EO12866/13563 Interagency Review. Subject to Further Policy Review.

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Environmental Protection Agency (EPA): Proposed Rule 

Protection of Visibility: Amendments to Requirements for State Plans 

RIN 2060-AS55 

March 9, 2016 

Issue: Wildland without a multi-year management plan providing for prescribed fire 

I. New Proposal by EPA 

Preamble Section IV.E 

If the projected RPG for a Class I area is above the URP line due only to the anticipated use of 

wildland prescribed fire needed for ecosystem health and safety, we do not believe that states 

should expend valuable analytical and decision making resources on additional analysis of 

measures necessary for reasonable progress if they have otherwise satisfied the terms of the 

Regional Haze Rule. Therefore, as in the case of impacts from sources in other countries as 

discussed in section IV.D, we are requesting comment on a proposed provision in 

§51.308(f)(1)(vi) that would allow states with Class I areas significantly impacted by emissions 

from wildland prescribed fires to make an adjustment to the uniform rate of progress with 

specific approval by the Administrator. The adjustment would consist of adding to the value of 

natural visibility conditions an estimate of wildland prescribed fire impacts, only for the purpose 

of calculating the uniform rate of progress and only for prescribed fires that were conducted 

under multi-year land or resource management plans for wildland areas that have a stated with 

the objective to establish, restore and/or maintain a sustainable and resilient wildland 

ecosystems, and/or to preserve endangered or threatened species, and/or to reduce the risk of 

catastrophic wildfires, through a program of prescribed fire and that provide for the use of 

during which appropriate basic smoke management practices were applied. FLMs prepare such 

multi-year management plans for the areas they manage that document the objective of 

prescribed fire for a land area. We would also consider a fire management plan1 for state, tribal 

or private lands that has been reviewed and certified by the appropriate fire and/or resource 

management professionals and agreed to and followed by the land owner/manager to be 

sufficient to meet this restriction on the scope of the adjustment to the uniform rate of progress. 

Other evidence of the objective of a prescribed fire would be considered on a case-by-case basis. 

We believe that this adjustment should be permitted only if such prescribed fire impacts have 

been estimated with methods and data approved by the Administrator as scientifically valid.1 

Rule text 

 

1

 These plans could also include land and resource management plans, landscape management 

plans or equivalent public planning documents, e.g., State Forest Action Plans (as mandated by 

the 2008 Farm Bill).

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Commented [A1]: Edit for consistency with other parts of the 

NPRM, including the reference to safety near the beginning of the 

current paragraph. 

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 (B) The State may submit a request to the Administrator seeking an adjustment to the 

uniform rate of progress for a mandatory Class I Federal area to account for impacts from 

(1) anthropogenic sources outside the United States and/or (2) wildland prescribed fires 

that were conducted under a multi-year land or resource management plan for a wildland 

area that has a stated with the objective to establish, restore, or maintain sustainable and 

resilient wildland ecosystems, or to preserve endangered or threatened species through a 

program of prescribed fire, and/or to reduce the risk of catastrophic wildfires and that 

provides for the use of appropriate basic smoke management practices. To calculate the 

proposed adjustment, the State must add the estimated impacts to natural visibility 

conditions and compare the resulting value to baseline visibility conditions. If the 

Administrator determines that the State has estimated the impacts from anthropogenic 

sources outside the United States or wildland prescribed fires using scientifically valid 

data and methods, the Administrator may approve the proposed adjustment to the 

uniform rate of progress for use in the State’s implementation plan. 

II. Related sections of the Exceptional Events NPRM 

Preamble on Unlikely to recur 

Therefore, we are proposing in rule text that we will consider a demonstration’s referencing of a 

multiyear land or resource management plan 91 (and including either a copy or an internet link to 

the plan) with a stated objective to establish, restore and/ or maintain a sustainable and resilient 

wildland ecosystem and/or to preserve endangered or threatened species that also identifies the 

subject area as a candidate for prescribed fire to be dispositive evidence that a particular fire 

conducted in accordance with such a plan satisfies the ‘‘unlikely to recur at a particular 

location’’ criterion. We would also consider a demonstration’s referencing of a fire management 

plan for tribal or private lands that has been reviewed and certified by the appropriate fire and/or 

resource management professionals and agreed to and followed by the land owner/manager to be 

sufficient evidence satisfying the ‘‘unlikely to recur at a particular location’’ criterion. (80 FR 

72872) – 

Footnote 91: . 

Note that this concept about tribal/private lands is not reflected in the proposed rule text: 

(iii) Provided the Administrator determines that there is no compelling evidence to the 

contrary in the record, in addressing the requirements set forth in paragraph (c)(3)(iv)(E) 

of this section regarding the human activity unlikely to recur at a particular location 

criterion for demonstrations involving prescribed fires on wildland, the State must 

describe the actual frequency with which a burn was conducted, but may rely upon and 

reference an assessment of the natural fire return interval or the prescribed fire frequency 

needed to establish, restore, and/or maintain a sustainable and resilient wildland 

ecosystem contained in a multi-year land or resource management plan with a stated 

objective to establish, restore, and/or maintain a sustainable and resilient wildland 

Commented [A2]: For consistency to references of prescribed 

fire in the preamble. 

Commented [A3]: This footnote also includes “These plans 

could also include fire management plans, prescribed fire on 

wildland management plans, landscape management plans or 

equivalent public planning documents.” 

Equivalent public planning documents can include State Forest 

Action Plans (mandated by the 2008 Farm Bill) and plans developed 

for the Collaborative Forest Landscape Restoration Program 
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ecosystem and/or to preserve endangered or threatened species through a program of 

prescribed fire.) (80 FR 72895) 

Preamble on Not reasonably controllable or preventable 

Accordingly, the EPA is proposing in rule text form to consider a prescribed fire on wildland 

conducted in accordance with a multi-year fire management plan that has an objective to 

establish, restore and/or maintain a sustainable and resilient wildland ecosystem to be not 

reasonably preventable, provided there is no compelling evidence to the contrary in the record 

when the EPA approves the associated exceptional events demonstration.97 (80 FR 72874) 

Footnote: 97 On a case-by-case basis, in the absence of a multi-year plan, the EPA would 

also consider a prescribed fire on wildland conducted on a fire return interval established 

according to scientific literature to satisfy the not reasonably controllable or preventable 

criterion provided the prescribed fire was also conducted with the objective to establish, 

restore and/or maintain a sustainable and resilient wildland ecosystem and conducted in 

compliance with either a state-certified SMP or BSMP. This case-by-case approach is 

similar to the approach currently used under the 2007 Exceptional Events Rule. 

Note that this concept about the absence of a multi-year plan is not reflected in the proposed rule 

text: 

(A) With respect to the requirement that a prescribed fire be not reasonably controllable, 

the State must either certify to the Administrator that it has adopted and is implementing 

a smoke management plan or the State must demonstrate that the burn manager employed 

the generally applicable basic smoke management practices identified in Table 2 to § 

50.14. To make the latter demonstration, the State may rely on a statement or other 

documentation provided by the burn manager that he or she employed those practices. If 

an exceptional event occurs using the basic smoke management practices approach, the 

State must undertake a review of its approach to ensure public health is being protected. 

(B) With respect to the requirement that a prescribed fire be not reasonably preventable, 

provided the Administrator determines that there is no compelling evidence to the 

contrary in the record, the State may rely upon and reference a multi-year land or 

resource management plan for a wildland area with a stated objective to establish, restore 

and/or maintain a sustainable and resilient wildland ecosystem and/or to preserve 

endangered or threatened species through a program of prescribed fire, but also provided 

that the use of prescribed fire in the area has not exceeded the frequency indicated in that 

plan.