10220 Federal Register / Vol. 86, No. 32 / Friday, February 19, 2021 / Proposed Rules 

exclusion as an opportunity to evade the 

general mailing ban. If the mailer’s 

claim to the exclusion is not 

appropriately credible or verifiable, then 

that claim may not be sufficient to 

deprive the Postal Service of reasonable 

cause to believe that the item is a 

nonmailable ENDS. Therefore, the 

proposed rule would authorize Postal 

Service personnel, upon reasonable 

cause to believe that a package contains 

cigarettes, smokeless tobacco, or ENDS, 

to treat the package as nonmailable 

unless the customer has affirmatively, 

credibly, and verifiably indicated that 

the relevant contents are, in fact, 

mailable. 

Commenters are invited to offer their 

views on this proposed standard for 

reasonable cause in connection with 

ENDS-type items (or any other tobacco 

products). To the extent that 

commenters might propose alternative 

standards, commenters are advised to 

account specifically for the need to 

prevent abuse of the narrow exclusion 

of therapeutic and tobacco-cessation 

products; the asymmetry between 

mailers’ and the Postal Service’s access 

to information about the FDA-approval 

status and marketing of particular 

products; the Postal Service’s limited 

resources; and its limited legal authority 

to open mailpieces that are sent in 

sealed mail classes without a warrant. 

39 U.S.C. 404(c); 39 CFR 233.3(c)(3)–(4), 

(g)(1)–(2). 

Applicability of Exceptions 

The existing Noncontiguous States, 

Business/Regulatory Purposes, and 

Certain Individuals exceptions appear to 

be articulated in terms that can apply to 

ENDS as well as to cigarettes and 

smokeless tobacco. As such, the 

proposed use of the umbrella term 

‘‘tobacco products’’ in the rules for each 

exception would automatically apply all 

such existing rules to ENDS. 

Commenters are nonetheless invited to 

identify any potential anomalies or 

other problems that this approach might 

create and to recommend solutions for 

such problems. 

The Consumer Testing and Public 

Health exceptions apply only to 

‘‘cigarettes,’’ and not to smokeless 

tobacco. 18 U.S.C. 1716E(b)(5)–(6). As 

noted earlier, the Act technically 

includes ENDS within the relevant 

definition of ‘‘cigarettes.’’ Without more, 

this would ordinarily indicate that these 

exceptions should apply to ENDS as 

well as other forms of ‘‘cigarettes.’’ 

However, 18 U.S.C. 1716E(b)(5)(A)(ii) or 

(C)(ii)(III) confine the exceptions to 

packages containing ‘‘not more than 12 

packs of cigarettes (240 cigarettes).’’ 

Congress did not amend these 

provisions when it included ENDS, 

broadly defined, in the definition of 

‘‘cigarettes,’’ and neither the text of the 

Act nor its legislative history contains 

any guidance as to how these conditions 

should apply to ENDS. 

ENDS are not packaged in such 

standard quantities as traditional 

cigarettes. ENDS rely on devices that 

can be used in an open-ended fashion, 

with potentially limitless quantities of 

liquid filled cartridges, whereas 

traditional cigarettes are self-contained, 

single-use items. Moreover, ENDS filler 

liquids can contain varying quantities of 

nicotine, or even no nicotine, whereas 

cigarettes uniformly contain nicotine. 

As such, it does not appear possible 

even to devise an administrable 

standard of equivalence that would 

allow ‘‘12 packs of cigarettes (240 

cigarettes)’’ to be translated into some 

quantity of ENDS filler liquid, let alone 

ENDS products other than filler liquid. 

Given the Act’s broad definition of 

ENDS and the material differences 

between ENDS products and the types 

of products originally encompassed by 

the Consumer Testing and Public Health 

exceptions, it appears reasonable to 

construe the lack of accommodation for 

ENDS in the relevant statutory text to 

render those exceptions inapplicable to 

ENDS. To the extent that commenters 

believe that the Consumer Testing and 

Public Health exceptions should apply 

to ENDS, commenters are invited to 

recommend alternative standards 

consistent with Congress’s apparent 

intent to limit the quantity of items 

mailed in packages under the 

exceptions. Commenters should explain 

in detail how any proposed alternative 

quantity limits are analogous to or 

otherwise consistent with those in 18 

U.S.C. 1716E(b)(5)(A)(ii) or (C)(ii)(III), or 

why such consistency is not necessary. 

Commenters are also invited to furnish 

any relevant documentation or 

supporting information that may aid the 

Postal Service in evaluating their 

recommendations. 

Effective Date of Eventual Final Rule 

Particularities here merit a brief 

discussion of the timing of the eventual 

final rule, in the interest of providing 

stakeholders with advance information. 

Section 603(a) of the Act requires the 

Postal Service ‘‘promulgate regulations 

to clarify the applicability of the 

prohibition on mailing of cigarettes’’ to 

ENDS not later than 120 days after 

enactment (i.e., April 26, 2021). Section 

603(b) provides that the prohibition will 

apply to mailings of ENDS ‘‘on and 

after’’ the publication date of the final 

rule. In specifying this immediate 

effective date, Congress expressly 

abrogated the standard 30-day notice 

period for a final rule under the 

Administrative Procedure Act (APA), 

which would otherwise apply to 

rulemakings concerning the mailability 

statute here. 5 U.S.C. 553(d), 559; 39 

U.S.C. 3001(m). To the extent that this 

rulemaking concerns not only the 

mailing prohibition referenced in the 

Act, but also the application of 

exemptions from that prohibition, the 

APA permits those aspects of the 

eventual final rule likewise to take effect 

with less than 30 days’ notice (e.g., 

immediately upon publication). 5 U.S.C. 

553(d)(1). 

Joshua J. Hofer, 

Attorney, Ethics and Legal Compliance. 

[FR Doc. 2021–03393 Filed 2–17–21; 11:15 am] 

BILLING CODE 7710–12–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R10–OAR–2019–0599, FRL–10019– 

38–Region 10] 

Air Plan Approval; OR; Smoke 

Management Revision 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: Environmental Protection 

Agency (EPA) is proposing to approve 

Oregon State Implementation Plan (SIP) 

revisions submitted on November 3, 

2014 and September 27, 2019. The 

submitted revisions incorporate by 

reference the most recent updates to 

Oregon’s Smoke Management Plan. EPA 

is acting only on the most recent version 

of such regulations as the previous 

versions are no longer in effect as a 

matter of state law. EPA is also making 

technical corrections related to previous 

approvals of components of Oregon’s 

SIP. EPA is proposing to determine that 

the changes are consistent with Clean 

Air Act requirements. 

DATES: Comments must be received on 

or before March 22, 2021. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R10– 

OAR–2019–0599, at https://

www.regulations.gov. Follow the online 

instructions for submitting comments. 

Once submitted, comments cannot be 

edited or removed from https://

www.regulations.gov. EPA may publish 

any comment received to its public 

docket. Do not electronically submit any 

information you consider to be 

Confidential Business Information (CBI) 

or other information the disclosure of 


tkelley on DSKBCP9HB2PROD with PROPOSALS
Federal Register / Vol. 86, No. 32 / Friday, February 19, 2021 / Proposed Rules 10221 

1On November 22, 1988, (53 FR 47188) EPA 

approved the Oregon Smoke Management Plan at 

Oregon Administrative Rule (OAR) Chapter 629, 

Division 43–043, and the Oregon Department of 

Forestry (ODF) ‘‘Operational Guidance for the 

Oregon Smoke Management Program’’ (Directive 

1–4–1–601), into the Oregon SIP. On November 1, 

2001, (66 FR 55105) EPA approved revisions to the 

Smoke Management Plan at OAR 629–43–043, and 

approved modifications to the ODF directive 

‘‘Operational Guidance for the Oregon Smoke 

Management Program’’ into the Oregon SIP. Oregon 

requested EPA approve further changes to the 

Smoke Management Rule in a December 20, 2010, 

SIP submittal. In the 2010 submittal, OAR 629–048 

(‘‘Smoke Management’’) replaced OAR 629–043 

(‘‘Smoke Management Plan’’). EPA approved the 

2010 submission on August 22, 2012 (77 FR 50611). 

2SSRAs are defined in OAR 629–048–0005(26) as 

areas designated for the highest level of protection 

under the Smoke Management Plan. They are 

designated by the State Board of Forestry, in 

Continued 

which is restricted by statute. 

Multimedia submissions (audio, video, 

etc.) must be accompanied by a written 

comment. The written comment is 

considered the official comment and 

should include discussion of all points 

you wish to make. EPA will generally 

not consider comments or comment 

contents located outside of the primary 

submission (i.e. on the web, cloud, or 

other file sharing system). For 

additional submission methods, the full 

EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

https://www.epa.gov/dockets/ 

commenting-epa-dockets. 

FOR FURTHER INFORMATION CONTACT: 

Randall Ruddick, EPA Region 10, 1200 

Sixth Avenue, Suite 155, Seattle, WA 

98101, at (206) 553–1999, or 

ruddick.randall@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, wherever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, it means 

EPA. 

Table of Contents 

I. Background 

II. Oregon’s Smoke Management Program 

A. 2014 Submittal Summary 

B. 2019 Submittal Summary 

III. Evaluation of Oregon’s SIP Submittals 

IV. Technical Corrections 

V. EPA’s Proposed Action 

VI. Incorporation by Reference 

VII. Statutory and Executive Order Reviews 

I. Background 

Each state has a State Implementation 

Plan (SIP) containing the control 

measures and strategies used to attain 

and maintain the national ambient air 

quality standards (NAAQS) established 

by the Environmental Protection Agency 

(EPA) for the criteria pollutants (carbon 

monoxide, lead, nitrogen dioxide, 

ozone, particulate matter, sulfur 

dioxide). The SIP contains such 

elements as air pollution control 

regulations, emission inventories, 

attainment demonstrations, and 

enforcement mechanisms. Oregon, and 

some other states, have adopted Smoke 

Management Plan SIPs to reduce 

emissions that contribute to visibility 

impairment. Wildfire has had a serious 

impact on Oregon during the past 

decade with many large-scale wildfires 

impacting the summer air quality in 

Oregon. The state anticipates that the 

Oregon Department of Forestry (ODF) 

will increase the use of prescribed fire 

to minimize the impacts of wildfire on 

air quality in response to this trend. 

Through the SMP, Oregon carefully 

manages prescribed fires to minimize 

smoke impacts to populated areas while 

maximizing the use of prescribed fire as 

a forest management tool. 

EPA first approved Oregon’s Smoke 

Management Plan and associated rules 

into the SIP in 1988 and has approved 

numerous revisions to the Plan over 

time.1 Oregon requested additional 

revisions to smoke management rules 

contained in OAR Chapter 629–048, and 

ODF Directive 1–4–1–601 in a SIP 

submittal dated October 31, 2014 

(received November 3, 2014, hereafter 

‘‘2014 Submittal’’). Before EPA took 

action on the 2014 Submittal, Oregon 

began additional rulemaking to revise 

portions of its smoke management rules. 

Oregon submitted those additional 

revisions to OAR 629–048 for SIP 

approval on September 24, 2019 

(hereafter ‘‘2019 Submittal’’). The 2019 

Submittal includes revisions to 

regulations in Oregon’s 2014 Submittal 

on which the EPA has not yet taken 

action. In this action, EPA is proposing 

to approve only the most recent 

submitted version of such regulations 

because the previous versions of the 

regulations included in the 2014 

Submittal are no longer in effect as a 

matter of state law. 

II. Oregon’s Smoke Management 

Program 

The ODF oversees prescribed forest 

burning in Oregon forest lands to 

decrease forest fuels and debris that 

pose increased fire risk, restore forest 

health and reduce the potential for 

major wildfires. ORS 477.013 directs 

ODF to develop and implement a Smoke 

Management Plan for prescribed forestry 

burning. To carry out this directive, 

ODF developed a Smoke Management 

Plan, which currently consists of rules 

under OAR 629–048 (previously under 

OAR 629–043) and the Operational 

Guidance for the Oregon Smoke 

Management Program in Directive 1–4– 

1–601. Oregon’s Smoke Management 

Plan applies to prescribed burning on 

federal, state and private forestland. The 

objectives of the Oregon Smoke 

Management Plan (629–048–0010(4)) 

are to: 

(a) Minimize smoke emissions resulting 

from prescribed burning as described by ORS 

477.552; 

(b) Provide maximum opportunity for 

essential forestland burning; 

(c) Protect public health by avoiding smoke 

intrusions; 

(d) Coordinate with other state smoke 

management programs; 

(e) Comply with state and federal air 

quality and visibility requirements; and 

(f) Promote the further development of 

techniques to minimize or reduce emissions 

by encouraging cost-effective utilization of 

forestland biomass, alternatives to burning 

and emission reduction techniques. 

A. 2014 Submittal Summary 

As discussed above, in 2014 Oregon 

revised its Smoke Management Plan and 

submitted it to EPA for approval into 

the SIP. Among the 2014 revisions, OAR 

629–048–0130, Visibility Objectives, 

was strengthened by extending 

applicability to the full calendar year, as 

it was previously only applicable from 

July 1 to September 15. OAR 629–048– 

0130 is the only provision in the 2014 

Submittal that remains in effect. All 

other portions of OAR 629–048 

submitted in 2014 were further revised 

and included in the state’s subsequent 

2019 Submittal. Since the remainder of 

the 2014 Submittal is no longer in effect 

as a matter of state law, EPA is not 

proposing to take action on any other 

component of Oregon’s 2014 Submittal. 

B. 2019 Submittal Summary 

In the 2019 Submittal, Oregon’s 

process for approving prescribed fires 

focuses heavily on forecasting weather 

conditions and their effects on smoke 

dispersal with new NAAQS-related 

considerations. Oregon’s previous 

approach included making single 

decisions for large tracts (approximately 

150,000 contiguous acres, roughly the 

size of a ranger district) even though 

these large tracts can contain multiple 

airsheds and vastly different smoke 

dispersion conditions. The approach in 

the 2019 Submittal is more protective 

because ODF tailors burn decisions 

based on air quality and meteorological 

conditions within airsheds allowing for 

more accurate forecasts of smoke 

dispersion overall. 

Oregon’s prescribed fires and 

resulting smoke are managed under the 

2019 Submittal with no burning allowed 

within 35 miles of a smoke sensitive 

receptor area 2 (SSRA), if smoke or 


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consultation with DEQ under OAR 629–048–0140, 

due to past history of smoke incidents, density of 

population or other special legal status related to 

visibility such as the Columbia River Gorge Scenic 

Area. 

3EPA finalized the 2012 proposed approval on 

August 22, 2012, (77 FR 50611). 

4Special Protection Zones have been established 

around certain communities requiring additional 

protection from particulates such as nonattainment 

or maintenance. Maps identifying these areas are 

identified in maps located within Department 

Directive 1–4–1–601, which is included in the 

docket. See OAR 629–048–0135 for details on 

requirements for these areas. 

5A copy of the study is included in the Docket 

materials for this action. See: Oregon SMP 110 

Discussion. 

6See Section 2.6 of Oregon SMP 110 Discussion, 

which is included in the docket for this action. 

7 Klamath Falls 2006 PM2.5, 81 FR 36176, 6/6/ 

2016; and Oakridge 2006 PM2.5, 85 FR 5537, 

2/8/2018; Oakridge 1987 p.m.10, 66 FR 38947, 

7/26/2001. 

down-slope drainage is likely to impact 

the SSRA due to forecasted wind 

direction. Forecasts are produced 6 days 

a week by ODF during the prescribed 

fire season and provide instructions for 

burners to prevent smoke impacts such 

as wind-direction related limitations on 

burning near SSRAs. Oregon’s stated 

main goal of burn instructions is to 

move smoke up and away from ground 

levels, which is why individual burn 

plan instructions are customized for the 

burn area and are subject to changes 

based on forecast meteorology and field 

conditions. ODF also communicates 

directly with individual burn bosses 

about fires planned near SSRAs. 

The 2019 Submittal’s SIP revisions do 

not increase prescribed fire 

authorization levels. The 2019 

Submittal also retains the five program 

elements in Oregon’s currently 

approved SIP: (1) Taking actions to 

minimize smoke emissions, (2) burning 

only during appropriate weather 

conditions in order to avoid smoke 

impacts in urban areas, (3) encouraging 

use of alternatives to fire, including a 

comprehensive reference manual of 

alternatives to prescribed fire, (4) 

requiring permits be obtained prior to 

burning, and (5) including a burn 

authorization process that involves the 

issuance of smoke management 

forecasts and burning instructions.3

Oregon’s 2019 Submittal includes 

additional controls and contingencies to 

protect against impacts on air quality 

from prescribed burning to 

nonattainment areas, maintenance areas, 

and areas at risk for becoming 

nonattainment. The 2019 Submittal 

provisions call for consideration of all 

particulate matter (PM) emissions in the 

air when planning for prescribed burns 

whereas the current federally approved 

requirements only consider the PM 

emissions attributable to prescribed 

fires. The 2019 Submittal adds a 

definition for a ‘‘smoke incident’’ and 

re-defines a ‘‘smoke intrusion’’ in order 

to establish sub-NAAQS intrusion 

thresholds and a burn approval target 

not to exceed approximately 75% of the 

24-hour PM2.5 NAAQS. The 2019 SIP 

Submittal also establishes a NAAQS 

protective criterion for burn approvals 

through use of a one-hour threshold 

even though there is no NAAQS onehour limit. The one-hour intrusion 

level, set at 70 mg/m3, and a 24-hour 

intrusion level set at 26 mg/m3 level 

(OAR 629–048–0005 (27)) are designed 

to protect the NAAQS (PM2.5). These 

criteria collectively enable ODF to 

dictate necessary modifications to burn 

volume or tonnage, or to withhold 

approval to burn considering weather 

conditions. Considered as a whole, the 

revisions contained in the 2019 

Submittal strengthen the currently SIPapproved smoke management 

requirements. 

Other notable modifications to the 

State’s Smoke Management SIP include 

a process for developing community 

response plans and exemption requests, 

updates to Special Protection Zone 4

(SPZ) requirements that provide extra 

smoke management protection during 

winter months to communities with 

histories of exceeding federal air quality 

standards, and allowing the use of 

polyyethylene sheeting on burn piles to 

facilitate rapid ignition and combustion 

of burn piles. 

III. Evaluation of Oregon’s SIP 

Submittals 

Approvals to revisions of SIPs are 

subject to the requirements of CAA 

section 110(l). Under CAA section 

110(l), the Administrator may not 

approve a SIP revision ‘‘if the revision 

would interfere with any applicable 

requirements concerning attainment and 

reasonable further progress, or any other 

applicable requirement of [the Act].’’ 

The 2019 Submittal contains a ‘weight 

of evidence’ analysis 5 focused primarily 

on particulate matter impacts of the 

SMP revisions, as well as the 

implications of the revisions to the SMP 

on other NAAQS pollutants. The most 

relevant pollutants for this analysis are 

PM2.5, PM10, and ozone due to the 

nature of prescribed fire emissions and 

because EPA recently revised the PM2.5

and Ozone NAAQS resulting in more 

stringent standards (78 FR 3085, January 

15, 2013, and 80 FR 65292, October 26, 

2015). EPA expects that attainment and 

maintenance related to criteria 

pollutants other than PM and ozone are 

unlikely to be impacted by the State’s 

prescribed burning program. In 

addition, there are no nonattainment 

areas for ozone, carbon monoxide, 

sulfur dioxide, nitrogen dioxide, or lead 

in Oregon, nor has Oregon submitted 

any changes to regulatory limits in its 

smoke management SIP provisions for 

these pollutants. 

Prescribed burning does not generally 

occur in Oregon in summer months, the 

season when ozone values are expected 

to be the highest due to increased 

temperature and solar radiation, because 

those months generally have 

unfavorable smoke dispersion 

conditions 6 and fire safety concerns. 

For these reasons, we are proposing to 

find that attainment and maintenance of 

the Ozone NAAQS are unlikely to be 

affected by the provision submitted for 

approval. 

We are also proposing to find that 

attainment and maintenance of the PM 

NAAQS are unlikely to be affected by 

the provisions in the 2019 Submittal for 

reasons discussed below. There are 

currently three PM nonattainment areas 

in Oregon: Klamath Falls for 2006 PM2.5

and Oakridge for the 2006 PM2.5 and 

1987 PM10 NAAQS. Determinations of 

Attainment by the Attainment Date and 

a Clean Data Determinations were 

published by EPA for these areas.7 All 

areas in Oregon fall far below the PM10

standard of 150 mg/m3 and are attaining 

the PM10 NAAQS. As discussed in the 

proposed findings of attainment for 

Klamath Falls (81 FR 36176, June 6, 

2016) and Oakridge (82 FR 52686, 

November 14, 2017), residential wood 

combustion (RWC) in the cold, winter 

months during atmospheric inversions 

is the most significant source of PM2.5

emissions responsible for elevated 

particulate matter in these areas. RWC 

emissions from certified and noncertified wood stoves, fireplaces, and 

pellet stoves are the most significant 

source of PM2.5 emissions. In the 

Oakridge area, RWC accounts for about 

86% of the base year direct PM2.5

emissions and 84% of the projected 

emissions on worst case winter days. 

The primary control strategy for these 

areas is reducing emissions from 

residential wood combustion through a 

program to change-out uncertified 

woodstoves and an episodic woodstove 

curtailment program. The curtailment 

program restricts wood burning on 

‘‘Red’’ advisory days. ‘‘Red’’ days are 

generally declared when PM2.5

concentration is expected to be 25mg/m3

(approx. 72% of the NAAQS) or higher. 

Oregon established SPZs around 

Klamath Falls and Oakridge to provide 

additional protection from smoke in 

these areas. The Oregon Smoke 

Management Plan designates SPZs to 


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Federal Register / Vol. 86, No. 32 / Friday, February 19, 2021 / Proposed Rules 10223 

8 In its response to comments during the state 

public process, Oregon acknowledged that the 

proposed 2019 SIP amendments have the effect of 

allowing for an estimated increase of prescribed fire 

use by 80%. However, EPA proposes to conclude 

the burn-specific authorization criteria based on 

ambient monitoring data, included in the proposed 

SIP amendment, are sufficient to ensure continued 

protection of the NAAQS. 

9From 629–048–0180 (3)(d), ‘‘ODF and DEQ may 

revoke the exemption if there are repeated (three or 

more in five years) smoke intrusions that exceed the 

24-hour average threshold or prescribed burning 

contributes to two or more NAAQS exceedances.’’ 

10A copy of the study is included in the Docket 

materials for this action. See: Attachment G of 

Oregon SMP 110 Discussion. 

11As described in OAR 629–048–0137 SPZ 

Contingency Plan Requirements. 

12SSRAs are areas designated for the highest level 

of protection under the Smoke Management Plan 

(OAR 629–048–0005(26). 

13See our proposed approval of Oregon’s 

Regional Haze Progress Report (83 FR 11927, March 

19, 2018) which was finalized May 17, 2018 (83 FR 

33853). 

include extra restrictions regarding the 

use of prescribed fire during the 

problematic cold weather season when 

these areas can experience air stagnation 

events. Specifically, the Oregon SMP at 

OAR 629–048–0135 prohibits 

prescribed burning on ‘‘Red’’ woodstove 

days in the SPZ from December 1 

through February 15 and provides 

additional cautionary requirements for 

prescribed burning in SPZs on non 

‘‘Red’’ woodstove days from November 

15 through February 15. 

The 2014 and 2019 submittals 

establish more protective burn 

authorization levels than those in the 

previously SIP-approved SMP through 

the establishment of sub-NAAQS 

intrusion thresholds at OAR 629–048– 

0005(27).8 For example, although there 

is no one hour NAAQS for PM2.5, ODEQ 

has established a 1-hr threshold of 70 

mg/m3, further bound by the 24-hr 

threshold of 26 mg/m3 (approximately 

75% of the NAAQS) for determining 

whether or not a burn will be permitted. 

If PM2.5 is at or above the sub-NAAQS 

thresholds, the 2019 Submittal provides 

that a prescribed burn would not be 

approved. Likewise, if the PM2.5 is lower 

than the PM2.5 thresholds, but 

additional smoke would likely cause an 

exceedance of the thresholds, the burn 

would also not be approved. The 

submitted revisions contain an 

exemption process from the 1-hr PM2.5

intrusion threshold but the exemption 

imposes additional requirements and 

conditions (OAR 629–048–0180). The 

revised Smoke Management Plan also 

includes provisions for removing a 

community’s exemption from the 1-hour 

intrusion threshold if an area has had 

three or more 24-hour threshold 

exceedances in five years.9 The revised 

plan also includes a provision for 

revoking the exemption if the SSRA is 

within one exceedance of a NAAQS 

violation. Also, SSRAs that are in a nonattainment with the NAAQS will not be 

eligible for an exemption (see 629–048– 

0180 (3)(e) and (f)). There is not an 

exemption process for the 24-hr PM2.5

threshold of 26 mg/m3, therefore the 

revised Smoke Management Plan is 

more protective than the 24-hr PM2.5

NAAQS. 

The proposed revisions also include 

new best burn practices and emissions 

reduction techniques at OAR 629–048– 

0210 allowing the burning of 

polyethylene coverings used to keep 

piles of slash and thinning debris dry. 

To determine the efficacy of 

polyethylene coverings, ODF and EPA’s 

Office of Research and Development 

contracted with a testing firm to 

conduct a study 10 of emissions from 

wet versus dry (covered and uncovered) 

piles. The study showed that wet piles 

burn slower and produce more 

emissions on a mass basis due to 

incomplete combustion than dry piles. 

In general, burning dry piles, even with 

polyethylene still in place, produces 

less criteria pollutant emissions than 

burning uncovered wet piles. Therefore, 

the revisions allowing for burning 

polyethylene to facilitate a reduction in 

emissions are more protective of the 

NAAQS. 

Some additional changes in the 2014 

and 2019 Submittals that EPA proposes 

to determine are either more protective 

than current SIP requirements or not 

expected to result in significant NAAQS 

impacts include expanding SPZ 

boundaries 11 to include the areas from 

which prescribed burning could cause 

an impact and changing SSRA 12

boundaries to better align with airshed 

boundaries. Prescribed burning is 

generally not expected to make 

significant contributions to the 

remaining criteria pollutants (Lead, CO, 

NOX, and SO2) due to a combination of 

factors. Monitored values in Oregon for 

these pollutants are well below the level 

of the NAAQS; wildfires are not known 

to be significant contributors of airborne 

Lead or SO2, and finally, prescribed 

burning in any one geographic area will 

be infrequent enough that it is not 

expected to create elevated 

concentrations that violate the NAAQS 

for any of these criteria pollutants. For 

additional information regarding these 

pollutants see Oregon SMP 110 

Discussion, which is included in the 

docket materials for this action. 

Oregon’s Smoke Management Plan 

revisions include OAR 629–048–0130 

Visibility Objectives, which clearly state 

that it is the intent under the Smoke 

Management Plan to comply with 

Regional Haze requirements as 

identified in the Oregon Regional Haze 

Plan. The revised Smoke Management 

Plan also enhances the Regional Haze 

Plan by incorporating practices to 

minimize visibility impacts to the 

Kalmiopsis Wilderness and Crater Lake 

National Park into the Smoke 

Management Plan.13 Oregon’s 5-Year 

Progress Report approved May 17, 2019 

(83 FR 22853), demonstrates that the 

long-term strategy and emission control 

measures in the existing Regional Haze 

SIP are sufficient to enable Oregon to 

meet all established reasonable progress 

goals. EPA proposes to find that 

Oregon’s smoke management revisions 

do not constitute a relaxation in 

Oregon’s Regional Haze SIP approved 

August 22, 2012 (77 FR 50611) because 

Oregon’s revisions do not alter limits on 

the quantity of light impairing 

pollutants emitted from prescribed 

burning and OAR 629–048(2) clearly 

states it is Oregon’s intent to operate 

their Smoke Management Plan in a 

manner consistent with the Oregon 

Regional Haze Plan. 

IV. Technical Corrections 

EPA is making technical corrections 

to provisions previously approved as 

revisions to the Oregon SIP pursuant to 

CAA 110(k)(6). In 2012 we approved (77 

FR 50611) Oregon’s revised Smoke 

Management Plan at OAR 629–048– 

0001 through –0500 which replaced 

OAR 629–043–0043 but we failed to 

update 40 CFR 52.1970(c), Table 2. We 

are correcting Table 2 to reflect the 2012 

approval by removing ‘‘OAR 629–43– 

043’’ and adding the portions of OAR 

629–048 (state effective January 1, 2008) 

that were not revised by Oregon’s 2014 

or 2019 Submittals. 

We are correcting the identification of 

the Oregon SIP at 40 CFR part 

52.1970(c), Table 2 by adding: 

• OAR 629–048–0100, Regulated 

Areas (state effective 1/1/2008); 

• OAR 629–048–0160, Bear Creek/ 

Rogue River Valley SSRA (state effective 

1/1/2008); 

• OAR 629–048–0300, Registration of 

Intent to Burn (state effective 1/1/2008); 

• OAR 629–048–0330, Emission 

Inventories (state effective 1/1/2008); 

• OAR 629–048–0400, Coordination 

with Other Regulating Jurisdictions and 

for Other Pollutants (state effective 1/1/ 

2008). 

We are also making technical 

corrections to the Oregon SIP at 40 CFR 

part 52.1970(e), Table 5, Section 3, by 

revising the reference to Oregon’s 


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10224 Federal Register / Vol. 86, No. 32 / Friday, February 19, 2021 / Proposed Rules 

Smoke Management Plan 

Administrative Rule to reflect the 2012 

approval of OAR 629–048 and by 

removing the reference to OAR ‘‘629 43– 

043’’. 

V. EPA’s Proposed Action 

We have reviewed Oregon’s 

demonstration and propose to find that 

the revisions discussed above meet the 

requirements of the CAA. Based on our 

review of Oregon’s demonstration, we 

propose to conclude that the revisions 

to Oregon’s SIP will not interfere with 

any applicable requirement concerning 

attainment, reasonable further progress, 

or any other applicable requirement of 

the Clean Air Act. 

Under CAA section 110(k), EPA is 

proposing to approve, and incorporate 

by reference, the 2014 and 2019 

submitted revisions into the Oregon SIP 

at 40 CFR part 52, subpart MM. As 

discussed above, Oregon’s 2014 and 

2019 Submittals revised portions of 

OAR 629–048 and we are proposing to 

approve only the most recently 

submitted version of such regulations as 

previous versions are no longer in effect 

as a matter of state law. 

Upon final approval, the Oregon SIP 

will include the addition of the 

following: 

• OAR 629–048–0001, Title, Scope 

and Effective Dates (state effective 3/1/ 

2019); 

• OAR 629–048–0005, Definitions 

(state effective 3/1/2019); 

• OAR 629–048–0010, Purpose (state 

effective 3/1/2019); 

• OAR 629–048–0020, Necessity of 

Prescribed Burning (state effective 3/1/ 

2019); 

• OAR 629–048–0021, Necessity of 

Safeguarding Public Health (state 

effective 3/1/2019); 

• OAR 629–048–0100, Regulated 

Areas (state effective 1/1/2008); 

• OAR 629–048–0110, 

Characterization and Response to 

Smoke Incidents, Smoke Intrusions, and 

National Ambient Air Quality Standards 

(NAAQS) Exceedances (state effective 3/ 

1/2019); 

• OAR 629–048–0120, Air Quality 

Maintenance Objectives (state effective 

3/1/2019); 

• OAR 629–048–0130, Visibility 

Objectives (state effective 7/11/2014); 

• OAR 629–048–0135, Special 

Protection Zone Requirements (state 

effective 3/1/2019); 

• OAR 629–048–0137, SPZ 

Contingency Plan Requirements (state 

effective 3/1/2019); 

• OAR 629–048–0140, Smoke 

Sensitive Receptor Areas (state effective 

3/1/2019); 

• OAR 629–048–0150, Criteria for 

Future Listing of Smoke Sensitive 

Receptor Areas (state effective 3/1/ 

2019); 

• OAR 629–048–0160, Bear Creek/ 

Rogue River Valley SSRA (state effective 

1/1/2008); 

• OAR 629–048–0180, 

Communication, Community Response 

Plans, and Exemption Requests (state 

effective 3/1/2019); 

• OAR 629–048–0200, Regulated 

Areas (state effective 3/1/2019); 

• OAR 629–048–0210, Best Burn 

Practices; Emission Reduction 

Techniques (state effective 3/1/2019); 

• OAR 629–048–0220, Forecast 

Procedures (state effective 3/1/2019); 

• OAR 629–048–0230, Burn 

Procedures (state effective 3/1/2019); 

• OAR 629–048–0300, Registration of 

Intent to Burn (state effective 1/1/2008); 

• OAR 629–048–0310, Fees for 

Prescribed burning (state effective 3/1/ 

2019); 

• OAR 629–048–0320, Reporting of 

Accomplishments (state effective 3/1/ 

2019); 

• OAR 629–048–0330, Emission 

Inventories (state effective 1/1/2008); 

• OAR 629–048–0400, Coordination 

with Other Regulating Jurisdictions and 

for Other Pollutants (state effective 1/1/ 

2008); 

• OAR 629–048–0450, Periodic 

Evaluation and Adaptive Management 

(state effective 3/1/2019); 

• OAR 629–048–0500, Enforcement 

(state effective 3/1/2019); 

• ORS 477.013, Smoke Management 

Plan; rules (state effective 3/1/2019); 

and 

• Oregon Department of Forestry 

Directive 1–4–1–601, Operational 

Guidance for the Oregon Smoke 

Management Program (state effective 3/ 

1/2019). 

Pursuant to 110(k)(6), we are also 

making corrections to the regulatory text 

that includes incorporation by reference 

by removing ‘‘OAR 629–43–043’’ as 

discussed in Section IV. Upon final 

approval, the following regulations will 

be removed from 40 CFR 52.1970(c), 

Table 2: 

• OAR 629–043–0043, Smoke 

Management Plan (state effective 4/13/ 

1987); and the corresponding crossreference will be removed from 40 CFR 

52.1970(e), Table 5, Section 3. 

VI. Incorporation by Reference 

In this document, EPA is proposing to 

include in a final rule, regulatory text 

that includes incorporation by 

reference. In accordance with 

requirements of 1 CFR 51.5, EPA is 

proposing to incorporate by reference 

the provisions described in Section V of 

this preamble. Also, in this document, 

EPA is proposing to remove the 

incorporation by reference of ‘‘OAR 

629–43–043’’ as described in Section IV. 

EPA has made, and will continue to 

make, these documents generally 

available through https://

www.regulations.gov and at EPA Region 

10 Office (please contact the person 

identified in the FOR FURTHER

INFORMATION CONTACT section of this 

preamble for more information). 

VII. 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 Clean Air 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 

proposed 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 proposed 

action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Orders 12866 (58 FR 51735, 

October 4, 1993) and 13563 (76 FR 3821, 

January 21, 2011); 

• 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 the requirements would 

be inconsistent with the Clean Air Act; 

and 

• Does not provide EPA with the 

discretionary authority to address, as 


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Federal Register / Vol. 86, No. 32 / Friday, February 19, 2021 / Proposed Rules 10225 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this proposed action does 

not apply on any Indian reservation 

land or in any other area where EPA or 

an Indian tribe has demonstrated that a 

tribe has jurisdiction. In those areas of 

Indian country, the rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Incorporation by reference, 

Intergovernmental relations, Ozone, 

Particulate matter. 

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

Dated: February 9, 2021. 

Michelle L. Pirzadeh, 

Acting Regional Administrator, Region 10. 

[FR Doc. 2021–03036 Filed 2–18–21; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2020–0477; FRL–10016– 

38–Region 9] 

Air Plan Approval; California; Placer 

County Air Pollution Control District; 

Open Burning Rules 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve 

revisions to the Placer County Air 

Pollution Control District (PCAPCD) 

portion of the California State 

Implementation Plan (SIP). These 

revisions concern emissions of oxides of 

nitrogen (NOX) and particulate matter 

(PM) from open burning. We are 

proposing to approve local rules to 

regulate these emission sources under 

the Clean Air Act (CAA or the Act). We 

are taking comments on this proposal 

and plan to follow with a final action. 

DATES: Comments must be received on 

or before March 22, 2021. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R09– 

OAR–2020–0477 at https://

www.regulations.gov. For comments 

submitted at Regulations.gov, follow the 

online instructions for submitting 

comments. Once submitted, comments 

cannot be edited or removed from 

Regulations.gov. The EPA may publish 

any comment received to its public 

docket. Do not submit electronically any 

information you consider to be 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Multimedia 

submissions (audio, video, etc.) must be 

accompanied by a written comment. 

The written comment is considered the 

official comment and should include 

discussion of all points you wish to 

make. The EPA will generally not 

consider comments or comment 

contents located outside of the primary 

submission (i.e. on the web, cloud, or 

other file sharing system). For 

additional submission methods, please 

contact the person identified in the FOR

FURTHER INFORMATION CONTACT section. 

For the full EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

https://www.epa.gov/dockets/ 

commenting-epa-dockets. If you need 

assistance in a language other than 

English or if you are a person with 

disabilities who needs a reasonable 

accommodation at no cost to you, please 

contact the person identified in the FOR

FURTHER INFORMATION CONTACT section. 

FOR FURTHER INFORMATION CONTACT: 

Kevin Gong, EPA Region IX, 75 

Hawthorne St., San Francisco, CA 

94105. By phone: (415) 972–3073 or by 

email at Gong.Kevin@epa.gov. 

SUPPLEMENTARY INFORMATION: 

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

and ‘‘our’’ refer to the EPA. 

Table of Contents 

I. The State’s Submittal 

A. What rules did the State submit? 

B. Are there other versions of these rules? 

C. What is the purpose of the submitted 

rule revisions? 

II. The EPA’s Evaluation and Action 

A. How is the EPA evaluating the rules? 

B. Do the rules meet the evaluation 

criteria? 

C. The EPA’s Recommendations To Further 

Improve the Rules 

D. Public Comment and Proposed Action 

III. Incorporation by Reference 

IV. Statutory and Executive Order Reviews 

I. The State’s Submittal 

A. What rules did the State submit? 

Table 1 lists the rules addressed by 

this proposal with the dates that they 

were adopted by the local air agency 

and submitted by the California Air 

Resources Board. 

TABLE 1—SUBMITTED RULES

Local agency Rule No. Rule title Amended Submitted 

PCAPCD ......... 301 Nonagricultural Burning Smoke Management ................................................ 08/09/2018 11/21/2018 

PCAPCD ......... 302 Agricultural Waste Burning Smoke Management .......................................... 08/09/2018 11/21/2018 

PCAPCD ......... 305 Residential Allowable Burning ........................................................................ 10/11/2018 01/31/2019 

On May 21, 2019, the submittal for 

PCAPCD Rules 301 and 302 was 

deemed by operation of law to meet the 

completeness criteria in 40 CFR part 51 

Appendix V, which must be met before 

formal EPA review. On July 31, 2019, 

the submittal for PCAPCD Rule 305 was 

also deemed by operation of law to meet 

the criteria. 

B. Are there other versions of these 

rules? 

We approved earlier versions of Rules 

301, 302, and 305 into the SIP on 

January 31, 2013 (78 FR 6736). If we 

take final action to approve the 

submitted versions of Rules 301, 302, 

and 305 that are the subject of this 

rulemaking, they will replace the 

previously approved versions of these 

rules in the SIP. 

C. What is the purpose of the rule 

revisions? 

Emissions of NOX contribute to the 

production of ground-level ozone, smog 

and PM, which harm human health and 

the environment. Section 110(a) of the 

CAA requires states to submit 

regulations that control NOX emissions. 

Emissions of PM, including PM equal to 

or less than 2.5 microns in diameter 

(PM2.5) and PM equal to or less than 10 

microns in diameter (PM10), contribute 

to effects that are harmful to human 

health and the environment, including 

premature mortality, aggravation of 

respiratory and cardiovascular disease, 

decreased lung function, visibility 

impairment, and damage to vegetation 

and ecosystems. Section 110(a) of the 

CAA requires states to submit 


tkelley on DSKBCP9HB2PROD with PROPOSALS