[Federal Register Volume 87, Number 196 (Wednesday, October 12, 2022)]
[Proposed Rules]
[Pages 61870-61940]
[FR Doc No: 2022-20486]

Vol. 87

Wednesday,

No. 196

October 12, 2022

Part IV

Environmental Protection Agency

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40 CFR Part 49

Federal Implementation Plans Under the Clean Air Act for Indian
Reservations in Idaho, Oregon, and Washington; Proposed Rule

Federal Register / Vol. 87 , No. 196 / Wednesday, October 12, 2022 /
Proposed Rules

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 49

[EPA-R10-OAR-2020-0361; FRL-5565-02-R10]
RIN 2012-AA02

Federal Implementation Plans Under the Clean Air Act for Indian
Reservations in Idaho, Oregon, and Washington

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) proposes to revise
the Federal Air Rules for Reservations (FARR), which is a collection of
Federal Implementation Plans (FIPs) under the Clean Air Act for Indian
reservations in Idaho, Oregon, and Washington. The proposed revisions,
the first since the FARR was promulgated in 2005, clarify aspects of
the initial rules, improve implementation, reflect air quality
improvement strategies similar to those implemented in neighboring
jurisdictions, and add provisions to address high levels of particulate
matter emissions. In addition, the EPA proposes to promulgate three new
FIPs implementing the FARR, for the Snoqualmie Indian Reservation, the
Cowlitz Indian Reservation, and the lands held in trust for the Samish
Indian Nation. As revised, the FARR will help further protect the human
health and the environment of communities in and adjacent to these
Indian reservations. The FARR will continue to be implemented by the
EPA or a delegated Tribal authority, until replaced by a Tribal
Implementation Plan (TIP) for a particular Indian reservation.

DATES:
    Comments: Comments must be received on or before January 10, 2023.
Under the Paperwork Reduction Act (PRA), comments on the information
collection provisions are best assured of consideration if the Office
of Management and Budget (OMB) receives a copy of your comments on or
before November 14, 2022. Please refer to the SUPPLEMENTARY INFORMATION
section (section IV.B. Paperwork Reduction Act (PRA) of this preamble)
for additional information on submitting comments to OMB.
    Public Hearing: If anyone contacts us requesting a public hearing
on or before October 27, 2022, the EPA will hold a virtual public
hearing. See SUPPLEMENTARY INFORMATION for information on requesting
and registering for a public hearing.

ADDRESSES: You may submit your comments, identified by Docket ID No.
EPA-R10-OAR-2020-0361, using the Federal eRulemaking Portal at https://www.regulations.gov. Follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
www.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, 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. See the SUPPLEMENTARY
INFORMATION section for further instructions on submitting comments.
Please contact the individual listed in the FOR FURTHER INFORMATION
CONTACT section if you need assistance.

FOR FURTHER INFORMATION CONTACT: Sandra Brozusky, Air and Radiation
Division, EPA Region 10, 1200 Sixth Avenue, Suite 155, Seattle, WA
98101-1128,<PHONE_NUMBER>, [email protected].

SUPPLEMENTARY INFORMATION: Participation in virtual public hearing. As
discussed in the public hearing subsection, if anyone contacts us to
request a public hearing on or before October 27, 2022, a virtual
hearing will be held on November 17, 2022. The opportunity for a
virtual public hearing is being offered to provide interested parties
the opportunity to present information and opinions to the EPA
concerning our proposal.
    If requested, the virtual hearing will convene at 5:30 p.m. Pacific
Time and will conclude at 8:00 p.m. Pacific Time unless the number of
registrants indicates more time is needed. The EPA may close a session
15 minutes after the last registered speaker has testified if there are
no additional speakers. The EPA will announce further details,
including whether the hearing will be held, on the virtual public
hearing website at https://www.epa.gov/farr.
    If a virtual hearing is held you can register to speak by using the
online registration form available at www.epa.gov/farr or contact
Sandra Brozusky at by email at [email protected]. The EPA will
post a general agenda prior to the hearing that will list registered
speakers in approximate order at: www.epa.gov/farr.
    The EPA will make every effort to follow the schedule as closely as
possible on the day of the hearing; however, please plan for the
hearings to run either ahead of schedule or behind schedule.
    Each commenter will have 5 minutes to provide oral testimony. The
EPA recommends submitting the text of your oral testimony as written
comments to the rulemaking docket.
    The EPA may ask clarifying questions during the oral presentations
but will not respond to the presentations at that time. Written
statements and supporting information submitted during the comment
period will be considered with the same weight as oral testimony and
supporting information presented at the public hearing.
    Please note that any updates made to any aspect of the hearing will
be posted online at www.epa.gov/farr. Please monitor our website or
contact Sandra Brozusky at<PHONE_NUMBER> or by email at
[email protected] to determine if there are any updates. The EPA
does not intend to publish a document in the Federal Register
announcing updates.
    If you require the services of a translator or a special
accommodation such as audio description, please register for the
hearing and describe your needs by November 1, 2022. If you need
additional assistance, please contact the individual listed in the FOR
FURTHER INFORMATION CONTACT section. The EPA may not be able to arrange
accommodations without advanced notice.
    Docket. The EPA has established a docket for this rulemaking under
Docket ID No. EPA-R10-OAR-2020-0361. All documents in the docket are
listed in Regulations.gov. Although listed, some information is not
publicly available, e.g., Confidential Business Information (CBI) or
other information whose disclosure is restricted by statute. Certain
other material, such as copyrighted material, is not placed on the
internet and will be publicly available only in hard copy. Publicly
available docket materials are available electronically in
www.regulations.gov.
    Instructions. Direct your comments to Docket ID No. EPA-R10-OAR-
2020-0361. The EPA's policy is that all

comments received will be included in the public docket without change
and may be made available online at www.regulations.gov, including any
personal information provided, unless the comment includes information
claimed to be CBI or other information whose disclosure is restricted
by statute. Do not submit electronically any information that you
consider to be CBI or other information whose disclosure is restricted
by statute.
    The EPA may publish any comment received to its public docket.
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, 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.
    The www.regulations.gov website allows you to submit your comment
anonymously, which means the EPA will not know your identity or contact
information unless you provide it in the body of your comment. If you
submit an electronic comment, the EPA recommends that you include your
name and other contact information in the body of your comment and with
any digital storage media you submit. If the EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, the EPA may not be able to consider your comment.
Electronic files should not include special characters or any form of
encryption and be free of any defects or viruses. For additional
information about the EPA's public docket, visit the EPA Docket Center
homepage at https://www.epa.gov/dockets.
    Due to public health concerns related to COVID-19, the EPA Docket
Center and Reading Room are open to the public by appointment only. Our
Docket Center staff will continue to provide remote customer service
via email, phone, and webform. We encourage the public to submit
comments via www.regulations.gov. For further information and updates
on EPA Docket Center services, please visit us online at https://www.epa.gov/dockets.
    The EPA continues to carefully and continuously monitor information
from the CDC, local area health departments, and our Federal partners
so that we can respond rapidly as conditions change regarding COVID-19.
    Submitting CBI. Do not submit information containing CBI to the EPA
through www.regulations.gov or email. Clearly mark the part or all of
the information that you claim to be CBI. If your material cannot be
submitted using www.regulations.gov contact the person in the FOR
FURTHER INFORMATION CONTACT section of this document for alternate
instructions.
    Organization of this document. Throughout this document, whenever
``we,'' ``us,'' or ``our'' is used, it means the EPA. This
supplementary information section is arranged as follows:

Table of Contents

I. Background
    A. Today's Action
    B. Basis for Proposed Action
    C. Areas Covered by the Rules
    D. Relationship Between Part 49, Subpart C and Subpart M
II. Proposed FIP Revisions
    A. Proposed Revisions and New Rules
    B. Rules Proposed for Specific Indian Reservations
    C. Environmental Justice
    D. Costs and Benefits Associated With These Rules
III. Public Participation and Request for Comment
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act (PRA)
    C. Regulatory Flexibility Act (RFA)
    D. Unfunded Mandates Reform Act (UMRA)
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act (NTTAA)
    J. Executive Order 12898: Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations

I. Background

A. Today's Action

    To better protect air quality on Indian reservations in Idaho,
Oregon, and Washington, and consistent with our authority under
sections 301(a) and 301(d)(4) of the Clean Air Act (CAA) and 40 CFR
49.11(a), the EPA is proposing revisions to the Federal implementation
plans (FIPs) (40 CFR part 49, subpart M) and the General Rules for
Application to Indian Reservations in EPA Region 10 (40 CFR part 49,
subpart C). These rules, originally promulgated in 2005, are
collectively known as the Federal Air Rules for Reservations or
``FARR.'' As revised, the FARR will continue to ensure that basic air
quality regulations are in place to protect health and welfare on
Indian reservations located in Idaho, Oregon, and Washington.
    The proposed revisions are based on the EPA's and Tribes'
experience in implementing the FARR since 2005, as well as changes in
related Federal air quality regulations, and changes in monitored air
quality. The revisions range from minor clarifications and revisions to
existing rule language, to new regulations addressing additional
emission sources, such as wood burning devices, that contribute to high
levels of particulate matter emissions in certain areas. The minor
changes to the existing FARR consist of eliminating duplicative text,
correcting syntax and cross-reference errors, renumbering, minor
clarification of rule language to improve consistency and
implementation, and reformatting. In describing the FARR revisions in
section II of this preamble, we have focused on the substantive rule
changes, and do not describe in detail the editorial changes made
throughout.
    The proposed revisions include minor editorial changes throughout
the FARR (subpart C) and FIP (subpart M) rules, in addition to
substantive changes to certain provisions of the rules. As such, we are
publishing with this proposal the full text of the rules as proposed to
be revised, rather than only the portions of the text proposed to be
revised in this action. A redline-strikeout comparison of the revised
rules, as proposed, to the existing FARR and FIPs showing all proposed
changes is included in the docket for this action. The EPA solicits
comments on all aspects of the proposed revisions.
    The EPA actively coordinated and consulted with affected Tribes in
both group and individual meetings and encouraged affected Tribes to
provide input to the EPA in developing these proposed revisions to
ensure that Tribal considerations are properly addressed. This
coordination and consultation with affected Tribes is described in the
docket for this action.

B. Basis for Proposed Action

    On April 8, 2005, the EPA promulgated FIPs under the CAA for 39
Indian reservations in Idaho, Oregon, and Washington to provide basic
air quality regulations to protect health and

welfare (70 FR 18074). The EPA took this action under its authority in
sections 301(a) and 301(d)(4) of the CAA and 40 CFR 49.11(a) to
promulgate ``such Federal implementation plan provisions as are
necessary or appropriate to protect air quality'' in Indian country. A
key goal of the FARR was to help ensure that people living within
Indian reservation boundaries receive equivalent air quality protection
to those living outside of Indian reservations, as well as to ``level
the playing field'' and help ensure that emissions from sources located
within Indian reservations are controlled to levels similar to those of
sources located outside the Indian reservations. The FARR rules were
therefore substantially similar in the level of control to the
neighboring State and local rules most relevant to the air polluting
activities on these Indian reservations (70 FR 18074, 18077, 18091,
18093, April 8, 2005) (67 FR 11748, 11753, March 15, 2002).
    The EPA has stated that it intends to carry out its authority under
the CAA in Indian country in a prioritized way, beginning with sources
that pose the greatest threat to public health and the environment (64
FR 8247, 8255, February 19, 1999) (67 FR 11748, 11749, March 15, 2002).
The initial FIPs were the first building blocks under the CAA to
address the most prevalent needs identified on Indian reservations in
the Pacific Northwest. The EPA committed to revising the FARR as
necessary or appropriate after gaining experience in implementing the
FARR, identifying additional regulatory needs in light of changing air
quality needs, and in consultation with Tribes (70 FR 18074, 18079,
18082, 18085, April 8, 2005).
    This proposed rulemaking is the next step in addressing known air
quality concerns on Indian reservations in the Pacific Northwest. The
EPA has been implementing the FARR for over 15 years, often with the
help of Tribes through formal delegations, grants, and informal
assistance. Over the last several years, the EPA has actively
coordinated and consulted with the Tribes in Idaho, Oregon, and
Washington in developing these proposed revisions to the FARR and has
sought suggestions from those responsible for implementation. The
proposed revisions in this action incorporate many of these
suggestions.
    As with the initial promulgation of the FARR in 2005, the EPA is
proposing these revisions under our authority in sections 301(a) and
301(d)(4) of the CAA and 40 CFR 49.11(a) because we have concluded that
the revisions are necessary or appropriate for protecting air quality
on Indian reservations in the Pacific Northwest. The proposed revisions
fall into several categories. First, the EPA and the affected Tribes
have identified needed clarifications of existing rule sections to
ensure the FARR is implemented as intended in 2005. Second,
promulgation of new requirements that apply on Indian reservations,
such as the Federal Minor New Source Review Program in Indian Country
(Indian Country Minor NSR Rule) (76 FR 38748, July 1, 2011) has made
some provisions of the FARR obsolete or necessitated revisions. Third,
the test methods and industry standards incorporated by reference into
the FARR have been updated since 2005. Fourth, input from affected
Tribes and the EPA's ongoing evaluation of the FARR identified
particular concerns with air pollution from some unregulated sources of
particulate matter, such as emissions from residential wood burning
devices and certain orchard heating devices.
    Finally, since promulgation of the FARR, the EPA has strengthened
the National Ambient Air Quality Standards (NAAQS) and increased
protection of public health and welfare from fine particle pollution by
reducing the level of the NAAQS for PM2.5 (particles less
than or equal to 2.5 micrometers in aerodynamic diameter) to 35
micrograms per cubic meter ([micro]g/m\3\) for the 24-hour standard and
12 [micro]g/m\3\ for the annual standard (71 FR 61144, October 17,
2006) (78 FR 3086, January 15, 2013) \1\. The NAAQS, promulgated under
section 109 of the CAA, are a key component of air quality protection
under the CAA. PM2.5 particles, measuring about 30 times
less than the diameter of a human hair, are particularly harmful to
human health as they can travel through the blood stream and cause
significant health risks.
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    \1\ The CAA requires EPA to periodically review the standards to
ensure that they provide adequate health and environmental
protection, and to update those standards as necessary. The EPA is
currently reconsidering a previous decision to retain the PM NAAQS,
which were last strengthened in 2012 and expects to issue a proposed
rulemaking in 2022 and a final rule in 2023. Should the NAAQS be
revised, the EPA will work with Tribes to designate Indian
reservations and evaluate whether further revisions to the FARR are
necessary or appropriate.
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    Since the PM2.5 NAAQS have been revised, more Indian
reservations in the Pacific Northwest are at risk of a
``nonattainment'' designation, which may result in the development and
implementation of plans containing stricter air pollution reduction
measures. To reduce emissions to help these areas continue to maintain
the NAAQS and better protect public health and welfare on Indian
reservations in the Pacific Northwest, the EPA is proposing revisions
to existing rules and new rule sections to address certain previously
unregulated sources of particulate matter emissions. These proposed
regulations are described in more detail in Section II of this
preamble.
    In developing these proposed revisions, the EPA has two objectives
in addition to those discussed in the previous paragraphs of this
section. First, the EPA is proposing only those regulations that, to
the extent practicable, minimize the implementation burdens upon the
EPA and the regulated community while establishing requirements that
are unambiguous and enforceable. Second, the EPA anticipates that these
regulations can serve as models for Tribes as they continue to develop
their own air quality programs. To that end, the regulations are
designed so they can be implemented by a small air pollution agency and
can be readily delegated to a Tribe for implementation.
    As with the initial FARR promulgation, the EPA does not intend, nor
does it expect, the proposed revisions to impose significantly
different regulatory burdens upon industry or residents within Indian
reservations than those imposed by the rules of State and local air
agencies in the surrounding areas. Instead, the intent remains to
ensure that people living within Indian reservation boundaries receive
equivalent air quality protection, and that emissions from sources
located within Indian reservations are controlled to levels similar to
those of sources located outside the Indian reservations.

C. Areas Covered by the Rules

    The FARR generally applies to any person who owns or operates an
air pollution source within the exterior boundaries of an Indian
reservation in Idaho, Oregon, or Washington as set forth in 40 CFR part
49, subpart M Implementation Plans for Tribes--Region X. As discussed
in the Tribal Authority Rule (TAR) (63 FR 7254, 7257-58, February 12,
1998), the EPA interprets the term ``reservation'' consistent with U.S.
Supreme Court case law to include both (1) lands that have been
formally designated as a reservation by, for example, treaty, Federal
statute, or Executive Order of the President (often referred to as
``formal reservations'') and (2) lands held in trust by the United
States for the benefit of a Tribe, even if such lands have not been
formally designated as a reservation (often referred to as ``informal
reservations'') (40 CFR 49.2(b); see also Arizona Public Service

Co. v. EPA, 211 F.3d 1280, 1292-94 (D.C. Cir. 2000), cert. denied, 532
U.S. 970 (2001)). The preambles to the proposed and final FARR
promulgated in 2005 indicate that the EPA intended that the FIP for a
particular Tribe would apply to trust lands, even if not formally
designated as a reservation (70 FR 18074, 18076-77, April 8, 2005) (67
FR 11748, 11749-11750, March 15, 2002). This intention, however, may
not have been clear in light of language included in the final response
to comments document for the FARR, ``Response to Comments on the March
15, 2002 Proposal for Federal Implementation Plans under the Clean Air
Act for Indian Reservations in Idaho, Oregon, and Washington,'' comment
A.3, indicating that the EPA intended the FARR to apply only to the
formally designated reservation of a particular Indian Tribe.
    The EPA believes it is important to make clear that the
environmental protections provided by the FARR extend to
``reservations,'' as that term has been interpreted by EPA under CAA
Section 301(d)(2)(B) and the TAR, that is, including any land held in
trust for a covered Tribe that has not been formally designated as a
reservation. The FARR currently defines ``Indian country,'' which
includes Indian reservations as one element of Indian country but does
not have a stand-alone definition of ``Indian reservation.'' The EPA is
proposing to add a definition of ``Indian reservation'' in the FARR
that defines ``Indian reservation'' according to the language of the
Indian reservation element of Indian country and is thus consistent
with the definition of ``Federal Indian Reservation,'' ``Indian
Reservation,'' or ``Reservation'' under the TAR (40 CFR 49.2(c)). To
eliminate any questions as to where the FARR applies, the EPA proposes
to include in the FARR definition of Indian reservation the following
explanatory language: ``Under this definition, Indian reservations
include lands held in trust by the United States government for the
benefit of an Indian Tribe even if the trust lands have not been
formally designated as a reservation''. The inclusion of this
additional explanatory language is not intended to make the use of the
term ``Indian reservation'' in the FARR differ in any respect from that
term as used and defined in the TAR, but rather to ensure the meaning
of the term ``Indian reservation'' under the FARR is clear to the
regulated community. Because a FIP under the FARR applies ``within''
the reservation of the specified Tribe, any newly established
reservation lands for the specified Tribe will become automatically
subject to the FIP for that Tribe as soon as the lands obtain their
reservation status. The EPA has added language to make this clear.
    Recognizing the lack of clarity on these issues under the existing
language in the FARR, however, the proposed revisions would establish a
date after which subject sources on land held in trust for a Tribe that
has not been formally designated as a reservation must meet the
requirements of the FARR.\2\ In general, that date will be the
effective date of the final rule promulgating these revisions. However,
for rules that provide a period of time before subject sources are
required to comply, the compliance dates for newly subject sources will
be specified in those rules. As currently is the case, however, the
FARR will not apply to the reservation of a newly-recognized Indian
Tribe in Idaho, Oregon, or Washington until a FIP has been promulgated
for the reservation of that Tribe, which would occur only after
coordination and consultation with the affected Tribe and a rulemaking
with notice and an opportunity for public comment.
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    \2\ We estimate that there are approximately 31 stationary
sources, such as casinos and a coffee roaster, located on such lands
covered or proposed to be covered by the FARR. We are not aware of
any such sources that would require additional control or monitoring
equipment to comply with the FARR, as revised. The EPA is not
proposing to revise the FARR to apply to other areas of Indian
country, namely, individual Indian allotment lands that are located
outside the exterior boundaries of a reservation or dependent Indian
communities that do not also qualify as reservations. The EPA is not
currently aware of any sources on those types of land outside of
reservations in Idaho, Oregon, or Washington to which the FARR need
apply. If in the future, EPA becomes aware of air quality concerns
for Indian country outside of ``Indian reservations'' as defined in
the FARR, EPA may propose other requirements that are deemed
necessary or appropriate.
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    In addition to this clarification, the EPA is proposing to make the
FARR, as revised, applicable through the promulgation of FIPs to the
reservation lands of two Federally recognized Indian Tribes that did
not have reservation lands when the FARR was originally promulgated in
2005. At that time, the Cowlitz Indian Tribe and the Snoqualmie Indian
Tribe had both received Federal recognition but did not have
reservation lands. The Cowlitz Indian Reservation was established on
March 9, 2015, and covers 152 acres in Clark County, Washington (80 FR
70250, November 13, 2015). The Snoqualmie Indian Reservation was
established on October 20, 2006, covering approximately 55.84 acres in
King County, Washington (71 FR 63347, October 30, 2006). In
anticipation of this proposed revision, the EPA met informally and had
discussions with both Tribes to explain the FARR and the proposed
revisions to make the FARR apply to their Indian reservations and
received each Tribe's input.
    The EPA is also proposing to make the FARR, as revised, applicable
through the promulgation of a FIP to the lands held in trust for the
Samish Indian Nation. When the FARR was promulgated in 2005, the Samish
Indian Nation had received Federal recognition but did not have trust
lands or a formally designated reservation. During the development of
the FARR revisions, the EPA had discussions with the Samish Indian
Nation about having the FARR apply to their trust lands. Applying the
FARR to the lands held in trust for the Samish Indian Nation would be
consistent with the clarifications discussed in this section to ensure
the FARR applies to any land held in trust for a Tribe that has not
been formally designated as a reservation. The specific rule sections
that apply on each of these Indian reservations would be incorporated
by reference into reservation specific FIPs at 40 CFR part 49, subpart
M, as shown in the proposed rulemaking changes.

D. Relationship Between Part 49, Subpart C and Subpart M

    The FARR has been structured with the ``modular'' approach
described in the TAR to allow for both variation among Indian
reservations and to facilitate the development and approval of TIPs to
replace all or part of the Federal rules. Each section in subpart C,
e.g., 40 CFR 49.131 General Rule for open burning, is effectively a
``stand-alone'' rule. The EPA promulgated a FIP in subpart M for each
reservation, and each FIP incorporates specific rule sections that are
tailored on a reservation-by-reservation basis. Although most of the
rules in the FIPs constitute a ``base program'' applicable to all
Indian reservations in Idaho, Oregon, and Washington, some of the FIPs
include ``additional'' reservation specific rules where specific needs
exist or where the EPA determined, in coordination and consultation
with the relevant Tribe, that a more stringent provision than would
otherwise apply is appropriate. For example, the rule for particulate
matter emissions from wood products industry sources was promulgated in
2005 for Indian reservations that had existing wood products industry
sources or for those where such sources might be expected to locate,
and where the EPA determined, in coordination and consultation with the
affected Tribe, that more stringent provisions were

appropriate (67 FR 11748, 11750-11751, 11753, 11758, March 15, 2002).
The proposed revisions maintain this structure.
    Table 1 lists all of the existing rules and proposed new rules
under the FARR, including the ``base program'' rules that apply or are
proposed to apply on all Indian reservations in Idaho, Oregon, and
Washington, as well as the ``additional'' reservation specific rules
that apply or are proposed to apply on some, but not all such Indian
reservations (further discussed in Section II. of this preamble).

                                   Table 1--Base Program and Additional Rules
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                                                                                Additional
                Section No.                                 Title                  Base program        rules
----------------------------------------------------------------------------------------------------------------
Sec.   49.123..............................  General provisions.................               x  ..............
Sec.   49.124..............................  Rule for limiting visible emissions               x  ..............
Sec.   49.125..............................  Rule for limiting the emissions of                x  ..............
                                              particulate matter.
Sec.   49.126..............................  Rule for limiting fugitive                        x  ..............
                                              particulate matter emissions.
Sec.   49.127..............................  Rule for woodwaste burners.........  ..............               x
Sec.   49.128..............................  Rule for limiting particulate        ..............               x
                                              matter emissions from wood
                                              products industry sources.
Sec.   49.129..............................  Rule for limiting emissions of                    x  ..............
                                              sulfur dioxide.
Sec.   49.130..............................  Rule for limiting sulfur in fuels..               x  ..............
Sec.   49.131..............................  General rule for open burning......               x  ..............
Sec.   49.132..............................  Rule for large open burning permits  ..............               x
Sec.   49.133..............................  Rule for agricultural burning        ..............               x
                                              permits.
Sec.   49.134..............................  Rule for forestry and silvicultural  ..............               x
                                              burning permits.
Sec.   49.135..............................  Rule for emissions detrimental to                 x  ..............
                                              public health or welfare.
Sec.   49.137..............................  Rule for air pollution episodes....               x  ..............
Sec.   49.138..............................  Rule for the registration of air                  x  ..............
                                              pollution sources and the
                                              reporting of emissions.
Sec.   49.139..............................  Rule for non-Title V operating                    x  ..............
                                              permits.
Sec.   49.140..............................  Rule for residential wood burning                 x  ..............
                                              devices.
Sec.   49.141..............................  Rule for curtailment of residential  ..............               x
                                              wood burning devices for specific
                                              areas.
Sec.   49.142..............................  Rule for small open burning annual   ..............               x
                                              permits.
Sec.   49.143..............................  Permit by rule for small open burns  ..............               x
----------------------------------------------------------------------------------------------------------------

    This structure also facilitates the delegation under 40 CFR 49.122
of certain FARR rules to Tribes that are building air quality programs.
A delegation agreement authorizes a Tribe, with Federal assistance, to
administer the Federal program, with EPA taking any appropriate
enforcement. This approach allows the EPA to establish requirements
tailored to local needs that can be effectively implemented through a
partnership between the EPA and the Tribe. Delegation of the FARR helps
Tribes gain experience in air quality management while deciding whether
to adopt their own rules and regulations. To date several Tribes are
assisting the EPA with implementation of one or more FARR rules under a
delegation agreement with the EPA. A more detailed discussion on Tribal
delegations can be found in 67 FR 11748, 11751-52, March 15, 2002.
There are no substantive revisions proposed to the delegation
provisions of the FARR.
    The modular structure of the FARR also supports Tribes that choose
to develop their own air quality program and submit it to the EPA for
approval as a TIP. Under section 49.7(c) of the TAR, Tribes that are
approved as meeting the eligibility criteria for Treatment as a State
have the option of developing severable elements of a TIP and
submitting those elements to the EPA for approval under the CAA. This
allows the EPA to approve a Tribal rule covering a particular source
type or activity and revoke the corresponding FARR rule from the FIP,
while still leaving in place the FARR rules for other sources and/or
activities. This approach allows for an easy incremental transition
from Federal regulations to EPA-approved Tribal rules. As an example,
on November 24, 2014, the EPA approved a TIP submitted by the Swinomish
Indian Tribal Community establishing a Tribal program applicable to all
persons within the exterior boundaries of the Swinomish Reservation
regulating open burning (79 FR 69763, November 24, 2014). In the same
action, EPA rescinded the FARR General rule for open burning (40 CFR
49.131) from the Swinomish Reservation FIP such that only the Swinomish
Tribal open burning rule applies.

II. Proposed FIP Revisions

A. Proposed Revisions and New Rules

    As discussed in Section I.A. of this preamble, the EPA is proposing
to revise several of the rules originally promulgated in 2005 that
comprised the original ``base program'' rules that apply to all Indian
reservations in Idaho, Oregon, and Washington and is proposing to
promulgate one new ``base program'' regulation. The EPA is also
proposing to revise several of the ``additional'' reservation specific
rules originally promulgated in 2005 that apply on some, but not all,
Indian reservations in Idaho, Oregon, and Washington, and the EPA is
proposing to promulgate several new additional rules that would only
apply, in coordination and consultation with the relevant Tribes, on
specific Indian reservations where the EPA finds that the rules are
necessary or appropriate. See Section II.B. of this preamble for a more
detailed discussion on the additional rules proposed for specific
Indian reservations. Each of these proposed new sections address
emission sources that contribute to high levels of particulate matter
emissions and protect air quality from the potential for significant
deterioration caused by the release of particulate matter.
    The following paragraphs summarize the substantive proposed changes
for each of the sections of the existing and new rules that will
comprise the ``base program'' and the existing and new additional rules
that apply only on specific Indian reservations.
Administrative Changes
    The EPA has made minor administrative revisions throughout the FARR
to ensure consistency in the use of terms and structure in similar
provisions and to make other minor changes, where appropriate. For
example, the proposed revisions replace the title of the FARR from
``General

Rules for Application to Indian Reservations in EPA Region 10'' with
``General Rules for Application to Indian Reservations in Idaho,
Oregon, and Washington'' to better reflect the geographic scope of the
FARR. In 40 CFR 49.121 Partial delegation of administrative authority
to a Tribe, the revisions clarify that a delegation may cover all or
part of an Indian Reservation. As another example, at the end of each
section of the current rules is a subparagraph that lists terms used in
that rule and points to 40 CFR 49.123 General provisions for the
definitions of these terms. The EPA is proposing to remove these
sections because this itemized list of defined terms has not proven to
be helpful and in fact sometimes has contributed to confusion.
    Each rule in the FARR includes a section describing the purpose of
the rule. The EPA is revising the statements of purpose in some of the
rules to make them consistent. The EPA has also made an administrative
change in subpart M in the FIP for the Spokane Reservation. The EPA has
added to subpart M language that is currently in 40 CFR part 52,
subpart WW (Washington State Implementation Plan), making clear that
the Spokane Indian Reservation is designated as a Class I area for the
purposes of preventing significant deterioration of air quality. This
proposed rulemaking does not propose changes to this designation, but
instead simply adds the reference to the designation in the FIP for the
Spokane Reservation because this designation affects new source review
permitting on and near the Spokane Reservation.
    Section 49.123 General provisions. This section contains the
definitions for specific terms used in the FARR, specifies the general
requirements for testing, monitoring, recordkeeping and reporting,
specifies requirements for performance tests, and identifies ASTM,
International (ASTM) materials that are incorporated by reference in
these rules.
    Definitions. The EPA is proposing to add, revise, or remove certain
definitions in this section. The following new or revised terms are not
discussed here but are discussed in the sections of this document that
discuss the substantive revisions of the rules: the definition for
Indian reservation is discussed in Section I.C. of this preamble and
the definitions for Cooking fire, Large open burn or burning, Non-title
V operating permit, Orchard heating device, Recreational fire, and
Small open burn or burning are discussed in the relevant rule sections
in Section II.A. of this preamble.
    New definitions. The EPA is proposing to add several new
definitions to 40 CFR 49.123 to provide for a better understanding of
the existing rule language and define applicable terms used in new
sections of the FARR. The EPA proposes to add the definition Hog fuel
or hogged fuel, which means wood chips or shavings, residue from
sawmills, and other wood processing residue. This is intended as a
clarification of the list of items included in the definition of wood,
to carry out the EPA's original intent and to provide a more complete
understanding of the items considered wood and derivatives of wood.
    To implement the authority in 40 CFR 49.129(d) authorizing the EPA
to make certain changes to testing, monitoring, recordkeeping and
reporting requirements under the FARR, the EPA is cross-referencing the
definitions of Intermediate change to monitoring, Major change to
monitoring, Minor change to monitoring, Minor change to recordkeeping/
reporting, and Minor change to test method in 40 CFR 63.90, which are
used for similar purposes.
    With the addition of 40 CFR 49.140 Rule for residential wood
burning devices and 40 CFR 49.141 Rule for curtailment of residential
wood burning devices for specific areas, the EPA is also introducing a
new definition for Residential wood burning devices. This definition,
for purposes of the FARR, means any wood burning device that supplies
heat to a single-family residence or is installed in an individual unit
of a multiple unit structure such as a condominium, apartment, duplex,
multiplex, hotel, motel, or resort. This includes but is not limited
to, wood stoves, fireplaces, fireplace inserts, residential wood
heaters, residential hydronic heaters, residential forced air furnaces,
and residential central heaters. The EPA also added definitions for
Residential wood heater, Residential central heater, Residential forced
air furnace, and Residential hydronic heater by cross-referencing the
definitions of these same terms in 40 CFR 60.531 and 60.5473 of the EPA
New Source Performance Standards for New Residential Wood Heaters and
New Residential Hydronic Heaters and Forced-Air Furnaces as amended (40
CFR part 60, subpart AAA and 40 CFR part 60, subpart QQQQ).
    Revised definitions. In addition to adding new definitions, the EPA
is also revising several definitions to provide clarification for
better understanding and ease of implementation. The EPA is proposing
to revise the definition for Agricultural activities to include
specific examples of activities that are not considered agricultural
activities (e.g., hop drying in kilns and distillation of mint oil). As
the EPA has previously advised the regulated community, the act of
distilling mint or drying hops is not considered an agricultural
activity under the FARR, and the proposed revisions help clarify this
point.\3\ In addition, to eliminate confusion about whether fugitive
emissions from tilled land are or are not regulated, the EPA is
proposing to remove the reference to tilled land as an example of
fugitive dust in the Fugitive dust definition. Although EPA considers
the tilling of land to generate fugitive dust, ``agricultural
activities,'' which includes the tilling of land, are expressly exempt
from 40 CFR 49.126 Rule for limiting fugitive particulate matter
emissions. The EPA is revising the definition of Grate cleaning by
clarifying that, in addition to allowing for the removal of ash from
fireboxes, grate cleaning also allows for the removal of other non-
combustibles (e.g., rocks) from the firebox. Finally, the EPA is
revising the definition of forestry and silvicultural burns by
clarifying that the term includes prescribed fire, as that term is
defined in 40 CFR 50.1(m).
---------------------------------------------------------------------------

    \3\ See letter from EPA Region 10 to the Administrator of the
Washington Hops Commission, regarding ``Exemption for ``Agricultural
Activities'' under the Federal Air Rules for Reservations (FARR),''
date February 2, 2007; letter from EPA Region 10 to the Executive
Director of the Washington Mint Commission, regarding ``Exemption
for ``Agricultural Activities'' under the Federal Air Rules for
Reservations (FARR),'' date February 5, 2007.
---------------------------------------------------------------------------

    Deleted definitions. The EPA is proposing to remove the definitions
of Garbage and Refuse because they are no longer used to define what
type of open burning is prohibited in 40 CFR 49.131. As discussed in
this section, we are proposing to restructure 40 CFR 49.131 General
rule for open burning by removing the list of what cannot be burned and
instead providing a list of what is allowed to be burned. We are also
proposing to remove the definition of Smudge pot because smudge pots
are no longer directly referred to in the FARR. Instead, in 40 CFR
49.123 the newly proposed definition Orchard heating device or orchard
heater includes smudge pots as an example of a type of orchard heating
device.
    Testing, monitoring, recordkeeping, and reporting. During the
course of implementing the FARR, questions arose regarding whether
Region 10 could approve alternatives or exceptions to the requirements
for testing, monitoring, recordkeeping, or reporting that are specified
in the FARR. Unlike some EPA rules under the CAA (e.g., 40 CFR part 60,
40 CFR part 63), the FARR as originally enacted in 2005 did not include
the authority or procedures for

requesting or approving alternatives, exceptions, waivers, and similar
actions for testing, monitoring, recordkeeping, and reporting required
by the FARR.
    Region 10 is proposing to add such authority and procedures to 40
CFR 49.123 General Provisions. These new provisions would provide
Region 10 with authorities similar to those found in 40 CFR parts 60
and 63. Specifically, the EPA proposes adding provisions to allow the
approval of the use of a test method with minor changes in methodology,
the approval of shorter sampling times or smaller sample volumes when
necessitated by process variables or other factors, and the waiver of
the requirement for source tests because the owner or operator of an
affected source has demonstrated by other means to the Regional
Administrator's satisfaction that the affected source is in compliance
with the relevant standard. In addition, the EPA proposes adding
authority to approve minor changes in methodology for the specified
monitoring requirements and procedures, as well as intermediate or
major changes or alternatives to any monitoring requirements or
procedures. Lastly, the EPA proposes adding authority to approve minor
changes to recordkeeping or reporting for the specified requirements
and procedures, as well as to waive recordkeeping or reporting
requirements upon written application to the Regional Administrator if,
in the Regional Administrator's judgment, the affected source is
achieving the relevant standard(s). A waiver of any recordkeeping or
reporting requirement granted under this provision may be conditioned
on other recordkeeping or reporting requirements deemed necessary by
the Regional Administrator.
    Performance tests. The EPA is also proposing to add general
provisions that specify requirements for performance tests that apply
where the applicable standard or test method does not include such
requirements. These requirements specify, for example, the number of
valid test runs for a performance test and are consistent with the
requirements EPA includes in permits and regulations where performance
testing is required.
    ASTM standards. In 40 CFR 49.123(g), the EPA is proposing to update
the ASTM standards that are used in and incorporated by reference in
the FARR to reflect the most current version of the standards. See
Section IV. of this preamble for further discussion of these revisions.
    Section 49.124 Rule for limiting visible emissions. This section
limits the visible emissions of air pollutants from certain air
pollution sources to control emissions of particulate matter. The EPA
proposes to revise this section in several respects. First, the EPA is
clarifying that the rule limiting visible emissions does not apply to
activities associated with single-family residences or residential
buildings with four or fewer dwelling units. Although the current rule
exempts furnaces and boilers used to heat single family residences and
residential buildings with four or fewer dwelling units, the EPA never
intended to regulate other emissions associated with residential
activities, such as home workshops. The EPA is also clarifying that the
rule does not apply to any particulate matter emissions from public
roads and not just to fugitive dust from public roads. The EPA did not
intend to regulate any emissions from public roads under the FARR. The
current rule unintentionally limits the exemption to only fugitive
dust. However, there are other emissions that come from roads that do
not come from the tailpipe of a motor vehicle or nonroad vehicle, such
as emissions associated with the application of dust suppressants. This
change clarifies that all particulate emissions from public roads, not
only fugitive dust, are exempt from the visible emission limit.
    Second, the EPA is proposing to narrow the exemption for
agricultural activities so that orchard heating devices are no longer
exempt from the visible emissions limit. An orchard heating device is
defined as a fuel burning device capable of being used for frost-
prevention or protection in orchards, vineyards, field crops, or truck
crops, and includes smudge pots and open-pot heaters. The diesel fuel
sometimes used in these devices produces the thick heavy smoke that
some believe prevents frost damage. Orchard heating devices are
typically used in the spring when plants are budding and an atmospheric
inversion traps cold air at the surface. The inversion also traps air
pollutants, such as the thick smoke generated by some types of orchard
heating devices, and can result in unhealthy levels of air pollution.
Under the visible emissions rule currently in effect, orchard heating
devices are covered by the exemption for agricultural activities
because such devices are used as part of the usual and customary
activities in growing crops. The EPA's ongoing evaluation of the FARR
and input from Tribes on reservations where orchard heating devices are
used identified concerns with air pollution from these unregulated
sources of particulate matter.
    This proposed revision would therefore require that visible
emissions from orchard heating devices not exceed 20% opacity, averaged
over any consecutive 6-minute period, and would apply to any person who
owns or operates an orchard heating device. We expect that there are
categories of orchard heating devices that will not be capable of
complying with the 20% opacity standard and this action, if finalized,
would therefore effectively prohibit the continued use of such devices.
Since the FARR was promulgated in 2005, however, cleaner and more
effective methods of orchard heating have become more readily
available. Newer alternatives such as propane-powered fans and propane
heaters are becoming accepted and reliable alternate methods of orchard
heating. These cleaner devices are capable of complying with the
visible emission limit and, as such, will help minimize air pollution
in areas that are already dealing with high levels of PM2.5
and PM10. Other State and local air agencies have similar
provisions.
    To ensure current users of orchard heating devices that cannot
comply with the visible emission standard have adequate time to find
alternatives to the use of such devices, the proposed provision of 40
CFR 49.124 requiring that visible emissions from an orchard heating
device not exceed 20% opacity would not go into effect until 3 years
after this revision is finalized and becomes effective. Furthermore, to
ensure that this new requirement does not cause an unreasonable burden
on any person, the rule includes a provision that would allow the
Regional Administrator to grant a two-year extension (with no limit on
the number of extensions) provided that the person demonstrates that
there is no alternative that is reasonably available that can comply
with the 20% opacity limit. In the interim, the EPA intends to work
with Tribal air programs to provide outreach to orchards affected by
this rule and identify sources of funding that may help lower the costs
for alternate methods of orchard heating.
    Section 49.125 Rule for limiting emissions of particulate matter.
The purpose of this section is to reduce particulate matter by setting
emission limits for certain air pollution sources that operate within
an Indian reservation. The EPA is proposing language to clarify that
this rule only applies to emissions from a stack as defined in 40 CFR
49.123. The EPA is

also proposing to revise the list of sources specifically exempt from
this rule in several respects. As with the limitation on visible
emissions discussed in 40 CFR 49.124, the EPA never intended to
regulate residential activities, such as home workshops under this
section. We are therefore proposing to add an exemption for activities
associated with single-family residences or residential buildings with
four or fewer dwelling units. Second, with the clarification that this
rule only applies to particulate matter emissions from a stack, the EPA
has deleted open burning from the list of exempt sources, because an
open burn, by definition, does not have a ``stack.'' Third, with the
clarification that this rule only applies to particulate matter
emissions from a stack, the EPA is adding orchard heating devices to
the list of exempt sources. Unlike the Rule for Limiting Visible
Emissions (40 CFR 49.124), this rule does not exempt agricultural
activities. By its terms, this section applies only to stationary
sources with stacks. (see 40 CFR 49.125(d)(1), (2), and (3)). Most
agricultural activities, as defined in the FARR, are not subject to the
numeric particulate matter emission limits because such activities do
not have ``stacks'' that emit air pollution. However, some orchard
heating devices, although within the definition of agricultural
activities, do have short ``stacks.'' The EPA is therefore adding
orchard heating devices to the list of exemptions so that orchard
heating devices will continue to be exempt from the numeric particulate
matter emission limits and other requirements of this section. Given
that orchard heating devices are relatively small in comparison to many
other stationary sources with stacks, are portable, are used only
seasonally, and that conducting source testing using the reference test
methods in this section on orchard heating devices could be
challenging, the EPA believes that limiting particulate matter
emissions from orchard heating devices with a limitation on visible
emissions under 40 CFR 49.124, rather than a limit on particulate
matter emissions, is appropriate.
    In addition to proposing to add these two exemptions to the
applicability of this section, the EPA is updating the reference method
for determining compliance to explicitly provide that EPA Methods 1
through 4, as appropriate, must be used to calculate the volumetric
flow, oxygen content, and moisture content of the samples in
conjunction with EPA Method 5. Although EPA Method 5 specifies when the
use of EPA Methods 1 through 4 are required, the EPA is making the
reference explicit in this section for ease of use. A complete
description of the test methods discussed in this paragraph can be
found in appendix A to 40 CFR part 60.
    Finally, the EPA is proposing to correct an inadvertent error in
the particulate matter emission limits that resulted from failure to
use the same number of significant figures for the grams per dry
standard cubic meter (g/dscm) limits and the grains per dry standard
cubic feet (gr/dscf) limits. The g/dscm limits had two significant
figures whereas the gr/dscf limits only had only one significant
figure, which resulted in the limits being slightly different in
stringency. EPA is proposing to correct this error by adding a second
significant figure to the gr/dscf limits.
    Section 49.126 Rule for limiting fugitive particulate matter
emissions. This section limits fugitive particulate matter emissions by
requiring reasonable precautions to prevent such emissions. Under the
current language of the fugitive particulate matter emissions rule, it
is unclear when portable sources, such as portable rock crushers and
asphalt plants, are required to conduct their fugitive particulate
emission surveys and prepare and update their written plans to prevent
fugitive particulate matter emissions. Therefore, the EPA is proposing
revisions that specify when the surveys and plans are required to be
conducted and submitted for portable sources in a manner that is
consistent with the temporary and transient nature of portable sources.
For example, the EPA is proposing to specifically require portable
sources to conduct a survey within 7 days after beginning operation at
a new location and to conduct an annual survey thereafter to identify
sources of fugitive particulate matter emissions. Additionally, for
portable sources, the written plan specifying the reasonable
precautions and procedures to prevent fugitive particulate matter
emissions is required prior to beginning operation at a new location
and must be updated within 7 days of a completed survey. The EPA is
also clarifying that, for all other sources, the written plan to
prevent fugitive emissions must be prepared within 30 days after
completing the required survey. All plans for subject sources must be
reviewed and updated by the owner or operator at least annually after
each survey and more frequently if warranted due to changes.
    The EPA is also proposing to add language to clarify that the
written plan must be implemented as soon as practicable. The current
rule requires a source to implement its written plan, including
installing any control measures that were identified as reasonable
precautions, but does not include language regarding when the plan
needs to be implemented.
    In addition, if the facility is required to be registered under 40
CFR 49.138, the EPA is proposing to require that a copy of the most
recent fugitive particulate matter survey and current fugitive
particulate matter plan be submitted with the annual registration.
Under the proposed revisions, a new source or new operation will be
required to submit a copy of the fugitive particulate matter survey and
plan to the EPA within 90 days of beginning operation. The proposed
revisions also provide that sources must maintain a copy of the survey
and plan on site.
    Lastly, the EPA is proposing to establish that a revision to the
plan may be required if the EPA determines that the plan is not
adequate to prevent or minimize fugitive particulate matter emissions.
All of the proposed revisions are designed to enhance compliance and
enforceability of the rule.
    Section 49.127 Rule for woodwaste burners. This section phases out
the operation of woodwaste burners, and in the interim limits the
visible emissions from woodwaste burners. There are no proposed changes
to this section except for the revisions with respect to the
applicability date discussed here and non-substantive and other
administrative changes discussed elsewhere in this preamble. This
section continues to only apply on the Colville Reservation and on the
Nez Perce Reservation, as shown in Table 2 in section B of this
preamble. The effective date of this section for any lands held in
trust for the Colville or Nez Perce Tribes that have not been formally
designated as a reservation, will be the effective date of the final
rule and, as such, any woodwaste burners that are located on such lands
will be required to be dismantled within 2 years from the effective
date of the final rule.
    Section 49.128 Rule for limiting particulate matter emissions from
wood products industry sources. The purpose of this section is to limit
the condensible particulate matter from high temperature processes at
wood products facilities that would not be captured by the test method
required for demonstrating compliance with the particulate matter
emission limits in 40 CFR 49.125. This section only applies to emission
units at wood products facilities that emit at high temperatures.
Currently 40 CFR 49.128 specifies that

the reference method for determining compliance with the
PM10 limits is EPA Method 202 in conjunction with EPA Method
201A. These methods are found in appendix M of 40 CFR part 51.
    The EPA is proposing to update the reference method for determining
compliance. The EPA is clarifying that EPA Methods 1 through 2H, as
appropriate, must be used to calculate the volumetric flow of the
samples in conjunction with EPA Methods 202 and 201A. A complete
description of these additional test methods can be found in appendix A
to 40 CFR part 60.
    This section continues to apply on the Colville Reservation and the
Nez Perce Reservation, as shown in Table 2 in Section B of this
preamble. The EPA is also proposing that 40 CFR 49.128 be applied on
the Coeur D'Alene Reservation because the operations of a wood products
facility located on the Coeur D'Alene Reservation may contribute to
elevated levels of particulate matter.
    Section 49.129 Rule for limiting emissions of sulfur dioxide. This
section limits the amount of sulfur dioxide (SO2) that may
be emitted from air pollution sources operating within an Indian
reservation. The EPA is proposing to clarify that this rule only
applies to emissions from a stack.
    As under 40 CFR 49.125 and for the same reasons, we are also
proposing to clarify that orchard heating devices are exempt from this
section.
    The EPA is also proposing to update the reference methods for
determining compliance with the SO2 emission limits
established in the current rule. The EPA is clarifying that EPA Methods
1 through 4, as appropriate, must be used to calculate the volume,
oxygen content and moisture content of the sample in conjunction with
EPA Methods 6, 6A, 6B and 6C. A complete description of these
additional test methods can be found in appendix A to 40 CFR part 60.
    Section 49.130 Rule for limiting sulfur in fuels. This section
limits the amount of sulfur contained in fuels that are burned at
stationary sources operating within an Indian reservation to control
emissions of SO2. The EPA is proposing to update the
reference methods used to determine compliance with the sulfur emission
limits for fuel. We are updating the reference methods in paragraph (e)
of this section to incorporate into this rule the most recent versions
of the ASTM methods for determining the amount of sulfur in fuel oil or
liquid fuels, coal, solid fuels, and gaseous fuels.
    In addition, the EPA proposes to revise the sulfur limit for
gaseous fuels by deleting the 1.1 grams per dry standard cubic meter
(dscm) limit and retaining only the 400 parts per million (ppm) limit.
The current rule establishes a limit for sulfur in gaseous fuels in two
different sets of units (grams/dscm and ppm) that were intended to be
equivalent in stringency. However, because the proper number of
significant figures for the grams/dscm limit were not included when the
FARR was promulgated, the two are not equivalent. This resulted in
confusion as to whether sources had to comply with both limits, the
more stringent limit, or a limit of their choice. The proposed
revisions correct this error and make this standard consistent with the
EPA's intent in promulgating this emission standard in 2005.
    Finally, the EPA is proposing to remove the language in 40 CFR
49.130(f)(1)(iii) that provided sources burning coal or solid fuels the
opportunity to request a waiver of the monitoring requirement or
request an alternative sampling program because generally applicable
language for requesting alternatives and waivers is now included in 40
CFR 49.123 General Provisions.
    ASTM standards. In 40 CFR 49.130(g), the EPA is proposing to update
the ASTM standards that are used in and incorporated by reference in
the FARR to reflect the most current version of the standards. See
Section IV. of this preamble for further discussion of these revisions.
    Section 49.131 General rule for open burning. This section phases
out the operation of woodwaste burners, and in the interim limits the
visible emissions from woodwaste burners. There are no proposed changes
to this section except for the revisions with respect to the
applicability date discussed here and non-substantive and other
administrative changes discussed elsewhere in this preamble. This
section continues to only apply on the Colville Reservation and on the
Nez Perce Reservation, as shown in Table 2 in section B of this
preamble. The effective date of this section for any lands held in
trust for the Colville or Nez Perce Tribes that have not been formally
designated as a reservation, will be the effective date of the final
rule and, as such, any woodwaste burners that are located on such lands
will be required to be dismantled within 2 years from the effective
date of the final rule, as well as in the following burn permit
sections.\4\
---------------------------------------------------------------------------

    \4\ The EPA also notes that nothing in the FARR or the proposed
revisions restricts the exclusion of air quality monitoring data
influenced by exceptional events as provided in 40 CFR 50.14.
---------------------------------------------------------------------------

    Section 49.132 Rule for large open burning permits. The FARR
promulgated in 2005 had a General rule for opening burning (discussed
in 40 CFR 49.131), which specified conditions under which open burning
could be conducted but did not require prior approval. The FARR also
had a rule setting forth a program for permitting, or granting prior
approval of, general open burns. This rule was designed only for Indian
reservations where the EPA, in coordination and consultation with the
relevant Tribe, determined that a general open burning permitting
program was necessary or appropriate, and was generally expected to
include a delegation of authority from the EPA to the Tribe, under 40
CFR 49.122 for implementation of the general open burning permit
program (67 FR 11748, 11751, March 15, 2022). This general open burning
permit rule was promulgated to apply on the Nez Perce Reservation and
the Umatilla Indian Reservation. These Tribes have been implementing
the rule for general open burning permits on their respective Indian
reservations under a delegation with the EPA for more than 15 years.
    The EPA is proposing to revise the rule for permitting general open
burns by replacing it with three rules for different types of open
burns and different types of open burning approval processes: 40 CFR
49.132 Rule for large open burning permits, 40 CFR 49.142 Rule for
small open burning annual permits and 40 CFR 49.143 Permit by rule for
small open burns. The EPA is proposing these different open burning
permit options based on input from these Tribes, other Tribes that have
expressed interest in seeking delegation of permitting general open
burning on their Indian reservations, and the EPA's experience in
working with the delegated Tribes in implementing this rule. The EPA
has concluded that options that distinguish between large and small
open burns and, for small open burns, allow for an annual permit or
coverage under a permit by-rule better allow for the scaling of
requirements to the potential air pollution impact of open burns and
the resources of implementing agencies.
    Only materials that may be burned under 40 CFR 49.131 General rule
for open burning may be burned in a permitted large or small open burn.
As under 40 CFR 49.131, compliance with the permitting requirements
rests with the person who is conducting the burn as well as the owner
and lessee, if any, of the property on which the burn is

conducted to ensure parties that may be responsible for burning
decisions on a given property are responsible for complying with the
burn permitting rules, where applicable.
    The proposed ``large open burning'' permit rule is very similar to
the current general open burning permit rule in 40 CFR 49.132. The
proposed revisions define a ``large open burn'' or ``large open
burning'' as the open burning of a single pile of the specified
materials greater than 10 feet in diameter or more than 60 feet of
ditch bank or fence line vegetation. These are the criteria that have
been used by the EPA and delegated Tribal authorities that have been
implementing the general open burning permit program under the FARR to
distinguish between large and small open burns.
    As revised, this section would require that persons subject to the
rule must (1) have a permit for large open burning; (2) have approval
to burn on the day(s) of the burn(s); (3) ensure that the person
conducting the burn is familiar with the requirements of the permit;
(4) ensure that the permit is available on-site during the open burn;
(5) conduct the open burn in accordance with the terms and conditions
of the permit; and 6) comply with the General rule for open burning (40
CFR 49.131) or the EPA-approved Tribal open burning rules in a TIP. To
ensure consistency with the use of forms under rules of the Office of
Management and Budget, the revisions clarify that the application must
be submitted on forms approved by the EPA. The revisions add a
requirement that applications for large open burns include a
description of the burning method or methods to be used, the amount of
material to be burned with each method, and the means of ignition.
    The proposed revisions clarify the process for getting approval to
burn on the requested days under the permit. The revisions specify that
the person conducting the large open burn must request approval for the
burn at least one day before the burn in the manner specified in the
permit. As under the current open burning permit rule, in determining
whether to authorize a large open burn for a particular day or days,
the Regional Administrator or delegated Tribal authority will take into
consideration relevant factors including, but not limited to, the size,
duration, and location of the proposed open burn; the current and
projected air quality conditions; forecasted meteorological conditions;
other scheduled burning activities in the surrounding area; and other
factors indicating whether or not the proposed open burn can be
conducted without causing or contributing to an exceedance of a
national ambient air quality standard. When relevant, the Regional
Administrator or delegated Tribal authority will also consider whether
or not the proposed open burn can be conducted without causing or
contributing to any other adverse impact on air quality. These other
adverse impacts on air quality would be specific to the particular
burn, such as the type of burn and its location, the local meteorology,
and the areas expected to be impacted by the smoke. The EPA proposes to
add a provision allowing the Regional Administrator or delegated Tribal
authority to revoke the approval to burn based on changes in these air
quality considerations. In such cases, the permittee would be required,
after being contacted about the revocation, to immediately extinguish
the fire if safe to do so, discontinue lighting the fire, and withhold
additional material such that the fire burns down, as applicable.
    The exemptions to the requirement to obtain a large open burning
permit are generally the same as the exemptions in the General rule for
open burning (40 CFR 49.131) with a few exceptions. Recreational fires
meeting the definition of ``large open burn'' are exempt from
permitting. In addition, agricultural burns and forestry and
silvicultural burns are exempt from the Rule for large open burning
permits (40 CFR 49.132).
    The large open burning permit rule will continue to apply on the
Nez Perce Reservation and the Umatilla Indian Reservation, as shown in
Table 2 in Section B of this preamble. The EPA is also proposing that
40 CFR 49.132 be newly applied on the Yakama Reservation, as shown in
Table 2 of this preamble. The EPA anticipates that the Nez Perce Tribe
and the Umatilla Indian Tribe will update their EPA delegation to
implement this revised rule on their respective reservations. The EPA
also anticipates that the Confederated Tribes and Bands of the Yakama
Nation will seek EPA delegation to implement this revised rule on their
reservation.
    Section 49.142 Rule for small open burning annual permits. The EPA
is also proposing to establish a permitting program option requiring an
annual permit for ``small open burning'' within an Indian reservation.
The proposed revisions define a ``small open burn'' or ``small open
burning'' as the open burning of a single pile of the specified
materials that is 10 feet or less in diameter or 60 feet or less of
ditch bank or fence line vegetation. These are the criteria that have
been used by the EPA and delegated Tribal authorities that have been
implementing the general open burning permit program under the FARR to
distinguish between large and small open burns.
    This proposed new rulemaking would require the owner or lessee of
property on an Indian reservation where this section applies and on
which small open burns will be conducted to apply for and obtain an
annual permit for open burning. To ensure consistency with the use of
forms under rules of the Office of Management and Budget, the proposed
rulemaking specifies that the application must be submitted on forms
approved by the EPA. The obligations to comply with the permit and
other requirements of this section would extend to any owner and lessee
of the property and any person conducting a small open burn on the
property. The permit would cover all small open burns conducted at a
given property for the calendar year in which it is issued, without the
need to apply for and obtain a burn permit for each individual small
open burn. Should the owner or lessee of the property covered by the
annual permit change within the year, a new application and permit
would be required.
    To conduct a small open burn under this permit on any particular
day, persons subject to this section must (1) ensure that the person
conducting the burn is familiar with the requirements of the permit;
(2) ensure that the permit is available on-site during the open burn;
(3) conduct the open burn in accordance with the terms and conditions
of the permit; (4) comply with the General rule for open burning (40
CFR 49.131) or the EPA-approved Tribal open burning rules in a TIP; and
(5) prior to igniting a burn, check whether burning is allowed for the
area on that day and complete the burning within the designated time
period. The proposed exemptions are generally the same as for large
open burning permits.
    To determine if burning is allowed under an annual permit on any
given day, the Regional Administrator or delegated Tribal authority
will identify and publicize each day as a ``burn day'' or a ``no burn
day'' and, for a burn day, specify the hours and the geographic area
for which burning is allowed. When deciding whether to call a burn day,
the Regional Administrator or delegated Tribal authority will take into
consideration relevant factors, including but not limited to, the
current and projected air quality conditions, the forecasted
meteorological conditions, other scheduled burning activities in the
surrounding area and other factors indicating whether or not open
burning can be conducted without causing or contributing to an
exceedance of a national ambient air quality standard.

When relevant, the Regional Administrator or delegated Tribal authority
will also consider whether open burning can be conducted without
causing or contributing to any other adverse impact on air quality.
    A permit issued under this section expires at the end of the
calendar year unless it is revoked prior to that time based on a
written notice to the permit holder finding that the permit must be
revoked or revised to ensure compliance with this section, 40 CFR
49.131 General rule for open burning or the applicable EPA-approved
Tribal open burning rule, or to protect the public health and welfare.
    This option for a single permit for all small open burns conducted
on a specific property within a calendar year greatly reduces the
burden on individuals who would otherwise need to apply for a permit
multiple times when conducting more than one burn during the calendar
year. Permit issuance once per year also reduces the workload for the
EPA and delegated Tribal air programs, and in turn allows for burn
approvals to be processed more quickly, benefiting all parties
involved.
    In coordination and consultation with the affected Tribes, the EPA
is proposing that 40 CFR 49.142 apply on the Umatilla Indian
Reservation, as shown in Table 2 in Section B of this preamble. This
is, in essence is a continuation of the burn permit program that the
Umatilla Indian Tribe has been implementing on its Reservation under a
delegation with the EPA for many years. The EPA is also proposing that
40 CFR 49.142 apply on the Yakama Reservation, as shown in Table 2 of
this preamble. As with the Rule for large open burning permits (40 CFR
49.132), the EPA anticipates that these Tribes will either update their
EPA delegation or seek EPA delegation to implement this new section on
their reservation.
    Section 49.143 Permit by rule for small open burns. The EPA is also
proposing another option for small open burns: a permit by rule that
would apply within a specific Indian reservation. Like 40 CFR 49.142
Rule for small open burning annual permits, the obligation to submit an
application (referred to in this section as a ``request for coverage'')
applies to the owner or lessee of the property on which the burning
will be conducted, but other compliance obligations extend to any
person conducting a small open burn on an Indian Reservation where this
section applies, as well as to the owner or lessee of the subject
property. The proposed exemptions under both rules are also the same.
    In contrast to the Rule for small open burning annual permits (40
CFR 49.142), this section would require the owner or lessee of the
property on which small open burning will be conducted to submit a one-
time request for approval to burn. This ``approval of coverage'' under
this permit by rule would remain valid for the property until the owner
or lessee changes, at which time a new request for approval of coverage
would be required. Another key difference from the rule for annual
permits for small open burns is that the approval under this permit by
rule would be immediately effective, with no explicit approval required
by the implementing agency. Note, however, that a request for approval
of coverage may be denied if it is not consistent with the requirements
of this section, 40 CFR 49.131 General rule for open burning or the
applicable EPA-approved Tribal open burning rule. In addition, prior to
conducting a burn on a given day, a person subject to this section must
confirm that the day is a ``burn day,'' as further explained in the
following paragraphs.
    The owner or lessee of the property on which small open burns will
be conducted under this permit by rule must apply for approval of
coverage. To conduct a small open burn, persons subject to this section
must (1) ensure that the person conducting the burn is familiar with
the requirements of the approval of coverage; (2) ensure that the
approval of coverage is available on-site during the open burn; (3)
conduct the open burn in accordance with the approval of coverage; (4)
comply with the General rule for open burning (40 CFR 49.131) or the
EPA-approved Tribal open burning rules in a TIP; and (5) prior to
igniting a burn, check whether burning is allowed for the area on that
day and complete the burning within the designated time period.
    As under the Rule for small open burning annual permits (40 CFR
49.142), to determine if burning is allowed on any given day, the
Regional Administrator or delegated Tribal authority will identify and
publicize each day as a ``burn day'' or a ``no burn day'' and for a
burn day, specify the hours and the geographic area for which burning
is allowed. When deciding whether to call a burn day, the Regional
Administrator or delegated Tribal authority will take into
consideration relevant factors including, but not limited to, the
current and projected air quality conditions, the forecasted
meteorological conditions, other scheduled burning activities in the
surrounding area and other factors indicating whether or not open
burning can be conducted without causing or contributing to an
exceedance of a national ambient air quality standard. When relevant,
the Regional Administrator or delegated Tribal authority will also
consider whether open burning can be conducted without causing any
other adverse impact on air quality.
    This proposed rulemaking is also expected to reduce the burden on
individuals of filling out multiple burn applications when conducting
more than one burn during the period of property ownership, as well as
the burden on the EPA and the delegated Tribe in implementing the
permit program. The reduction in burden would be expected to be even
greater than under the Rule for small open burning annual permits (40
CFR 49.142) because the application process is a one-time action and no
action by the implementing agency is required to make the approval of
coverage under the permit by rule effective as to a specified property.
    In coordination and consultation with the affected Tribe, the EPA
is proposing that 40 CFR 49.143 apply on the Nez Perce Reservation, as
shown in Table 2 in Section B of this preamble. As with the other burn
permit rules, the EPA anticipates that the Nez Perce Tribe will update
their EPA delegation to implement this burn permit program on its
reservation.
    Section 49.133 Rule for agricultural burning permits. This section
establishes a permitting program for agricultural burning within an
Indian reservation. As with the previous open burning permit rules, the
EPA is proposing to expand the applicability of this section to apply
to lessees of land on which agricultural burning is conducted to ensure
parties that may be responsible for burning decisions on a given
property are responsible for complying with the requirements of this
section. To ensure consistency with the use of forms under rules of the
Office of Management and Budget, the revisions clarify that the
application must be submitted on forms approved by EPA. The EPA is
clarifying the air quality criteria considered in determining whether a
burn permit will be issued consistent with the same criteria in 40 CFR
49.132 Rule for large open burning permits. Consistent with the other
burn permit rules, the revisions provide that an application must be
submitted at least 1 day prior to the proposed burn. The EPA is also
clarifying that the permit authorizes burning only for the date(s) and
time(s) specified in the permit, the procedures for obtaining approval
to burn under the permit, and

that the permit may include other necessary provisions to ensure
compliance with 40 CFR 49.131 General rule for open burning or the EPA-
approved applicable Tribal open burning rule, as well as to protect
health and welfare.
    This section continues to apply on the Nez Perce Reservation and
the Umatilla Indian Reservation, as shown in Table 2 in Section B of
this preamble. The EPA is also proposing that 40 CFR 49.133 be newly
applied on the Yakama Reservation, as shown in Table 2 of this
preamble. The EPA anticipates that the Nez Perce Tribe and the Umatilla
Indian Tribe will update their EPA delegations to implement this
revised section on their Indian reservations. The EPA also anticipates
that the Confederated Tribes and Bands of the Yakama Nation will seek
EPA delegation to implement this revised section on their reservation.
    Section 49.134 Rule for forestry and silvicultural burning permits.
This section establishes a permitting program for forestry and
silvicultural burning within an Indian reservation. The EPA is
proposing the same revisions to this section as to the Rule for
agricultural burning permits (40 CFR 49.133).
    As discussed in section D. of this preamble, Relationship between
Part 49, Subpart C and Subpart M, this rulemaking does not apply on all
reservations, as does the General Rule for Open Burning (40 CFR
49.131), but instead applies on those reservations where it was
determined that a permitting program, in addition to the General Rule
for Open Burning (40 CFR 49.131), is appropriate to better assure that
emissions from forestry and silvicultural burning do not cause or
contribute to a violation of the NAAQS. Importantly, although this rule
requires, where it applies, permits for prescribed fires as that term
is defined in the rule for ``Treatment of Air Quality Monitoring Data
Influenced by Exceptional Events'' (40 CFR 50.14), 40 CFR 49.134 is not
a smoke management program, nor does it require burn managers to employ
basic smoke management practices as listed in Table 1 to 40 CFR 50.14.
However, as previously noted, nothing in the FARR or the proposed
revisions restricts the exclusion of air quality monitoring data
influenced by prescribed fires that meet the criteria set forth in 40
CFR 50.14(b)(3).
    This section continues to apply on the Nez Perce Reservation and
the Umatilla Indian Reservation, as shown in Table 2 in Section B of
this preamble. As with the Rule for agricultural burning permits (40
CFR 49.133), the EPA anticipates that these Tribes will update their
EPA delegation to implement this revised section on their Indian
reservations.
    Section 49.135 Rule for emissions detrimental to public health or
welfare. Under this section, an owner or operator of an air pollution
source is not allowed to cause or allow the emission of any air
pollutants, in sufficient quantities and of such characteristics and
duration, that the Regional Administrator determines (1) causes or
contributes to a violation of any NAAQS, or (2) is presenting an
imminent and substantial endangerment to public health or welfare, or
the environment. This section provides the EPA with the authority to
require the installation of air pollution controls or other measures in
order to reduce emissions to protect the NAAQS or prevent imminent and
substantial endangerment. The section currently allows the EPA to
require such controls through either a permit to construct or a non-
Title V operating permit under 40 CFR 49.139. Since the FARR was
enacted, the EPA has promulgated rules for permits to construct in
Indian country (the Indian Country Minor NSR rules at 40 CFR 49.151
through 49.164 and the Federal Major New Source Review Program for
Nonattainment Areas in Indian Country at 40 CFR 49.166 through 49.173).
Region 10 has determined that it is not appropriate to use permits to
construct to implement 40 CFR 49.135 because the Indian Country Minor
NSR rules apply only to projects at existing sources that increase
emissions and do not include provisions for the permitting authority to
require reductions in emissions when there is not a proposed
modification to the existing source. Therefore, the EPA is proposing to
remove permits to construct as an option for implementing this section.
Requirements under this section would be established solely through
issuance of a non-Title V operating permit under 40 CFR 49.139.
    This provision currently provides that nothing in the provision
shall be construed to impair any cause of action or legal remedy of any
person, or the public, for injury or damages arising from the emission
of any air pollutant in such place, manner, or amount as to constitute
a common law nuisance. The EPA is proposing to revise the reference to
``common law nuisance'' to ``nuisance under any other applicable law''
to ensure this provision includes applicable statutory and regulatory
nuisance provisions as well as common law nuisance.
    Section 49.137 Rule for air pollution episodes. This section
establishes procedures for preventing and addressing the excessive
buildup of certain NAAQS pollutants within an Indian reservation to
prevent the occurrence of an air pollution emergency. It establishes
criteria for issuing air stagnation advisories. It also establishes air
pollution action levels and the action level triggers (air quality
levels) that are used for the declaration of an air pollution alert,
air pollution warning, or air pollution emergency. The current air
pollution action level triggers are based on 40 CFR part 51, appendix L
(Example Regulations for Prevention of Air Pollution Emergency
Episodes) and currently do not include action level triggers for
PM2.5.
    We are proposing to revise the current action level triggers for
the three action levels (air pollution alert, air pollution warning,
and air pollution emergency) to align with the Air Quality Index (AQI)
categories (unhealthy, very unhealthy, and hazardous) and the
associated concentration thresholds. The AQI categories and
concentration thresholds are found in Table 2 of 40 CFR part 58,
appendix G, Uniform Air Quality Index and Daily Reporting. This
revision will also add action level triggers for PM2.5.
Based on input from Tribes, and after careful consideration, the EPA is
proposing this approach for several reasons. First, if the NAAQS and
corresponding AQI categories and concentrations are ever revised, the
more generalized language would automatically be up to date. Second,
the AQI is based on short term concentrations, which are more
appropriate for action level triggers. Finally, the action level
triggers will now better align with the health messaging associated
with the AQI categories and concentrations, which are publicly
available and widely used. The EPA is also clarifying that air
pollution alerts, air pollution warnings, and air pollution emergencies
can be declared under situations other than just periods of stagnant
air such as high wind events associated with dust storms and wildfires.
Finally, the EPA is proposing revisions to update the description of
the methods the EPA will consider in order to announce an air
stagnation advisory, an air pollution alert, an air pollution warning,
or an air pollution emergency, such as posting the announcement to
Region 10's social media, and to clarify the method for terminating a
declaration.
    Section 49.138 Rule for the registration of air pollution sources
and the reporting of emissions. Under the current rules, any person who
owns or operates a 40 CFR part 71 source, a source subject to a
standard under CAA sections 111 or 112, or any other air pollution
source not expressly

exempted from this section is required to annually register the source
with the EPA and report emissions. This section was intended to ensure
a current and accurate record of the emissions from non-trivial air
pollution sources operating within an Indian reservation is developed
and maintained. Subject sources were required to register by February
15, 2007, and ``new air pollution sources'' must register within 90
days after beginning operation. A ``new air pollution source'' is
currently defined as a source that begins actual construction after the
effective date of the original rule (70 FR 18074, June 7, 2005). Any
other source is considered an existing source.
    Shortly after the EPA began implementing 40 CFR 49.138, it became
apparent that the rule was unintentionally overbroad. Because 40 CFR
49.138 is structured such that the 2 ton per year emissions exemption
applies only to ``any other air pollution source,'' the current
language could be read to require very small sources subject to CAA
section 111 or section 112 standards to register. For example, the
current rule language could require wood stoves and small emergency
generators subject to New Source Performance Standards under section
111 to register. This section could also be read to require some
sources subject to National Emission Standards for Hazardous Air
Pollutants under CAA section 112 to register even though they would
have no (or trivial) emissions of the air pollutants that are required
to be reported under the registration rule.
    To address this unintended consequence, Region 10 issued an
interpretative guidance document in 2005 to clarify the EPA's
expectation that non-Title V sources that were subject to CAA section
111 or 112 standards were required to register only if they had the
potential to emit more than 2 tons per year of any of the listed air
pollutants.\5\ In this rulemaking, Region 10 is proposing to revise 40
CFR 49.138 to be consistent with this interpretation. We are proposing
to remove the language that required sources subject to CAA section 111
or 112 standards to register regardless of the level of emissions and
are proposing to add language that any air pollutant source that has
the potential to emit more than 2 tons of the listed air pollutants is
required to register unless it is covered by one of the categorical
exemptions. Because the 2 ton per year criterion would be an
applicability provision, we are proposing to remove that criterion from
the list of exemptions.
---------------------------------------------------------------------------

    \5\ ``Determining if Your Business Needs to Register with EPA as
an Air Pollution Source,'' EPA Region 10 (October 5, 2005).
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    In addition to this change, we are proposing revisions to the
registration rule to be generally consistent with the applicability
provisions of the Indian Country Minor NSR Rule (40 CFR 49.151 through
49.164), which was promulgated after the FARR was promulgated in 2005
and which applies to new and modified minor stationary sources and to
minor modifications at existing major stationary sources where the
increase in emissions is above specified thresholds. Currently, the
FARR registration rule includes sources required to have40 CFR part 71
operating permits in the list of sources required to register. Since
the Indian Country Minor NSR Rule was promulgated after the 2005
promulgation of the FARR, the EPA is proposing to revise the
applicability criteria in 40 CFR 49.138 to include sources required to
have a permit under the Indian Country Minor NSR Rule, as well as
sources required to have a non-Title V operating permit under 40 CFR
49.139. These additions will help accomplish the goal of this section
(ensuring a current and accurate inventory of emissions from non-
trivial air pollution sources) by requiring all sources on Indian
reservations that are required to have permits under the Clean Air Act
to register under the FARR.
    The EPA is also proposing revisions to the list of sources
specifically exempt from the registration rule. The registration rule
contains a list of source categories that are exempt from registration
because emissions from sources in the category are likely to be trivial
(e.g., consumer use of office equipment and products) or because a
registration program is not appropriate for sources in the category
(e.g., mobile sources). When the EPA promulgated the Indian Country
Minor NSR Rule, it exempted from the program various emissions units
and activities that were based, in part, on the FARR registration
exemptions but included some additional categorical exemptions that are
not currently in the FARR registration rule. See 40 CFR 49.153(c). The
EPA has considered these additional categories and is proposing to add
two of them to the FARR registration rule: (1) emergency generators,
designed solely for the purpose of providing electrical power during
outages, provided the total maximum manufacturer's site-rated
horsepower of all units is below 1000; and (2) stationary internal
combustion engines with a manufacturer's site rated horsepower of less
than 50. Although the potential to emit pollutants of such units would
likely be less than the 2 ton per year applicability threshold, adding
them to the list of categorically exempted sources reduces the burden
of having to do emission calculations to confirm the exemption.
    Another area of revisions to this rule relates to the date by which
registration is required. As discussed previously in section C of this
preamble, the EPA is proposing to extend the requirements of this
section to the Cowlitz Indian Reservation, the Snoqualmie Indian
Reservation, and lands held in trust for the Samish Indian Nation and
to clarify that this rule also applies to all lands held in trust for a
Tribe in Idaho, Oregon, and Washington that have not been formally
designated as a reservation. The EPA is therefore revising the
registration provision to provide a date by which existing sources in
such areas are required to register. Under the proposed revisions,
subject sources located on the Tribal lands listed in this section in
existence on the effective date of the FARR revisions would be required
to register by no later than 6 months after the effective date of FARR
revisions. ``New air pollution sources'' continue to be required to
register within 90 days after beginning operation. The EPA has also
revised the definition of ``new air pollution source'' to accommodate
the additional Tribal lands proposed for coverage under these FARR
revisions. All subject sources continue to be required to re-register
each year and provide updates on any changes to the information
provided in the previous registration and promptly report any changes
in ownership, location, or operation.
    The EPA is also proposing to update provisions specifying the
information required to be submitted in the initial and annual
registration to include more commonly used current technology (e.g.,
email rather than facsimile, Global Positioning System coordinates
rather than latitude and longitude). We are also proposing to require
that the copy of the most recent fugitive particulate matter survey and
current fugitive particulate matter plan be submitted with the
registration to better assure compliance with the requirements of 40
CFR 49.126 Rule for limiting fugitive particulate matter emissions.
    The EPA is also proposing to update the method for submitting the
initial and annual registrations. Currently, all registrants can
register and report either through a paper application or through the
FARR Online Reporting System (FORS). The online database was

implemented in 2016 to simplify the registration process from year to
year. Through the online database, the EPA is collecting the same
information from facilities as it does from paper registrations. The
benefits of the online registration include improved recordkeeping by
allowing better and faster access to previous registrations, populating
each annual registration with existing, basic information about the
facility and decreasing the amount of time and resources needed to
report emissions after initial registration. In 2016 (the emission
reporting year for calendar year 2015), when FORS became the preferred
method of registration, 88 facilities out of a total of 154 facilities,
or 57%, registered online. In 2020 (the emission reporting year for
calendar year 2019), approximately 117 facilities out of 138
facilities, or 85%, chose to register online. As the Federal government
moves toward e-government, in an attempt to streamline and simplify
current procedures through electronic reporting, Region 10 is proposing
to require all registration information and reports be submitted online
through FORS within the EPA's Central Data Exchange (CDX), at https://cdx.epa.gov. Exceptions will be made if a facility attains prior
written approval from Region 10 to submit a paper application.
    The EPA is also proposing clarifying revisions to the requirement
to report any relocation of the source in 40 CFR 49.138 (d)(5). As
revised, 40 CFR 49.138 makes clear that report of relocation is
required whether the relocation is within, off, or onto an Indian
reservation, but that more limited information is required to be
reported when the source is moving to a site outside of an Indian
reservation in Idaho, Oregon, and Washington. EPA notes that relocation
of a source may also trigger preconstruction permitting requirements.
In addition, EPA is making a revision to the report of closure to
clarify that the report must include the actual emissions through the
date of closure.
    Finally, for sources subject to 40 CFR part 71, we are eliminating
the requirement to submit information already required by 40 CFR part
71 reporting requirements. The EPA is proposing to revise 40 CFR 49.138
to clarify that the only requirements of this section applicable to 40
CFR part 71 sources are the requirement to submit estimates of total
actual emissions from the air pollution source and the requirement to
submit a copy of the most recent fugitive particulate matter survey and
plan as required under 40 CFR 49.126. The EPA is also proposing
revisions to require that 40 CFR part 71 sources report the specified
information by February 15 of each year (the same date as all other
sources subject to the registration rule) rather than the date that
their 40 CFR part 71 reports are due. 40 CFR part 71 required reports
are now often submitted online through CEDRI within the EPA's Central
Data Exchange (CDX), at https://cdx.epa.gov. Finally, the EPA is
proposing that the owner or operator of a 40 CFR part 71 source submit
reports of a change in ownership and closure, as applicable, because
this information is not routinely required in a 40 CFR part 71 permit.
    Section 49.139 Rule for non-Title V operating permits. This section
provides a permitting program to establish Federally-enforceable
requirements for air pollution sources on Indian reservations. In this
rulemaking, the EPA is proposing to rescind a duplicative provision of
this section pertaining to certain owner-requested limits and to add
administrative procedures to clarify the process for issuing or
revising a permit.
    This rulemaking, as currently written, provides for the issuance of
a permit containing Federally-enforceable requirements in the following
three situations: (1) the owner or operator of any source wishes to
obtain a Federally-enforceable limitation on the source's actual
emissions or potential to emit; (2) the Regional Administrator
determines that additional Federally-enforceable requirements for a
source are necessary to ensure compliance with the applicable
implementation plan, which would include any applicable FIP or TIP; or
(3) the Regional Administrator determines that additional Federally-
enforceable requirements for a source are necessary to ensure the
attainment and maintenance of any NAAQS or Prevention of Significant
Deterioration (PSD) increment.
    On July 1, 2011, the EPA promulgated the Indian Country Minor NSR
Rule, which includes provisions for establishing synthetic minor
permits in Indian country (40 CFR 49.158). The rule defines ``synthetic
minor source'' as a source that otherwise has the potential to emit
regulated NSR pollutants in amounts that are at or above those for
major sources in 40 CFR 49.167, 40 CFR 52.21 or 40 CFR 71.2, but that
has taken a restriction so that its potential to emit is less than such
amounts for major sources. 40 CFR 49.152(d). In promulgating the Indian
Country Minor NSR Rule, the EPA stated that sources seeking synthetic
minor status within the exterior boundaries of Indian reservations in
Idaho, Oregon, and Washington must apply for synthetic minor source
permits under the provisions of that rule and may no longer seek limits
to become a ``synthetic minor source'' under the FARR (76 FR 38748,
38749, July 1, 2011). To be consistent with the Indian Country Minor
NSR Rule, the EPA is proposing to rescind the provisions of 40 CFR
49.139 that are superseded by 40 CFR 49.158 of the Indian Country Minor
NSR Rule and to add language making clear that applications for owner-
requested synthetic minor limits must be submitted under 40 CFR 49.158
of the Indian Country Minor NSR Rule. For the same reason, we are
proposing to delete the provision that authorizes owner-requested
limits to be established in permits under 40 CFR part 71 or a Tribal
operating permit program approved under 40 CFR part 70. The proposed
revisions will now limit the application of 40 CFR 49.139 to the owner
or operator of any air pollution source who wishes to obtain a
Federally-enforceable limitation on the source's emissions that cannot
be obtained under the Indian Country Minor NSR Rule (40 CFR 49.151
through 49.173). Examples of such situations include federally-
enforceable limits to implement netting or offsets because the Indian
Country Minor NSR Rule defines ``synthetic minor source'' as including
only those sources that take a limit on potential to emit ``so that its
potential to emit is less than such amounts for major sources.'' 40 CFR
49.152(d).
    The EPA is also proposing to broaden the applicability provisions
of 40 CFR 49.139 to provide Region 10 the authority to require a source
to obtain a non-Title V operating permit where the Regional
Administrator determines that additional Federally-enforceable
requirements are necessary to implement or ensure compliance with any
other provisions of the Clean Air Act (e.g., regional haze). The EPA
anticipates that such situations are likely to be extremely rare. In
the more than 15 years since the FARR has been in effect, the EPA has
not found it necessary to require a source to obtain a permit under 40
CFR 49.139. Having that authority available through a permit issuance
process, should the need arise, however, would avoid the far more
resource intensive process of promulgating a source-specific FIP to
address an air quality issue.
    We are also proposing to revise the existing administrative
procedures for issuing non-title V operating permits and to add
provisions for reopening and revising such permits. The Indian Country
Minor NSR rule has detailed procedures for issuing, reopening, and

revising Clean Air Act permits on Indian reservations. For
administrative efficiency, the EPA is proposing to use generally the
same procedures for issuing, reopening, and revising non-title V
operating permits. The EPA has also added a proposed definition of
``non-title V operating permit,'' defined as a permit issued by the
Regional Administrator under this section.
    Section 49.140 Rule for residential wood burning devices. The EPA
is proposing to add a rule regulating the installation of certain
residential wood burning devices and limiting what fuels can be burned
in such devices in order to control the emissions of particulate matter
and other pollutants to the atmosphere. In many areas of the Pacific
Northwest, smoke from residential wood burning devices is a significant
source of PM2.5 and PM10 emissions. Regulating
residential wood burning devices and the burning in such devices
therefore helps protect air quality.
    The proposed rulemaking would prohibit, after the effective date of
the rule, the installation of new and used residential wood heaters,
hydronic heaters, forced air furnaces, or central heaters unless they
have been certified by the EPA to meet the applicable particulate
matter emission standards for woodfired heating devices established in
the Standards of Performance for New Residential Wood Heaters (40 CFR
part 60, subpart AAA) and the Standards of Performance for New
Residential Hydronic Heaters and Forced-Air Furnaces (40 CFR part 60,
subpart QQQQ) as amended in 2015 (80 FR 13672, March 16, 2015), or any
later promulgation of these standards, and have a permanent label
affixed to the device as provided in 40 CFR 60.536 or 40 CFR 60.5478.
Certified wood burning devices generate less smoke (fewer particulates)
than non-certified wood burning devices and use less wood to create
heat, improving air quality in communities where people burn wood for
heat. Individuals living on Indian reservations would be able to
continue using uncertified and older certified residential wood
heaters, hydronic heaters, forced air furnaces, or central heaters as
long as the devices were installed prior to the effective date of this
new rule. The proposed rulemaking is more protective of air quality and
would better reduce particulate matter from residential wood burning
devices in comparison to requirements in surrounding jurisdictions that
allow installation of any certified residential wood burning device.
The EPA is therefore also proposing, in the alternative, a rule more
consistent with surrounding jurisdictions and that would prohibit the
installation of new and used residential wood heaters, hydronic
heaters, forced air furnaces, and central heaters unless they have been
certified by the EPA to meet the applicable particulate matter emission
standards for woodfired heating devices established in the Standards of
Performance for New Residential Wood Heaters (40 CFR part 60, subpart
AAA) and Standards of Performance for New Residential Hydronic Heaters
and Forced-Air Furnaces (40 CFR part 60, subpart QQQQ), and have a
permanent label affixed to the device as provided in 40 CFR 60.536 or
40 CFR 60.5478. In effect, the proposal in the alternative would allow
the installation of any new or used residential wood heater, hydronic
heater, forced air furnace, or central heater that has been certified
by the EPA since subparts AAA and QQQQ were first promulgated.
    The EPA is requesting comment specifically on whether the proposed
rulemaking or the proposed alternative should be finalized in order to
regulate the installation of new and used residential wood heaters,
hydronic heaters, forced air furnaces, and central heaters on Indian
reservations in Idaho, Oregon, and Washington. In taking final action,
EPA will consider the input we receive regarding the benefits of
enhanced environmental protection and the benefits of consistency with
surrounding jurisdictions.
    This proposed rulemaking would also limit materials that can be
burned in all existing and newly installed types of residential wood
burning devices (including fireplaces) to: (1) seasoned firewood, which
is firewood that has a moisture content of 20% or less; (2) kiln dried
or air dried lumber that has not been treated, impregnated, painted or
coated; (3) products manufactured for the purpose of being used as a
fuel for a residential wood burning device, such as wood pellets and
biomass fire logs intended for burning in a wood stove or fireplace;
and (4) manufactured fire starters and paper sufficient to start a
fire.
    These new requirements are consistent with the intent of the FARR:
to ensure that residents within the boundaries of Indian reservations
enjoy air quality protection similar to those existing outside
reservations. Over the years, many jurisdictions on State lands outside
of Indian reservations have similarly banned the installment of
uncertified wood burning devices and limited material that can be
burned in residential wood burning devices. This proposed section would
therefore help ensure a similar degree of protection from environmental
and health hazards on Indian reservations as in neighboring areas.
    Section 49.141 Rule for curtailment of residential wood burning
devices for specific areas. The EPA is proposing to require the
curtailment of residential wood burning devices (commonly referred to
as ``burn bans'') during periods of poor air quality in specific
geographical areas on certain Indian reservations with demonstrated
elevated concentrations of particulate matter. This prohibition would
apply to wood stoves and similar wood burning devices as well as to
fireplaces. In some areas of Indian reservations in Idaho, Oregon, and
Washington, stagnant air and use of wood burning devices, particularly
in winter, drive particulate matter concentrations to elevated levels,
causing concern for human health. Fine particles can make asthma
symptoms worse and trigger asthma attacks. Fine particles can also
trigger heart attacks, stroke, irregular heart rhythms and heart
failure, especially in people who are already at risk for these
conditions. As discussed in section I.B of this preamble,
PM2.5 concentrations that exceed the NAAQS over a 3-year
period can result in a ``nonattainment'' designation under the CAA,
which in turn can result in more stringent air pollution reduction
measures. A burn ban rule would help areas with elevated
PM2.5 levels take proactive steps to avoid a
``nonattainment'' designation. Many State and local air agencies in the
Pacific Northwest have curtailment programs for residential wood
heating devices with procedures, conditions, and exemptions similar to
those the EPA is proposing.
    This proposed curtailment program establishes two burn ban stages.
During a Stage 1 ban, only EPA-certified residential wood burning
devices are permitted to be used. During a Stage 2 ban, no wood burning
devices, even EPA-certified devices, are permitted to be used. A
residence that self-certifies that wood is the sole source of heat or
that the use of an available alternative heat source would impose an
economic hardship would be exempt from both stages of burn bans. This
exemption would remain in effect for 5 years from the date of self-
certification, unless there is a change to the qualification status of
the residence covered by the exemption. A ``Self-Certification''
exemption form will be available on Region 10's website and other
locations and must be completed and kept on site for any residence
relying on this exemption.
    The EPA is proposing a phased in approach for implementation and
enforcement of this rule. The first year

after promulgation, the EPA or delegated Tribe will run a voluntary
curtailment program to help familiarize homeowners with the curtailment
program. The mandatory curtailment program will begin October 1st of
the 2nd calendar following the year of promulgation of this rulemaking
for a particular reservation. After the implementation date, the EPA
and delegated tribes will continue to focus on compliance assistance
work. This will be in the form of assistance, outreach, and education,
in partnership with affected Tribes regarding the new rules, the
process for certifying for exemption status and the adverse health
effects of high particulate matter levels.
    After coordination and consultation with the affected Tribes, for
the reasons explained in section B of this preamble, the EPA is
proposing that 40 CFR 49.141 apply on the Colville, the Nez Perce and
the Yakama Reservations, as shown in Table 2 in Section B of this
preamble. The EPA anticipates that each of these Tribes will seek EPA
delegation to implement this section on their reservations.

B. Rules Proposed for Specific Indian Reservations

    As discussed in section A of this preamble, the EPA is proposing to
promulgate several rules that would only apply on specific Indian
reservations where the EPA finds, in coordination and consultation with
the relevant Tribes, that the rules are necessary or appropriate. This
is consistent with the approach under the FARR as promulgated in 2005,
in which the EPA promulgated one or more additional rules on the
Colville, Nez Perce, and Umatilla Reservations. Except as otherwise
noted in this section, the additional rules promulgated for the
specified Indian reservations in 2005 remain in effect, to be revised
as proposed in this rulemaking.
    This section summarizes the new rules that the EPA proposes to
apply to specified Indian reservations, as well as existing rules (in
some cases with proposed revisions) that the EPA proposes to apply to
additional Indian reservations. In each case, the proposed additional
rules are intended to regulate activities that contribute to elevated
particulate matter concentrations in areas where there are air quality
concerns. As in promulgating additional rules to apply on specified
Indian reservations when the FARR was promulgated in 2005, the EPA is
basing the determination of whether the additional rules proposed in
this action are necessary or appropriate for a particular Indian
reservation on a number of factors, including the prevalence of the
activity on the reservation, the significance of the resulting
pollution on air quality in the area and adjacent airsheds, and whether
the Tribe has Tribal laws to control this type of pollution (67 FR
11748, 11755 March 15, 2002). These proposed regulations would be part
of FIPs for specific Indian reservations as specified in subpart M of
this part.
    For the new 40 CFR 49.141 Rule for curtailment of residential wood
burning devices for specific areas, the EPA evaluated PM2.5
air quality monitoring data on or near reservations in Idaho, Oregon,
and Washington to assess which reservations had elevated wintertime
PM2.5 levels. The EPA also received input from Tribes about
the prevalence of wood burning devices on their reservations, the
contribution of wood burning devices on their reservations to elevated
PM2.5 levels, and existing efforts to address wood burning
devices in the airsheds of concern. Based on this information, the EPA
determined it is appropriate to propose to apply 40 CFR 49.141 Rule for
curtailment of residential wood burning devices for specific areas, on
the Colville, Nez Perce, and Yakama Reservations.
    Table 2 of this section lists the ``additional'' rules the EPA is
proposing to apply on five Indian reservations where the EPA has found,
in coordination and consultation with the relevant Tribes, that it is
appropriate to establish these specific requirements in their FIPs in
order to control particulate matter pollution, as well as the
additional rules that will continue to apply, as revised, on the
specified Indian reservations. There are currently no additional rules
that apply on the Yakama Reservation. The EPA is proposing that 40 CFR
49.132 Rule for large open burning permits, 40 CFR 49.133 Rule for
agricultural burning permits, 40 CFR 49.141 Rule for curtailment of
residential wood burning devices for specific areas, and 40 CFR 49.142
Rule for small open burning annual permits apply on the Yakama
Reservation, as shown in Table 2. As discussed in section A of this
preamble, the EPA is proposing that 40 CFR 49.128 Rule for limiting
particulate matter emissions from wood products industry sources be
applied on the Coeur D'Alene Reservation because the operations of a
wood products facility located on the Coeur D'Alene Reservation may
contribute to the elevated levels of PM2.5 in St. Maries,
Idaho.
    Additional information supporting the proposed additional rules for
the specified Indian reservations, shown on Table 2 and marked with an
asterisk, is included in the docket for this proposal.

                      Table 2--Additional Rules \6\
------------------------------------------------------------------------
            Section No.                       Additional rules
------------------------------------------------------------------------
                    Coeur D'Alene Reservation, Idaho
------------------------------------------------------------------------
Sec.   49.128 *...................  Rule for limiting particulate matter
                                     emissions from wood products
                                     industry sources.
------------------------------------------------------------------------
                    Colville Reservation, Washington
------------------------------------------------------------------------
Sec.   49.127.....................  Rule for woodwaste burners.
Sec.   49.128.....................  Rule for limiting particulate matter
                                     emissions from wood products
                                     industry sources.
Sec.   49.141 *...................  Rule for curtailment of residential
                                     wood burning devices for specific
                                     areas.
------------------------------------------------------------------------
                      Nez Perce Reservation, Idaho
------------------------------------------------------------------------
Sec.   49.127.....................  Rule for woodwaste burners.
Sec.   49.128.....................  Rule for limiting particulate matter
                                     emissions from wood products
                                     industry sources.
Sec.   49.132 [dagger]............  Rule for large open burning permits.
Sec.   49.133.....................  Rule for agricultural burning
                                     permits.
Sec.   49.134.....................  Rule for forestry and silvicultural
                                     burning permits.
Sec.   49.141 *...................  Rule for curtailment of residential
                                     wood burning devices for specific
                                     areas.

Sec.   49.143 [dagger]............  Permit by rule for small open burns.
------------------------------------------------------------------------
                   Umatilla Indian Reservation, Oregon
------------------------------------------------------------------------
Sec.   49.132 [dagger]............  Rule for large open burning permits.
Sec.   49.133.....................  Rule for agricultural burning
                                     permits.
Sec.   49.134.....................  Rule for forestry and silvicultural
                                     burning permits.
Sec.   49.142 [dagger]............  Rule for small open burning annual
                                     permits.
------------------------------------------------------------------------
                     Yakama Reservation, Washington
------------------------------------------------------------------------
Sec.   49.132 *...................  Rule for large open burning permits.
Sec.   49.133 *...................  Rule for agricultural burning
                                     permits.
Sec.   49.141 *...................  Rule for curtailment of residential
                                     wood burning devices for specific
                                     areas.
Sec.   49.142 *...................  Rule for small open burning annual
                                     permits.
------------------------------------------------------------------------

C. Environmental Justice

    On February 11, 1994, the President issued Executive Order 12898
entitled, ``Federal Actions to Address Environmental Justice in
Minority Populations and Low-Income Populations.'' The Executive Order
calls on each Federal agency to make environmental justice (EJ) a part
of its mission by ``identifying and addressing, as appropriate,
disproportionately high and adverse human health or environmental
effects of its programs, policies, and activities on people of color
and low-income populations.'' On January 20, 2021, the President issued
Executive Order 13985: ``Advancing Racial Equity and Support for
Underserved Communities Through the Federal Government.'' \7\ The
Executive Order calls on each Federal agency to ``pursue a
comprehensive approach to advancing equity for all, including people of
color and others who have been historically underserved, marginalized,
and adversely affected by persistent poverty and inequality.''
Additionally, the EPA expressed a commitment to conducting
environmental justice analysis for rulemakings as described in the
April 30, 2021 revisions to the Cross-State Air Pollution Rule
(CSAPR).\8\
---------------------------------------------------------------------------

    \6\ The additional rules marked with an asterisk (*) are the new
or existing rules that the EPA proposes be newly applied to the
specified Indian reservations in this rulemaking. With respect to
the additional rules marked with a dagger ([dagger]), the large and
specified small open burn permitting rules replace Sec.  49.132,