05-5045. Approval and Promulgation of Air Quality Implementation Plans; Oregon Visibility Protection Plan

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is taking direct final action to approve revisions to the Oregon Visibility Protection Plan submitted to EPA on January 22, 2003. The revisions are the result of a required periodic review of the Visibility Protection Plan conducted by the State, and reflect recommendations from the Oregon Visibility Advisory Committee. In general, the revisions reflect work the State intends to conduct over the next three years. EPA has determined that this submission is a general strengthening of the State Implementation Plan (SIP) as it expands strategies to protect visibility in Oregon.

DATES:

This direct final rule will be effective May 16, 2005, without further notice, unless EPA receives adverse comments by April 14, 2005. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the Federal Register informing the public that the rule will not take effect.

ADDRESSES:

Submit your comments, identified by Docket ID No. R10-OAR-2005-OR-0002, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the on-line instructions for submitting comments.
• Agency Web site: http://www.epa.gov/​edocket. EDOCKET, EPA's electronic public docket and comment system, is EPA's preferred method for receiving comments. Follow the on-line instructions for submitting comments.
• Mail: Gina Bonifacino, Office of Air, Waste and Toxics, OAWT-107 EPA, Region 10, 1200 Sixth Ave., Seattle, Washington 98101.
• Hand Delivery: EPA, Region 10 Service Center, 14th Floor, 1200 Sixth Ave., Seattle, Washington 98101. Attention: Gina Bonifacino, Office of Air, Waste and Toxics, OAWT-107. Such deliveries are only accepted during normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID No. R10-OAR-2005-OR-0002. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.epa.gov/​edocket,, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through EDOCKET, regulations.gov or e-mail. The EPA EDOCKET and the Federal regulations.gov Web site are “anonymous access” systems, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through EDOCKET or regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

Docket: All documents in the docket are listed in the EDOCKET index at http://www.epa.gov/​edocket. Although listed in the index, some information is not publicly available, such as 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 form. Publicly available docket materials are available electronically in EDOCKET, in hard copy at EPA, Region 10, Office of Air, Waste and Toxics, 1200 Sixth Avenue, Seattle, Washington, or in hard copy at the EPA Oregon Operations Office, 811 SW., 6th Ave., 3rd Floor, Portland, OR 97204 from 8 a.m. to 4:30 p.m. Monday through Friday, excluding legal holidays.

FOR FURTHER INFORMATION CONTACT:

Gina Bonifacino at telephone number: [phone], e-mail address: [e-mail], fax number: [phone], or the above EPA, Region 10 address.

SUPPLEMENTARY INFORMATION:

Throughout this document wherever “we”, “us” or “our” are used, we mean EPA.

Table of Contents

I. Background

A. What Is Visibility Protection and Why Do We Have It?

B. What Are the Main Visibility Protections Provided by the Federal Rules?

C. How Has Visibility Been Protected in Oregon?

D. What Changes Is EPA Approving With This Action?

II. What Are the Required Provisions of a Visibility State Implementation Plan (SIP) and How Does Oregon Meet the Requirements for Visibility Protection?

A. Long Term Strategy

B. Monitoring

C. BART

III. What Does This Visibility SIP Revision Change and How Do These Changes Compare to Federal Requirements?

A. Provision To Expand the Current Visibility Monitoring Network.

B. Provisions To Improve Smoke Management Coordination Between Agricultural Burning and Forestry Burning Programs

C. Provisions To Increase the Use of Non-Burning Alternatives in Agricultural Open Burning and Forestry Burning Programs

D. Provisions To Improve Fire Emission Inventory and Tracking of Burning

E. Provisions to Change the Periodic Plan Review Period From Five to Three years

F. Provisions to Remove the Summer Prohibition on Prescribed Burning in Northwest Oregon on a Trial Basis

G. Provisions Establishing Annual Visibility Advisory Committee Meetings

IV. Direct Final Action

V. Statutory and Executive Order Reviews

I. Background

A. What Is Visibility Protection and Why Do We Have It?

Section 169A of the Federal Clean Air Act (CAA or Act) requires States to protect visibility in mandatory Class I Federal areas. Mandatory Class I Federal areas are specified large National Parks or Wilderness Areas. In Oregon, there are 12 mandatory Class I Federal areas; the Crater Lake National Park, Diamond Peaks Wilderness Area, Eagle Cap Wilderness Area, Gearhart Mountain Wilderness Area, Hells Canyon Wilderness Area, Mountain Lakes Wilderness Area, Mount Hood Wilderness Area, Mount Jefferson Wilderness Area, Mount Washington Wilderness Area, Strawberry Mountain Wilderness Area, Three Sisters Wilderness Area, and Kalmiopsis Wilderness Area. See 40 CFR 81.425. The Federal rules regulating visibility protection are set out in 40 CFR part 51, subpart P.

B. What Are the Main Visibility Protections Provided by the Federal Rules?

The Clean Air Act sets out a goal of preventing any future and remedying any existing impairment of visibility in mandatory Class I Federal areas. See 42 U.S.C. 7491. Employing a close coordination process among the state and the Federal Land Managers (FLM), the Federal rules require monitoring of visibility in mandatory Class I Federal areas, as well as the development of a long-term strategy for making reasonable progress towards the national visibility goal. The visibility protection rules also provide for an assessment of visibility impacts from any new or major modification that may affect mandatory Class I Federal areas. Additionally, in the event that a Federal Land Manager certifies impairment of visibility in a mandatory Class I Federal area that could be caused, or contributed to, by an existing stationary facility, emission limitations representing Best Available Retrofit Technology (BART) must be imposed on the facility.

The Federal visibility rules were modified in 1999 to include provisions for addressing regional haze. See 64 FR 35714. Regional haze is visibility impairment which results from the cumulative impact of emissions from many point and non-point sources. All states are currently in the process of developing revisions to their SIPs to address the regional haze provisions. The SIP submission under discussion in this action is not required to comply with the regional haze provisions of 40 CFR part 51, subpart P until December 2007. We note that Oregon submitted a Regional Haze Section 309 Plan (Requirements related to the Grand Canyon Visibility Transport Commission) on December 18, 2003. See 49 CFR part 51, section 309. EPA has not acted on the December 18, 2003 Regional Haze section 309 Plan submission as of the date of this action.

C. How has Visibility Been Protected in Oregon?

On November 22, 1988, EPA approved visibility protection provisions into Oregon's State Implementation Plan (53 FR 47188). Oregon's visibility protection provisions are at Oregon Administrative Rules (OAR) 340-200-040, Section 5.2. The visibility protection SIP provided three approaches to visibility protection: (1) A short-term strategy to be accomplished over a five year period to mitigate existing visibility impairment; (2) a long-range strategy to reduce fine particle emissions from agricultural field burning and forest prescribed burning over a 10-15 year period; and (3) on-going visibility protection afforded through the New Source Review permitting process. EPA approved the visibility SIP because it conformed to the Federal visibility protection provisions outlined in 40 CFR 51.300, subpart P. On November 1, 2001, EPA approved changes to Oregon's regulations as proposed revisions to the visibility SIP. See 66 FR 55105. The 2001 revisions built on the programs established in the earlier visibility SIP. Focusing on vegetative burning, the 2001 revisions: (1) Expanded the period during which restrictions to protect visibility apply by approximately 15 days; (2) incorporated the Class I area visibility protection provisions of the Union and Jefferson County field burning ordinances (Union County Ordinance #1992-4 passed May 6, 1992, and Jefferson County Ordinance #0-58-89 passed May 31, 1989); (3) reduced the annual acreage allowed for research and hardwood conversion burning from 1200 to 600 acres per year; and (4) revised the Willamette Valley field burning restriction emergency clause to allow hardship requests for visibility protection exemptions beyond August 10th of each year. In addition to these changes, the 2001 revisions proposed to decrease the frequency of the formal review of the visibility program by the Department of Environmental Quality from three to five years. However, EPA took no action on this provision because Federal visibility protection regulations require the states to review the visibility program every three years. See 40 CFR 51.306(c). Thus, the three year review period remained in the SIP. As discussed below, the January, 2003 SIP submission revises the review period back to three years.

D. What Changes Is EPA Approving With This Action?

The January, 2003 submission contains expanded strategies to protect visibility in Oregon. Thus, EPA has determined that the submission is a general strengthening of the SIP. The expanded strategies include a provision to expand the current visibility monitoring network subject to available funding, provisions to improve smoke management coordination between agricultural burning and forestry burning programs, provisions to increase the use of non-burning alternatives in agricultural open burning and forestry burning programs, and provisions to improve fire emission inventory and tracking of burning. In addition to these provisions, the January 2003 submission reorganized the content of the plan, made minor editorial changes for housekeeping purposes, and removed the short term strategy prohibiting prescribed burning from July 1-September 15. EPA has determined that the reorganization of the plan is non-substantive and the revision removing summer prohibition on prescribed burning is not a relaxation of the SIP. Accordingly, EPA is taking direct final action to approve the revisions to the Oregon Visibility Protection Plan contained in the January 2003 submission. The revisions, and EPA's rationale for approving the revisions are described below in section III.

II. What Are the Required Provisions of a Visibility State Implementation Plan (SIP) and How Does Oregon Meet the Requirements for Visibility Protection?

40 CFR 51.302 provides the requirements for Visibility SIPs. These requirements and how the Oregon Visibility SIP meets these requirements are summarized below.

A. Long-Term Strategy

The SIP needs to include a long-term (10-15 year) strategy that includes emission limitations, schedules of compliance, and other measures as deemed necessary to make reasonable progress toward the national goal. See 40 CFR 51.302(c)(2)(i). In general, Section 5.8.2 of the proposed SIP revision provides a discussion of the long-term strategy, including measures for stationary sources, mobile sources, area sources, and interstate coordination.

The long-term strategy must include:

• A strategy for evaluating visibility in mandatory Class I Federal areas by visual observation or other appropriate monitoring techniques. See 40 CFR Part 51.305(a). Section 5.6 of the January 2003 submission provides for monitoring through the IMPROVE monitoring network and Oregon DEQ's real-time monitoring network to help identify sources and the degree of impairment in Cascade Class I areas.
• A provision for the available visibility data and provide a mechanism for its use in decisions required by the regulations. See 40 CFR 51.305(b). Section 5.7 of the January 2003 submission provides for the development and use of available data for SIP review and development.
• A strategy to address any existing impairment the Federal Land Manager certifies to the State and integral vista of which the Federal Land Manager notifies the State at least 6 months prior to plan submission. See 40 CFR 51.306(a)(1). Sections 5.3 and 5.5 of the January 2003 submission contain strategies covering existing impairment in Federal mandatory Class I areas. Section 5.9 of the January 2003 submission discusses integral vistas.
• A discussion, with reasonable specificity, why the long-term strategy is adequate for making reasonable progress. See 40 CFR 51.306(a)(3). Section 5.8.2 of the January 2003 SIP submission discusses all source categories, the control measures that apply to them, and a qualitative assessment of how these are adequate for making reasonable progress. Section 5.8 of the proposed January 2003 SIP submission discusses the evaluation of progress toward achieving the national visibility goal.
• Coordination of the long-term strategy with other existing plans and goals, including those provided by affected Federal Land Managers. See 40 CFR 51.306(a)(3). Section 5.7 of the January 2003 submission describes the procedure for periodic program reviews and revision of the SIP. The procedures include consultation with Federal Land Managers for the review of the visibility SIP and New Source Review rules, annual Visibility Committee meetings and periodic plan review and assessments.
• Provisions for periodic review of not less than every three years See 40 CFR 51.306(c). The review must include consultation with the appropriate Federal Land Managers and the State must provide a report to the public and EPA that includes an assessment of:

(1) Progress achieved in remedying existing impairment;

(2) The ability of the long-term strategy to prevent future impairment;

(3) Any change in visibility since the last report;

(4) Additional measures, including the need for SIP revisions that may be needed to assure reasonable progress;

(5) The progress achieved in implementing BART and meeting other schedules set forth in the long-term strategy; and

(6) The impact of any exemption granted under 40 CFR 51.303.

(7) The need for BART to remedy existing visibility impairment of any integral vista.

Section 5.7 of the January 2003 SIP submission directs the State to conduct a three year periodic review and assessment and provide a report summarizing the periodic plan review and assessment to State and Federal Land Managers, EPA and other interested parties.

• Provisions for review of the impacts of any new or modified major stationary source. See 40 CFR 51.306(d). The Oregon Department of Environmental Quality rules for the prevention of significant deterioration of air quality (provisions of OAR chapter 340, Divisions 200, 202, 209, 212, 216, 222, 224, 225, and 268), as in effect on October 8, 2002, are approved as meeting the requirements of title I, part C, subpart 1 of the Clean Air Act, as in effect on July 1, 2002, for preventing significant deterioration of air quality. See 68 FR 2891(January 22, 2003).

B. Monitoring

The plan must contain an assessment of visibility impairment and a discussion of how each element of the plan relates to preventing future or remedying existing impairment. See 40 CFR 51.302(c)(2)(ii). Section 5.8 of the 2003 submission provides a description of control strategies and how these control strategies are directed at preventing future and remedying existing impairment.

C. BART

The plan must contain emission limitations representing BART for any existing facility that meets the requirements of 40 CFR 51.301(e), and for which impairment has been certified by the Federal Land Managers and for which the State has determined such impairment is reasonably attributed to that source. See 40 CFR 51.302(c)(2)(iii).

Section 5.10 of the January 2003 submission contains a discussion of BART eligible sources in Oregon. Based on visibility monitoring and analysis, the State has not determined that existing impairment in any mandatory Class I Federal area for which impairment has been certified can be reasonably attributed to a specific major stationary source.

III. What Does This Visibility SIP Revision Change and How Do These Changes Compare to Federal Requirements?

A. Provision To Expand the Current Visibility Monitoring Network

Since the early 1980's, the Oregon Department of Environmental Quality has conducted visibility monitoring annually, at a minimum, from July to September in the Class I areas in the Oregon Cascade Mountain Range. The January 2003 SIP revision proposes to expand this monitoring network statewide to evaluate visibility in all Class 1 areas in Oregon. The expanded monitoring is contingent on Oregon Department of Environmental Quality securing necessary funds.

B. Provisions To Improve Smoke Management Coordination Between Agricultural Burning and Forestry Burning Programs

There are four smoke management programs operating in Oregon that help protect visibility in Class I areas in the summer months. These programs are operated by the Oregon Department of Forestry, the Oregon Department of Agriculture and Jefferson and Union County governments. The programs control open field burning of grass straw residue in different parts of the state and forestry burning throughout the State. Section 5.8.1.1 of the January 2003 SIP revision directs the Oregon Department of Environmental Quality to make efforts to ensure on an on-going basis that good coordination is achieved between these smoke management programs.

C. Provisions To Increase the Use of Non-Burning Alternatives in Agricultural Open Burning and Forestry Burning Programs

The long-term strategy for Willamette Valley field burning includes an ongoing research and development program investigating alternatives to open field burning. Under state law, the Oregon Department of Agriculture is required to conduct an on-going research and development program to seek, develop, and promote viable alternatives to open field burning. Alternatives include straw utilization, minimum tillage, less-than-annual burning and alternate crops not requiring burning. Sections 5.8.2.3 of the January 2003 submission reiterates the Department of Environmental Quality's continued coordination with the Oregon Department of Agriculture to encourage alternatives to field burning.

D. Provisions To Improve Fire Emission Inventory and Tracking of Burning

Smoke management program managers in Oregon track their own burning and prepare annual reports that are submitted to the Oregon Department of Environmental Quality. Burning information is collected and submitted to the Department in various formats. The Department is evaluating an approach to better coordinate accurate emissions data for these programs as well as surveying other areas of the state where significant burning occurs and develop new ways of tracking emissions where possible.

E. Provisions To Change the Periodic Plan Review Period From Five to Three Years

Federal visibility rules require a three year review and assessment of the effectiveness of visibility strategies. See 40 CFR 51.306. In a 1993 submission to EPA, Oregon revised its Visibility Plan to change the review period from three to five years. EPA did not act on Oregon's revision changing the periodic review period from three to five years because Federal visibility protection regulations require the states to review and revise as necessary the visibility program every three years. See 66 FR 55105. Section 5.7.2 of the January, 2003 submission directs the Oregon Department of Environmental Quality to change periodic plan review back to every three years.

F. Provisions To Remove the Summer Prohibition on Prescribed Burning in Northwest Oregon on a Trial Basis

Oregon's Visibility Protection Plan defines prescribed burning as the controlled application of fire to wildland fuels in either their natural or modified state, under such conditions of weather, fuel and soil moisture, as allows the fire to be confined to a predetermined area while producing the intensity of heat and rate of fire spread required to meet planned objectives including silviculture, wildlife habitat management, grazing and fire hazard reduction. Prior to the adoption of the Visibility Plan in 1986, prescribed burning in Northwest Oregon during the summer months impaired visibility in several Cascade Class 1 areas. See 53 FR 47188. The 1986 Plan prohibited prescribed burning in Western Oregon counties between July 1 and September 15, with certain exemptions. For example, one exemption allowed burning on days when natural visibility impairment exists. Another allowed for a hardship exemption at the beginning of summer if poor weather conditions and other factors significantly hindered burning in the spring. After reviewing the Visibility Protection Plan, including the prescribed burning strategies, the Visibility Advisory Committee recommended removing the summertime prohibition on prescribed burning. In the January, 2003 submission, Oregon removed the summertime prohibition on prescribed burning. According to the January 2003 submission, over the last fifteen years, most prescribed burning has been intentionally shifted to spring and fall months, and the remaining burning has decreased due to an overall decline in timber harvesting in Western Oregon.

EPA has determined that the removal of the summer prescribed burning prohibition meets the requirements of Section 110(l) of the Act. Section 110(l) of the Act states that a SIP revision can not be approved if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress towards attainment of the National Ambient Air Quality Standards (NAAQS) or any other applicable requirements of the Act. EPA has determined that the removal of the summertime prohibition on burning will not interfere with the attainment and reasonable further progress towards attainment of the National Ambient Air Quality Standards maintenance of the NAAQS, or any other applicable requirements of the Act. EPA believes that even without the summertime prohibition on prescribed burning, the other elements in the long term and short term strategy will provide protection from summertime visibility impairment. These elements include:

(1) Oregon's Smoke Management Plan. Oregon's Smoke Management Plan provides protection from summertime visibility impairment from prescribed burning. Oregon's Smoke Management Plan was approved into the SIP in 1988 and is designed to manage smoke impacts from the burning of silvicultural wastes and the prescribed burning of forests. See 53 FR 47188. In November 2001, EPA approved changes to Oregon's Smoke Management Plan to strengthen visibility protection of Class 1 areas, and to provide for additional protections around nonattainment areas for particulate matter. See 66 FR 55015. Under the Smoke Management Program, efforts will be made to conduct all prescribed burning in Western Oregon during the spring and fall months, and;

(2) The Visibility Protection Period. The Visibility Protection Period (July 1 to September 15) remains in place. During the Visibility Protection Period, other short term strategies, such as the open field burning programs, provide protection from summertime visibility impairment.

G. Provisions Establishing Annual Visibility Advisory Committee Meetings

Under the prior Visibility Protection Plan, the Visibility Advisory Committee was required to convene only for the periodic plan review. In order to keep better informed of visibility trends and conditions, the Committee recommended holding an annual meeting, in addition to the three year periodic review meetings. The January 2003 submission requires the Committee to hold an annual meeting. This annual meeting will be open to the public, the news media and other interested persons. Topics to be addressed will include a review of the monitoring data, and assessment of visibility trends and sources contributing to visibility impairment, and discussion of reasonable progress toward achievement of the national visibility goal.

EPA has determined that these revisions to the Oregon Visibility Protection Plan submitted on January 22, 2003 constitute a general strengthening of the State Implementation Plan (SIP), and is taking direct final action to approve these revisions.

V. Direct Final Action

EPA is publishing this action without a prior proposal because EPA views this as a noncontroversial amendment and anticipates no adverse comments. In the proposed rules section of this Federal Register publication, however, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should relevant adverse comments be filed. This direct final rule is effective on May 16, 2005, without further notice, unless EPA receives adverse comment by April 14, 2005. If a adverse comment is received, EPA will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule did not take effect. All adverse public comments received will then be addressed in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

V. Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 6, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

The Congressional Review Act, 5 U.S.C. section 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. section 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 16, 2005. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Incorporation by reference
• Intergovernmental relations
• Particulate matter
• Reporting and record keeping requirements

Dated: February 24, 2005.

Kathryn M. Davidson,

Acting Regional Administrator, Region 10.

Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:

PART 52—[AMENDED]

1. The authority citation for Part 52 continues to read as follows:

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

Subpart MM—Oregon

2. Section 52.1970 is amended by adding paragraph (c)(144) to read as follows:

§ 52.1970

Identification of plan.

* * * * *

(c) * * *

(144) The Oregon Department of Environmental Quality submitted a Visibility SIP revision on January 22, 2003. EPA approves these revisions.

(i) Incorporation by reference.

(A) OAR 340-200-0040, Sections 5.2-5.11, effective May 3, 2002.