Regulation 

VIII. Revisions to Rule 800 Section F.7 

establish additional requirements for 

new OHV areas, but do not prohibit 

increased OHV areas and associated 

PM10 emissions. ICAPCD Regulation 

VIII’s OHV requirements are adequately 

enforceable and do not rely solely on 

good-faith efforts at compliance. See 

also Response #16 above. 

Comment #18—ADEQ recommends 

that EPA continue to evaluate BACM on 

a case-by-case basis, considering the 

relative contributions of source 

categories such as OHVs, to ensure that 

the most cost-effective control measures 

appropriate for contributing 

anthropogenic sources in each planning 

area are adopted and implemented. 

Response #18—EPA agrees that local 

conditions should be considered as part 

of a BACM analysis and ICAPCD has 

included such information in its BACM 

analysis. For example, EPA agrees that 


tkelley on DSK3SPTVN1PROD with RULES
23682 Federal Register / Vol. 78, No. 77 / Monday, April 22, 2013 / Rules and Regulations 

24 2012 BACM Assessment, pg. 8. 

ICAPCD has adequately demonstrated 

BACM for OHV activity based in part on 

the 2012 BACM assessment which 

includes discussion of local conditions 

(e.g., less than 1% of open lands are 

urban vacant areas in Imperial County 

compared to 52% of Maricopa’s 

nonattainment area open lands.) 24

Comment #19—ADEQ does not 

support any presumption that inclusion 

of prerequisites similar to those in 

ICAPCD Rule 801 Section D are 

necessary to determine that a rule is 

BACM. Rather, the comment encourages 

EPA to continue reviewing each rule in 

the context of each area’s overall air 

pollution control strategy when making 

a determination that a rule fulfills 

BACM or most stringent control 

measure requirements. 

Response #19—As mentioned in 

Response #18 above, we agree that local 

conditions should be considered as part 

of a BACM analysis. We also believe 

that the existence of requirements in 

other areas should be considered as part 

of a BACM analysis. For example, it 

would be relevant for a BACM analysis 

for OHV in Arizona to consider both 

ICAPCD Rule 801 and any local 

conditions specific to Arizona. 

However, today’s action regards 

ICAPCD Rules 800, 804, 805 and 806, 

and nothing in the comment suggests 

any change to our proposed approval. 

III. EPA Action 

No comments changed our assessment 

of the rule as described in our proposed 

action. Therefore, as authorized in 

section 110(k)(3) of the Act, EPA is fully 

approving these rules into the California 

SIP. This action permanently terminates 

all sanctions and FIP implications 

associated with the July 8, 2010 final 

action. 

EPA’s preliminary view is that the 

Regulation VIII rules as revised in 

October 2012 constitute reasonable 

control of the sources covered by 

Regulation VIII for the purpose of 

evaluating whether an exceedance of the 

PM10 NAAQS is an exceptional event 

pursuant to the exceptional events rule, 

including reasonable and appropriate 

control measures on significant 

contributing anthropogenic sources. 

This statement does not extend to 

exceedances of NAAQS other than the 

PM10 NAAQS, or to events that differ 

significantly in terms of meteorology, 

sources, or conditions from the events 

that were at issue in EPA’s July 2010 

final action and associated litigation. 

EPA is not making any determinations 

at this time with respect to any specific 

PM10 exceedances. 

IV. Statutory and Executive Order 

Reviews 

Under the Clean Air Act, the 

Administrator is required to approve a 

SIP submission that complies with the 

provisions of the Act and applicable 

Federal regulations. 42 U.S.C. 7410(k); 

40 CFR 52.02(a). Thus, in reviewing SIP 

submissions, EPA’s role is to approve 

State choices, provided that they meet 

the criteria of the Clean Air Act. 

Accordingly, this action merely 

approves State law as meeting Federal 

requirements and does not impose 

additional requirements beyond those 

imposed by State law. For that reason, 

this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the Clean Air Act; 

and 

• does not provide EPA with the 

discretionary authority to address 

disproportionate human health or 

environmental effects with practical, 

appropriate, and legally permissible 

methods under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the State, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by June 21, 2013. 

Filing a petition for reconsideration by 

the Administrator of this final rule does 

not affect the finality of this action for 

the purposes of judicial review nor does 

it extend the time within which a 

petition for judicial review may be filed, 

and shall not postpone the effectiveness 

of such rule or action. This action may 

not be challenged later in proceedings to 

enforce its requirements (see section 

307(b)(2)). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Particulate matter, Reporting and 

recordkeeping requirements. 

Dated: March 27, 2013. 

Alexis Strauss, 

Acting Regional Administrator, Region IX. 

Part 52, Chapter I, Title 40 of the Code 

of Federal Regulations is amended as 

follows: 

PART 52 [AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart F—California 

■ 2. Section 52.220 is amended by 

adding paragraphs (c)(424) to read as 

follows: 

§ 52.220 Identification of plan. 

* * * * * 

(c) * * * 

(424) New and amended regulations 

for the following APCDs were submitted 


tkelley on DSK3SPTVN1PROD with RULES
Federal Register / Vol. 78, No. 77 / Monday, April 22, 2013 / Rules and Regulations 23683 

on November 7, 2012 by the Governor’s 

designee. 

(i) Incorporation by Reference 

(A) Imperial County Air Pollution 

Control District 

(1) Rule 800, ‘‘General Requirements 

for Control of Fine Particulate Matter 

PM10,’’ amended on October 16, 2012. 

[2] Rule 804, ‘‘Open Areas,’’ amended 

on October 16, 2012. 

[3] Rule 805, ‘‘Paved and Unpaved 

Roads,’’ amended on October 16, 2012. 

[4] Rule 806, ‘‘Conservation 

Management Practices (CMPs),’’ 

amended on October 16, 2012. 

[FR Doc. 2013–09307 Filed 4–19–13; 8:45 am] 

BILLING CODE P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 120918468–3111–02] 

RIN 0648–XC605 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Pacific Cod by 

Catcher/Processors Using Trawl Gear 

in the Central Regulatory Area of the 

Gulf of Alaska 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; closure. 

SUMMARY: NMFS is prohibiting directed 

fishing for Pacific cod by catcher/ 

processors (C/Ps) using trawl gear in the 

Central Regulatory Area of the Gulf of 

Alaska (GOA). This action is necessary 

to prevent exceeding the A season 

allowance of the 2013 Pacific cod total 

allowable catch apportioned to C/Ps 

using trawl gear in the Central 

Regulatory Area of the GOA. 

DATES: Effective 1200 hours, Alaska 

local time (A.l.t.), April 17, 2013, 

through 1200 hours, A.l.t., September 1, 

2013. 

FOR FURTHER INFORMATION CONTACT: 

Obren Davis, 907–586–7228. 

SUPPLEMENTARY INFORMATION: NMFS 

manages the groundfish fishery in the 

GOA exclusive economic zone 

according to the Fishery Management 

Plan for Groundfish of the Gulf of 

Alaska (FMP) prepared by the North 

Pacific Fishery Management Council 

under authority of the MagnusonStevens Fishery Conservation and 

Management Act. Regulations governing 

fishing by U.S. vessels in accordance 

with the FMP appear at subpart H of 50 

CFR part 600 and 50 CFR part 679. 

Regulations governing sideboard 

protections for GOA groundfish 

fisheries appear at subpart B of 50 CFR 

part 680. 

The A season allowance of the 2013 

Pacific cod total allowable catch (TAC) 

apportioned to C/Ps using trawl gear in 

the Central Regulatory Area of the GOA 

is 726 metric tons (mt), as established by 

the final 2013 and 2014 harvest 

specifications for groundfish of the GOA 

(78 FR 13162, February 26, 2013). 

In accordance with § 679.20(d)(1)(i), 

the Administrator, Alaska Region, 

NMFS (Regional Administrator) has 

determined that the A season allowance 

of the 2013 Pacific cod TAC 

apportioned to C/Ps using trawl gear in 

the Central Regulatory Area of the GOA 

will soon be reached. Therefore, the 

Regional Administrator is establishing a 

directed fishing allowance of 526 mt, 

and is setting aside the remaining 200 

mt as bycatch to support other 

anticipated groundfish fisheries. In 

accordance with § 679.20(d)(1)(iii), the 

Regional Administrator finds that this 

directed fishing allowance has been 

reached. Consequently, NMFS is 

prohibiting directed fishing for Pacific 

cod by C/Ps using trawl gear in the 

Central Regulatory Area of the GOA. 

After the effective date of this closure 

the maximum retainable amounts at 

§ 679.20(e) and (f) apply at any time 

during a trip. 

Classification 

This action responds to the best 

available information recently obtained 

from the fishery. The Assistant 

Administrator for Fisheries, NOAA 

(AA), finds good cause to waive the 

requirement to provide prior notice and 

opportunity for public comment 

pursuant to the authority set forth at 5 

U.S.C. 553(b)(B) as such requirement is 

impracticable and contrary to the public 

interest. This requirement is 

impracticable and contrary to the public 

interest as it would prevent NMFS from 

responding to the most recent fisheries 

data in a timely fashion and would 

delay the directed fishing closure of 

Pacific cod for C/Ps using trawl gear in 

the Central Regulatory Area of the GOA. 

NMFS was unable to publish a notice 

providing time for public comment 

because the most recent, relevant data 

only became available as of April 16, 

2013. 

The AA also finds good cause to 

waive the 30-day delay in the effective 

date of this action under 5 U.S.C. 

553(d)(3). This finding is based upon 

the reasons provided above for waiver of 

prior notice and opportunity for public 

comment. 

This action is required by § 679.20 

and is exempt from review under 

Executive Order 12866. 

Authority: 16 U.S.C. 1801 et seq. 

Dated: April 17, 2013. 

Kara Meckley, 

Acting Deputy Director, Office of Sustainable 

Fisheries, National Marine Fisheries Service. 

[FR Doc. 2013–09389 Filed 4–17–13; 4:15 pm] 

BILLING CODE 3510–22–P 


tkelley on DSK3SPTVN1PROD with RULES