78050 Federal Register / Vol. 85, No. 233 / Thursday, December 3, 2020 / Proposed Rules 

of a publication in the Federal Register 

of a notice of intent, the notice-andcomment requirements of section 553 of 

the Administrative Procedure Act 

(APA), 5 U.S.C. 553, do not apply to this 

notice of intent. The APA expressly 

differentiates between an order and a 

rule, as it defines an ‘‘order’’ to mean a 

‘‘final disposition, whether affirmative, 

negative, injunctive, or declaratory in 

form, of an agency in a matter other 

than rule making.’’ 5 U.S.C. 551(6) 

(emphasis added). The specific language 

chosen by Congress indicates an 

intention for DEA to proceed through 

the issuance of an order instead of 

proceeding by rulemaking. Given that 

Congress specifically requires the 

Administrator to follow rulemaking 

procedures for other kinds of scheduling 

actions, see 21 U.S.C. 811(a), it is 

noteworthy that, in 21 U.S.C. 811(h)(1), 

Congress authorized the issuance of 

temporary scheduling actions by order 

rather than by rule. 

In the alternative, even assuming that 

this notice of intent might be subject to 

section 553 of the APA, the Acting 

Administrator finds that there is good 

cause to forgo the notice-and-comment 

requirements of section 553, as any 

further delays in the process for 

issuance of temporary scheduling orders 

would be impracticable and contrary to 

the public interest in view of the 

manifest urgency to avoid an imminent 

hazard to the public safety. 

Although DEA believes this notice of 

intent to issue a temporary scheduling 

order is not subject to the notice-andcomment requirements of section 553 of 

the APA, DEA notes that in accordance 

with 21 U.S.C. 811(h)(4), the Acting 

Administrator took into consideration 

comments submitted by the Assistant 

Secretary in response to the notice that 

DEA transmitted to the Assistant 

Secretary pursuant to such subsection. 

Further, DEA believes that this 

temporary scheduling action is not a 

‘‘rule’’ as defined by 5 U.S.C. 601(2), 

and, accordingly, is not subject to the 

requirements of the Regulatory 

Flexibility Act. The requirements for the 

preparation of an initial regulatory 

flexibility analysis in 5 U.S.C. 603(a) are 

not applicable where, as here, DEA is 

not required by section 553 of the APA 

or any other law to publish a general 

notice of proposed rulemaking. 

In accordance with the principles of 

Executive Orders (E.O.) 12866, 13563, 

and 13771, this notice of intent is not 

a significant regulatory action. E.O. 

12866 directs agencies to assess all costs 

and benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health, and safety 

effects; distributive impacts; and 

equity). E.O. 13563 is supplemental to 

and reaffirms the principles, structures, 

and definitions governing regulatory 

review as established in E.O. 12866. 

E.O. 12866 classifies a ‘‘significant 

regulatory action,’’ requiring review by 

the Office of Management and Budget 

(OMB), as any regulatory action that is 

likely to result in a rule that may: (1) 

Have an annual effect on the economy 

of $100 million or more or adversely 

affect in a material way the economy; a 

sector of the economy; productivity; 

competition; jobs; the environment; 

public health or safety; or State, local, 

or tribal governments or communities; 

(2) create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; (3) 

materially alter the budgetary impact of 

entitlements, grants, user fees, or loan 

programs, or the rights and obligations 

of recipients thereof; or (4) raise novel 

legal or policy issues arising out of legal 

mandates, the President’s priorities, or 

the principles set forth in the Executive 

Order. Because this is not a rulemaking 

action, this is not a significant 

regulatory action as defined in Section 

3(f) of E.O. 12866. In addition, this 

action does not meet the definition of an 

E.O. 13771 regulatory action, and the 

repeal and cost offset requirements of 

E.O. 13771 have not been triggered. 

This action will 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. Therefore, in 

accordance with E.O. 13132 

(Federalism), it is determined that this 

action does not have sufficient 

federalism implications to warrant the 

preparation of a Federalism Assessment. 

List of Subjects in 21 CFR Part 1308 

Administrative practice and 

procedure, Drug traffic control, 

Reporting and recordkeeping 

requirements. 

For the reasons set out above, DEA 

proposes to amend 21 CFR part 1308 as 

follows: 

PART 1308—SCHEDULES OF 

CONTROLLED SUBSTANCES 

■ 1. The authority citation for part 1308 

continues to read as follows: 

Authority: 21 U.S.C. 811, 812, 871(b), 

956(b), unless otherwise noted. 

■ 2. In § 1308.11, add paragraph (h)(49) 

to read as follows: 

§ 1308.11 Schedule I 

* * * * * 

(h) * * * 

(49) 1-(1-(1-(4-bromophenyl)

ethyl)piperidin-4-yl)-1,3-dihydro2H-benzo[d]imidazol-2-one, its 

isomers, esters, ethers, salts and 

salts of isomers, esters and ethers 

(Other names: brorphine; 1-[1-[1- 

(4-bromophenyl)ethyl]-4- 

piperidinyl]-1,3-dihydro-2Hbenzimidazol-2-one) .................... 9098 

* * * * * 

Timothy J. Shea, 

Acting Administrator. 

[FR Doc. 2020–26301 Filed 12–2–20; 8:45 am] 

BILLING CODE 4410–09–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2020–0534; FRL–10016– 

98–Region 9] 

Approval and Promulgation of Air 

Quality State Implementation Plans; 

California; Plumas County; Moderate 

Area Plan for the 2012 PM2.5 NAAQS 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve 

through parallel processing a state 

implementation plan (SIP) revision 

submitted by the State of California to 

address Clean Air Act (CAA or ‘‘Act’’) 

requirements for the 2012 annual fine 

particulate matter (PM2.5) national 

ambient air quality standard (NAAQS or 

‘‘standard’’) in the Plumas County 

Moderate PM2.5 nonattainment area 

(‘‘Portola nonattainment area’’). The 

submitted SIP revision is the State’s 

‘‘Proposed Portola PM2.5 Plan 

Contingency Measure SIP Submittal’’ 

(‘‘Proposed PM2.5 Plan Revision’’), 

which includes a revised City of Portola 

ordinance regulating PM2.5 emission 

sources and the State’s demonstration 

that this submission meets the Moderate 

area contingency measure requirement 

for the 2012 annual PM2.5 NAAQS in the 

Portola nonattainment area. The EPA is 

also proposing to approve the 

contingency measure element of the 

Moderate area attainment plan for the 

Portola nonattainment area, as revised 

and supplemented by the Proposed 

PM2.5 Plan Revision. Because the EPA is 

proceeding by parallel processing, the 

agency is proposing, in the alternative, 

to disapprove the contingency measure 

element of the Moderate area attainment 


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Federal Register / Vol. 85, No. 233 / Thursday, December 3, 2020 / Proposed Rules 78051 

1 78 FR 3086 and 40 CFR 50.18. Unless otherwise 

noted, all references to the PM2.5 NAAQS in this 

document are to the 2012 annual NAAQS of 12.0 

mg/m3 codified at 40 CFR 50.18. 

2 Id. 

3EPA, Air Quality Criteria for Particulate Matter, 

No. EPA/600/P–99/002aF and EPA/600/P–99/ 

002bF, October 2004. 

4 80 FR 2206 (January 15, 2015). 

5From 2000 through early 2013, the Portola PM2.5

monitoring site was located at 161 Nevada Street. 

In 2013, the site was relocated to 420 Gulling Street. 6 84 FR 11208. 

plan if the State does not submit the 

final, adopted PM2.5 Plan Revision in 

substantially the same form before we 

take final action. 

DATES: Any comments on this proposal 

must be received by January 4, 2021. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R09– 

OAR–2020–0534 at https://

www.regulations.gov, or via email to 

Ungvarsky.john@epa.gov. For comments 

submitted at Regulations.gov, follow the 

online instructions for submitting 

comments. Once submitted, comments 

cannot be edited or removed from 

Regulations.gov. For either manner of 

submission, 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 (e.g., audio or video) must 

be accompanied by a written comment. 

The written comment is considered the 

official comment and should include 

discussion of all points you wish to 

make. The EPA will generally not 

consider comments or comment 

contents located outside of the primary 

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

other file sharing system). For 

additional submission methods, please 

contact the person identified in the FOR

FURTHER INFORMATION CONTACT section 

for additional availability information. If 

you need assistance in a language other 

than English or if you are a person with 

disabilities who needs a reasonable 

accommodation at no cost to you, please 

contact the person identified in the FOR

FURTHER INFORMATION CONTACT section. 

FOR FURTHER INFORMATION CONTACT: John 

Ungvarsky, Air Planning Office (AIR–2), 

EPA Region IX, 75 Hawthorne Street, 

San Francisco, CA 94105, (415) 972– 

3963 or ungvarsky.john@epa.gov. 

SUPPLEMENTARY INFORMATION: 

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

or ‘‘our’’ refer to the EPA. 

Table of Contents 

I. Background 

II. Summary of the Proposed PM2.5 Plan 

Revision 

III. Clean Air Act Requirements for PM2.5

Contingency Measures and Other Control 

Measures 

IV. Completeness Review of the Proposed 

PM2.5 Plan Revision 

V. Review of the Proposed PM2.5 Plan 

Revision 

VI. Proposed Actions and Request for Public 

Comment 

VII. Incorporation by Reference 

VIII. Statutory and Executive Order Reviews 

I. Background 

On January 15, 2013, the EPA 

strengthened the primary annual 

NAAQS for particulate matter with a 

diameter of 2.5 microns or less by 

lowering the level from 15.0 micrograms 

per cubic meter (mg/m3) to 12.0 mg/m3

(‘‘2012 PM2.5 NAAQS’’).1 The EPA 

established this standard after 

considering substantial evidence from 

numerous health studies demonstrating 

that serious health effects are associated 

with exposures to PM2.5 concentrations 

above these levels. 

Epidemiological studies have shown 

statistically significant correlations 

between elevated PM2.5 levels and 

premature mortality. Other important 

health effects associated with PM2.5

exposure include aggravation of 

respiratory and cardiovascular disease 

(as indicated by increased hospital 

admissions, emergency room visits, 

absences from school or work, and 

restricted activity days), changes in lung 

function, and increased respiratory 

symptoms. Individuals particularly 

sensitive to PM2.5 exposure include 

older adults, people with heart and lung 

disease, and children.2 PM2.5 can be 

emitted directly into the atmosphere as 

a solid or liquid particle (‘‘primary 

PM2.5’’ or ‘‘direct PM2.5’’) or can be 

formed in the atmosphere (‘‘secondary 

PM2.5’’) as a result of various chemical 

reactions among precursor pollutants 

such as nitrogen oxides, sulfur oxides, 

volatile organic compounds, and 

ammonia.3

Following promulgation of a new or 

revised NAAQS, the EPA is required by 

CAA section 107(d) to designate areas 

throughout the nation as attaining or not 

attaining the NAAQS. The EPA 

designated and classified the Portola 

nonattainment area as ‘‘Moderate’’ 

nonattainment for the 2012 annual 

PM2.5 standards based on ambient 

monitoring data that showed the area 

was above 12.0 mg/m3 for the 2011–2013 

monitoring period.4 For the 2011–2013 

period, the annual PM2.5 design value 

for the Portola area was 12.8 mg/m3

based on monitored readings at the 161 

Nevada Street and 420 Gulling Street 

monitors.5

The Portola PM2.5 nonattainment area 

includes the City of Portola (‘‘Portola’’), 

which has a population of 

approximately 2,100 and is located at an 

elevation of 4,890 feet in an 

intermountain basin isolated by rugged 

mountains. For a precise description of 

the geographic boundaries of the Portola 

PM2.5 nonattainment area, see 40 CFR 

81.305. 

Portola averages 20 inches of 

precipitation annually. From October 

through March the Portola 

nonattainment area has very cold 

temperatures with an average daily low 

temperature of approximately 22 

degrees Fahrenheit. The combination of 

mountainous terrain, cold temperatures, 

and elevation can cause atmospheric 

inversions and impair PM2.5 dispersion, 

especially during the winter. 

The local air district with primary 

responsibility for developing a plan to 

attain the 2012 annual PM2.5 NAAQS in 

this area is the Northern Sierra Air 

Quality Management District (NSAQMD 

or ‘‘District’’). The District worked 

cooperatively with the California Air 

Resources Board (CARB) in preparing 

the Proposed PM2.5 Plan Revision. 

Under state law, authority for regulating 

sources under state jurisdiction in the 

Portola nonattainment area is split 

between the District, which has 

responsibility for regulating stationary 

and most area sources, and CARB, 

which has responsibility for regulating 

most mobile sources. 

On February 28, 2017, California 

submitted the ‘‘Portola Fine Particulate 

Matter (PM2.5) Attainment Plan’’ 

(‘‘Portola PM2.5 Plan’’ or ‘‘Plan’’) to 

address the CAA’s Moderate area 

requirements for the 2012 annual PM2.5

NAAQS in the Portola nonattainment 

area. On March 25, 2019, the EPA 

approved all of the Portola PM2.5 Plan, 

except for the contingency measure 

element.6 The components of the 

Portola PM2.5 Plan that the EPA 

approved include the modeled 

demonstration that the area will attain 

the 2012 annual PM2.5 NAAQS by the 

applicable attainment date, which is 

December 31, 2021; the State and 

District control strategy for attaining the 

NAAQS by this date, including all 

reasonably available control measures 

and control technologies (RACM/RACT) 

and additional reasonable measures 

necessary for expeditious attainment; 

the reasonable further progress (RFP) 

demonstration and related quantitative 

milestones for the October 15, 2019 and 

October 15, 2022 quantitative milestone 

dates applicable to the area; and the 


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7 Id. 

8 83 FR 9213. 

9 83 FR 13871. 

10EPA, ‘‘Strategies for Reducing Residential 

Wood Smoke,’’ Publication No. EPA–456/B–13– 

001, revised March 2013. 

11 83 FR 64774, 64782 (December 18, 2018) 

(proposed action on Portola PM2.5 Plan) and EPA, 

Region IX, ‘‘Technical Support Document for the 

EPA’s Rulemaking for the California State 

Implementation Plan, Northern Sierra Air Quality 

Management District, City of Portola Ordinance 

344, Wood Stove and Fireplace Ordinance,’’ July 

2017 (‘‘Ordinance 344 TSD’’), 6. 

12 83 FR 64774, 64788 (December 18, 2018). 

13Portola PM2.5 Plan, 72–74 (section VI.B, 

‘‘Contingency Measure’’). 

14 84 FR 11208. 

15Center for Biological Diversity, et al. v. Andrew 

Wheeler, Case No. 3:19-cv-02782–EMC, Order (N.D. 

Cal., February 19, 2020). 

16NSAQMD, Resolution 2020–09 (October 26, 

2020). 

17City of Portola, Ordinance No. 359, adopted 

September 9, 2020. 

18NSAQMD, Resolution 2020–09 (October 26, 

2020). 

19 Id. Resolution 2020–09 instructs the District to 

exclude paragraph 15.10.060(B) (concerning 

penalties), section 15.10.100 (Violations), and 

section 15.10.110 (Continuing violations—each day 

being a separate violation) from the SIP submission. 

20Letter dated October 28, 2020, from Richard 

Corey, Executive Officer, CARB, to John Busterud, 

Regional Administrator, EPA Region IX, with 

enclosures. Although both the City and the District 

have adopted City Ordinance No. 359, CARB has 

not yet adopted it. 

21 Id. 

22 81 FR 58010 (August 24, 2016), codified at 40 

CFR part 51, subpart Z. 

23 81 FR 58010, 58066 and Addendum, 42015. 

motor vehicle emissions budgets for 

2019 and 2021.7

As part of the attainment control 

strategy, the Portola PM2.5 Plan relies on 

‘‘Ordinance No. 344: An Ordinance of 

the City of Portola, County of Plumas 

Amending Chapter 15.10 of the City of 

Portola Municipal Code Providing for 

Regulation of Wood Stoves and 

Fireplaces’’ (‘‘City Ordinance No. 344’’) 

to achieve direct PM2.5 emission 

reductions necessary for attainment by 

the December 31, 2021 attainment date. 

The EPA approved City Ordinance No. 

344 into the SIP on March 5, 2018.8 The 

attainment control strategy in the 

Portola PM2.5 Plan also relies on an 

enforceable State commitment to 

implement an incentive grant program 

called the ‘‘Greater Portola Woodstove 

Change-out Program 2016’’ (‘‘Wood 

Stove Program’’) during the 2016 to 

2021 period to fund the replacement of 

uncertified wood stoves with newer, 

EPA-certified devices and to educate 

residents on proper ways to store and 

burn wood. The EPA approved the 

Wood Stove Program into the SIP on 

April 2, 2018.9

City Ordinance No. 344 and the 

District’s Wood Stove Program 

collectively establish most of the 

recommended program elements 

outlined in the EPA’s guidance 

document entitled ‘‘Strategies for 

Reducing Residential Wood Smoke,’’ 10

including a wood burning curtailment 

program in section 15.10.060 of City 

Ordinance No. 344 (Mandatory 

Curtailment of Wood Burning Heaters, 

Wood Burning Fireplaces, Wood-Fired 

Fire Pits and Wood-Fired Cookstoves 

During Stagnant Conditions).11 The 

Portola PM2.5 Plan relies primarily on 

the Wood Stove Program to achieve the 

PM2.5 emission reductions necessary for 

the Portola nonattainment area to attain 

the 2012 annual PM2.5 NAAQS by 

December 31, 2021.12

The Portola PM2.5 Plan also contains 

a contingency measure element in 

section VI.B that identifies the woodburning curtailment provision in section 

15.10.060 of City Ordinance No. 344 

and a District policy designed to 

incentivize certain types of wood stove 

change-outs as contingency measures 

for the 2012 annual PM2.5 NAAQS.13

The EPA did not act on this element of 

the Portola PM2.5 Plan as part of its 

March 25, 2019 final action.14

On May 22, 2019, the Center for 

Biological Diversity filed a complaint in 

the United States District Court for the 

Northern District of California alleging 

that the EPA had, among other things, 

failed to take final action either 

approving or disapproving the 

contingency measure element of the 

Portola PM2.5 Plan. On February 19, 

2020, the court issued an order 

directing, inter alia, that the EPA ‘‘sign 

a notice of final rulemaking to approve, 

disapprove, conditionally approve, or 

approve in part and conditionally 

approve or disapprove in part’’ the 

contingency measure element of the 

Portola PM2.5 Plan, under CAA sections 

110(k)(2)-(4), no later than March 1, 

2021.15

II. Summary of the Proposed PM2.5 Plan 

Revision 

On September 9, 2020, the City of 

Portola adopted ‘‘Ordinance No. 359, 

An Ordinance of the City of Portola, 

County of Plumas Amending Chapter 

15.10 of the City of Portola Municipal 

Code Providing for Regulation of Wood 

Stoves and Fireplaces and the 

Prohibition of the Open Burning of Yard 

Waste’’ (‘‘City Ordinance No. 359’’). City 

Ordinance No. 359 amends City 

Ordinance No. 344, as codified in 

Chapter 15.10 of the Portola Municipal 

Code.16

Specifically, section 15.10.070 

(Curtailment Levels and Period) of City 

Ordinance No. 359 contains a 

contingency measure that revises and 

supplements the contingency measure 

element of the Portola PM2.5 Plan. City 

Ordinance No. 359 also contains new 

provisions that ban all open burning of 

yard waste and debris within the City of 

Portola, with limited exceptions, and 

renumbers several sections of the prior 

version of this ordinance (City 

Ordinance No. 354) without change.17

The additional open burning provisions 

in City Ordinance No. 359 are not part 

of the contingency measure element of 

the Plan. CARB has requested that the 

EPA entirely replace City Ordinance No. 

344 in the SIP with City Ordinance No. 

359.18

On October 26, 2020, the District 

Governing Board adopted City 

Ordinance No. 359 and, through 

Resolution 2020–09, instructed the 

District to submit City Ordinance No. 

359 to CARB for inclusion in the SIP.19

On October 28, 2020, CARB submitted 

City Ordinance No. 359, together with a 

document entitled ‘‘Proposed Portola 

PM2.5 Plan Contingency Measure SIP 

Submittal,’’ October 16, 2020 (hereafter 

‘‘CARB Staff Report’’), to the EPA with 

a request for approval into the SIP 

through the EPA’s parallel processing 

procedures in 40 CFR part 51, appendix 

V, section 2.3.20 We refer to City 

Ordinance No. 359 and the CARB Staff 

Report together as the ‘‘Proposed PM2.5

Plan Revision.’’ CARB has scheduled 

the Proposed PM2.5 Plan Revision for a 

hearing before the CARB Governing 

Board on November 19, 2020, and if it 

is then adopted, CARB will submit the 

final PM2.5 Plan Revision to the EPA for 

approval into the California SIP.21

III. Clean Air Act Requirements for 

PM2.5 Contingency Measures and Other 

Control Measures 

A. Requirements for Contingency 

Measures 

Under CAA section 172(c)(9) and the 

EPA’s implementing regulations for the 

PM2.5 NAAQS (‘‘PM2.5 SIP Requirements 

Rule’’),22 each SIP submission for a 

nonattainment area must include 

contingency measures to be 

implemented if the area fails to meet 

requirements concerning RFP, fails to 

meet requirements concerning 

quantitative milestones, or fails to attain 

the NAAQS by the applicable 

attainment date. Contingency measures 

must be fully adopted rules or control 

measures that are ready to be 

implemented quickly upon being 

triggered and that take effect without 

significant further action by the State or 

the EPA.23 The purpose of the 

contingency measures is to continue 

progress in reducing emissions while a 


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24 40 CFR 51.1014(a). 

25 81 FR 58010, 58066. See also General 

Preamble, 13512, 13543–13544, and Addendum, 

42014–42015. 

26Bahr v. EPA, 836 F.3d 1218, 1235–1237 (9th 

Cir. 2016). 

27 Id. 

28CAA section 110(a)(2)(A). 

29CAA section 110(l). 

30CAA section 193. 

31CAA sections 172(c)(1) and 189(a)(1)(C) and 40 

CFR 51.1009. 

state revises its SIP to meet a missed 

RFP requirement, to meet a missed 

quantitative milestone requirement, or 

to correct ongoing nonattainment. 

Under the PM2.5 SIP Requirements 

Rule, contingency measures must be 

implemented following a determination 

by the EPA that the state has failed: (1) 

To meet any RFP requirement in the 

approved SIP; (2) to meet any 

quantitative milestone in the approved 

SIP; (3) to submit a required quantitative 

milestone report; or (4) to attain the 

applicable PM2.5 NAAQS by the 

applicable attainment date.24 The 

contingency measures adopted as part of 

a PM2.5 attainment plan must consist of 

control measures for the area that are 

not otherwise required to meet other 

nonattainment plan requirements (e.g., 

to meet RACM/RACT requirements) and 

must specify the timeframe within 

which their requirements become 

effective following any of the EPA 

determinations specified in 40 CFR 

51.1014(a). 

Neither the CAA nor the EPA’s 

implementing regulations establish a 

specific level of emission reductions 

that implementation of contingency 

measures must achieve, but EPA 

guidance recommends that contingency 

measures should provide for emission 

reductions equivalent to approximately 

one year of reductions needed for RFP, 

calculated as the overall level of 

reductions needed to demonstrate 

attainment divided by the number of 

years from the base year to the 

attainment year. In general, we expect 

all actions needed to effect full 

implementation of the contingency 

measures to occur within 60 days after 

the EPA notifies the state of a failure to 

attain or to meet an RFP or quantitative 

milestone requirement.25

It has been the EPA’s longstanding 

interpretation of section 172(c)(9) that 

states may rely on existing Federal 

measures (e.g., Federal mobile source 

measures based on the incremental 

turnover of the motor vehicle fleet each 

year) and state or local SIP measures 

already scheduled for implementation 

that provide emissions reductions in 

excess of those needed to meet any 

other nonattainment plan requirements, 

such as RACM/RACT, RFP, or 

expeditious attainment requirements. In 

Bahr v. EPA (‘‘Bahr’’), however, the 

Ninth Circuit Court of Appeals rejected 

the EPA’s interpretation of CAA section 

172(c)(9) as allowing for approval of 

already implemented control measures 

as contingency measures.26 The Ninth 

Circuit concluded that contingency 

measures must be measures that would 

take effect at the time the area fails to 

make RFP or to attain by the applicable 

attainment date, not before.27 Thus, 

within the geographic jurisdiction of the 

Ninth Circuit, states cannot rely on 

already implemented measures to 

comply with the contingency measure 

requirement under CAA section 

172(c)(9). 

To comply with section 172(c)(9), as 

interpreted in the Bahr decision, a state 

must develop, adopt, and submit 

contingency measures to be triggered 

upon a failure to meet an RFP 

milestone, failure to meet requirements 

concerning quantitative milestones, or 

failure to attain the NAAQS by the 

applicable attainment date regardless of 

the extent to which alreadyimplemented measures would achieve 

surplus emission reductions beyond 

those necessary to meet RFP or 

quantitative milestone requirements and 

beyond those projected to achieve 

attainment of the NAAQS. 

B. General Requirements for SIP Control 

Measures 

SIP control measures and revisions 

thereto must be enforceable,28 must not 

interfere with applicable requirements 

concerning attainment and RFP or other 

CAA requirements,29 and must not 

modify certain SIP control requirements 

in nonattainment areas without 

ensuring equivalent or greater emissions 

reductions.30 Generally, in PM2.5

nonattainment areas classified as 

Moderate, SIP control measures must 

also implement RACM, including 

RACT, and additional reasonable 

measures.31

IV. Completeness Review of the 

Proposed PM2.5 Plan Revision 

On October 28, 2020, CARB submitted 

the Proposed PM2.5 Plan Revision with 

a request that the EPA approve the 

submission into the SIP through the 

parallel processing procedures in 40 

CFR part 51, appendix V, section 2.3. 

Parallel processing refers to a process 

that utilizes concurrent state and 

Federal proposed rulemaking actions. 

Generally, the state submits a copy of 

the proposed regulation or other 

revisions to the EPA before conducting 

its public hearing and completing its 

public comment process under state 

law. The EPA reviews this proposed 

state action and prepares a notice of 

proposed rulemaking under Federal 

law. In some cases, the EPA publishes 

its notice of proposed rulemaking in the 

Federal Register during the same time 

frame that the state is holding its own 

public hearing and public comment 

process. The state and the EPA then 

provide for concurrent public comment 

periods on both the state action and 

Federal action on the initial SIP 

submission from the state. If, after 

completing its public comment process 

and after the EPA’s public comment 

process has run, the state materially 

changes its final SIP submission to the 

EPA from the initial proposed 

submission, the EPA evaluates those 

changes and decides whether to publish 

another notice of proposed rulemaking 

in light of those changes or to proceed 

to taking final action on its proposed 

action and describe the state’s changes 

in its final rulemaking action. Any final 

rulemaking action by the EPA will occur 

only after the state formally adopts and 

submits its final submission to the EPA. 

Section 110(k)(1)(B) of the CAA 

requires the EPA to determine whether 

a SIP submission is complete within 60 

days of receipt. This section also 

provides that if the EPA has not 

affirmatively determined a SIP 

submission to be complete or 

incomplete, it will become complete by 

operation of law six months after the 

date of submission. The EPA’s SIP 

completeness criteria are found in 40 

CFR part 51, appendix V. The EPA has 

reviewed the Proposed PM2.5 Plan 

Revision and finds that it fulfills the 

completeness criteria of appendix V, 

with the exception of the requirements 

of paragraphs 2.1(e)–2.1(h), which do 

not apply to plans submitted for parallel 

processing. 

CAA sections 110(a)(1) and (2) and 

110(l) require each state to provide 

reasonable public notice and 

opportunity for public hearing prior to 

the adoption and submission of a SIP 

submission to the EPA. To meet this 

requirement, a state’s SIP submission 

must include evidence that the state 

provided adequate public notice and an 

opportunity for a public hearing, 

consistent with the EPA’s implementing 

regulations in 40 CFR 51.102. However, 

because the Proposed PM2.5 Plan 

Revision was submitted for parallel 

processing, it is exempt from this 

requirement at the time of initial 

submission to the EPA, pursuant to 40 

CFR part 51, appendix V, section 2.3.1. 

CARB and the District are required to 

meet these procedural criteria during 

the parallel processing period, and prior 


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32Portola PM2.5 Plan, 72–74 (section VI.B, 

‘‘Contingency Measure’’). The EPA did not act on 

the contingency measure element of the Portola 

PM2.5 Plan as part of its March 25, 2019 final action 

(84 FR 11208). 

33Portola PM2.5 Plan, 73. 

34City Ordinance No. 344, section 15.10.060. 

35 Id. 

36Portola PM2.5 Plan, 74. 

37Upon the EPA’s final approval of City 

Ordinance No. 359, this ordinance (excluding 

paragraph 15.10.060(B) and sections 15.10.100 and 

15.10.110) will entirely replace City Ordinance No. 

344 in the SIP. NSAQMD, Resolution 2020–09 

(October 26, 2020), 4 (para. 9). 

38City Ordinance No. 359, section 15.10.070. 

39 Id. 

40 Id. 

41CARB Staff Report, 9 (Table 6). 

42CARB Staff Report, 10–13. 43The EPA approved NSAQMD rules 300 to 317 

into the SIP on September 16, 1997 (62 FR 48480) 

and August 19, 1999 (64 FR 45170). 

to adopting and submitting the final SIP 

submission to the EPA. The EPA will 

determine whether the final submission 

meets these requirements at the time of 

any final action on the PM2.5 Plan 

Revision. 

V. Review of the Proposed PM2.5 Plan 

Revision 

A. Revised Contingency Measure 

Element of Portola PM2.5 Plan 

The contingency measure element in 

section VI.B of the Portola PM2.5 Plan, 

as submitted February 28, 2017, 

discusses two potential contingency 

measures for the 2012 PM2.5 NAAQS: (1) 

The mandatory wood-burning 

curtailment provision in section 

15.10.060 of SIP-approved City 

Ordinance No. 344; and (2) a District 

‘‘policy’’ to incentivize only certain 

types of wood stove change-outs 

following a determination by the 

District that the area will not meet the 

2019 RFP emission target.32 The Plan 

indicates that the District identified 

these measures as potential contingency 

measures because they are not 

accounted for in the regional attainment 

demonstration modeling for the 2012 

PM2.5 NAAQS.33

The mandatory curtailment provision 

in SIP-approved City Ordinance No. 344 

becomes effective January 1, 2021, and 

will prohibit the use of wood burning 

heaters, wood burning fireplaces, woodfired fire pits and wood-fired cookstoves 

within city limits whenever the District 

declares a mandatory curtailment 

during the months of January, February, 

November, and December, unless it is 

an approved and currently registered 

EPA-certified wood burning heater.34

The District will declare a mandatory 

curtailment whenever it determines that 

the 24-hour average PM2.5 concentration 

may exceed 30 mg/m3 on a given day 

and that adverse meteorological 

conditions are expected to persist.35

The District ‘‘policy’’ to incentivize 

only certain types of wood stove 

change-outs is not associated with a 

specific control measure. Section VI.B of 

the Portola PM2.5 Plan states that if the 

District estimates, by October 31, 2018, 

that the area will not meet the 2019 RFP 

emission target, the District will only 

incentivize the replacement of older 

wood stoves with pellet stoves, propane 

stoves, or wood stoves meeting the 

‘‘Step 2’’ emission limits in the EPA’s 

new source performance standards 

(NSPS) for wood heating devices.36

City Ordinance No. 359 contains a 

new contingency measure that revises 

and supplements the contingency 

measure element of the Portola PM2.5

Plan.37 The new provision, in section 

15.10.070 of City Ordinance No. 359, 

would strengthen the mandatory 

curtailment provision in SIP-approved 

City Ordinance No. 344 and would 

become effective within 60 days after 

the EPA makes any of the four 

determinations listed in 40 CFR 

51.1014(a).38 Specifically, the 

mandatory curtailment provision in 

section 15.10.070 of City Ordinance No. 

359 would prohibit the use of wood 

burning heaters, wood burning 

fireplaces, wood-fired fire pits, and 

wood-fired cookstoves within city limits 

whenever the District declares a 

mandatory curtailment during the 

months of September through April, 

unless it is an approved and currently 

registered EPA-certified wood burning 

heater.39 The District would declare a 

mandatory curtailment whenever it 

determines that the 24-hour average 

PM2.5 concentration may exceed 20 mg/ 

m3 on a given day and adverse 

meteorological conditions are expected 

to persist.40 CARB estimates that, if 

triggered, the requirements in section 

15.10.070 of City Ordinance No. 359 

would achieve reductions in direct 

PM2.5 emissions of 0.0024 tons per day 

(tpd) in 2022.41

The CARB Staff Report contains the 

State’s quantification of additional 

direct PM2.5 emission reductions 

estimated to be achieved in the Portola 

nonattainment area in 2022, the year 

after the December 31, 2021, attainment 

date applicable to the Portola 

nonattainment area. CARB attributes 

these additional emission reductions to 

ongoing implementation of the Wood 

Stove Program and several other control 

measures and programs that will 

achieve PM2.5 emission reductions 

beyond those emission reductions 

necessary for attainment by the 

December 31, 2021 attainment date, 

including increased participation in a 

voluntary curtailment program outside 

of the City of Portola and the District’s 

disbursement of 2019 Targeted Airshed 

Grant funds to weatherize 30 homes in 

the Portola nonattainment area.42 CARB 

estimates that the emission reductions 

that will result from implementation of 

these other measures and programs, 

together with the emission reductions 

that would result from implementation 

of the contingency measure in City 

Ordinance No. 359, will achieve a total 

of 0.0087 tpd of direct PM2.5 reductions 

in 2022. 

B. Additional Revisions in City 

Ordinance No. 359 

The District implements open burning 

requirements in NSAQMD rules 300— 

317 that apply to a variety of area 

sources such as agricultural burning, 

forest burning, range improvement, and 

residences.43 Neither these rules nor 

City Ordinance No. 344, however, 

restrict the open burning of yard waste. 

City Ordinance No. 359 contains a new 

prohibition on the open burning of yard 

waste, related definitions, and limited 

exemptions. These provisions are not 

part of the contingency measure element 

of City Ordinance No. 359 but 

supplement the existing PM2.5 control 

strategy in the Portola nonattainment 

area. Specifically, City Ordinance No. 

359 contains the following new 

provisions: 

• Definitions of the terms ‘‘debris,’’ 

‘‘open burning,’’ ‘‘recreational fire,’’ and 

‘‘yard waste’’ (section 15.10.020); 

• A provision that bans all open 

burning of yard waste and debris within 

Portola, except as otherwise authorized 

in section 15.10.026 (section 15.10.025); 

and 

• Provisions to exempt three types of 

burning activities from the ban on open 

burning: Certain open outdoor fires used 

only for cooking or for recreation, 

‘‘training burns’’ permitted in advance 

by the Fire Chief and the District, and 

certain health- and safety-related 

burning activities for which the Fire 

Chief and the District have issued 

special burn permits (section 15.10.026). 

City Ordinance No. 359 would also 

renumber the following provisions: 

Section 15.10.080 (Outdoor Wood-Fired 

Boiler Installation Prohibited), located 

at section 15.10.070 in City Ordinance 

No. 344; section 15.10.090 (Wood Stove 

Retailers/Contractors Required to 

Provide Educational Materials), located 

at section 15.10.080 in City Ordinance 

No. 344; and numerous definitions in 

section 15.10.020. These renumbering 

revisions would not affect the substance 

of these provisions. 


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44Portola PM2.5 Plan, 74. 

45 83 FR 64774, 64780–64784 (December 18, 

2018) (describing City Ordinance No. 344 and other 

control measures in the Portola PM2.5 Plan as RACM 

and additional reasonable measures for the 2012 

PM2.5 NAAQS). 

46Compare City Ordinance No. 359, section 

15.10.070 with City Ordinance No. 344, section 

15.10.060. 

47Portola PM2.5 Plan, 73 (Table 19). 

48CARB Staff Report, 9 (Table 6). 

49CARB Staff Report, 10–13. These emission 

reductions are surplus to those relied upon in the 

control strategy for attaining the 2012 PM2.5 NAAQS 

in the Portola PM2.5 Plan because they occur after 

the December 31, 2021 attainment date and/or will 

be achieved through implementation of measures 

adopted after the Plan’s adoption. 

C. EPA Evaluation 

Section 172(c)(9) of the CAA and EPA 

regulations require states to include 

contingency measures in nonattainment 

area plans to address potential failure to 

achieve RFP milestones, failure to meet 

requirements concerning quantitative 

milestones, and failure to attain the 

NAAQS by the applicable attainment 

date. For purposes of evaluating the 

contingency measure element of the 

Proposed PM2.5 Plan Revision, we find 

it useful to distinguish between 

contingency measures to address 

potential failure to attain the NAAQS 

(‘‘attainment contingency measures’’) 

and contingency measures to address 

potential failure to achieve RFP 

milestones or to meet quantitative 

milestone requirements (‘‘RFP 

contingency measures’’). 

1. Contingency Measure Element of 

Portola PM2.5 Plan 

The Portola PM2.5 Plan, as submitted 

February 28, 2017, identifies the 

mandatory curtailment provision in SIPapproved City Ordinance No. 344 as an 

attainment contingency measure and 

identifies a District ‘‘policy’’ to 

incentivize the replacement of older 

wood stoves with only pellet stoves, 

propane stoves, or wood stoves meeting 

the ‘‘Step 2’’ emission limits in the 

EPA’s NSPS for wood heating devices as 

an RFP contingency measure.44

The mandatory curtailment provision 

in section 15.10.060 of City Ordinance 

No. 344 does not qualify for use as a 

contingency measure under CAA 

section 172(c)(9) because City 

Ordinance No. 344 is a SIP-approved 

component of the attainment control 

strategy in the Portola PM2.5 Plan.45

Additionally, because this provision 

takes effect on January 1, 2021, before 

the December 31, 2021 attainment date 

and October 15, 2022 RFP milestone 

date applicable to the area, this measure 

is an already implemented measure that 

cannot be used to comply with the 

section 172(c)(9) contingency measure 

requirement under the Ninth Circuit’s 

decision in Bahr. 

The District’s described ‘‘policy’’ for 

incentivizing the replacement of older 

wood burning devices with cleaner 

residential heating devices also does not 

qualify for use as a contingency measure 

under CAA section 172(c)(9) because it 

is not a fully adopted rule or control 

measure that is ready to be implemented 

quickly upon being triggered and does 

not specify the timeframe within which 

its requirements would take effect 

following any of the EPA 

determinations specified in 40 CFR 

51.1014(a). 

Thus, the contingency measure 

element of the Portola PM2.5 Plan, as 

submitted February 28, 2017, fails to 

satisfy the requirements for contingency 

measures in CAA section 172(c)(9) and 

40 CFR 51.1014. 

2. Revised Contingency Measure for 

Attainment Purposes 

City Ordinance No. 359 contains a 

new contingency measure that revises 

and supplements the contingency 

measure element of the Portola PM2.5

Plan. The new provision, in section 

15.10.070 of City Ordinance No. 359, 

would increase the stringency of the 

mandatory curtailment provision in 

section 15.10.060 of SIP-approved City 

Ordinance No. 344 by lowering the 

threshold at which the District will 

declare a mandatory curtailment from 

30 mg/m3 to 20 mg/m3 and by extending 

the period during which the District 

may declare such mandatory 

curtailments from four months (January 

to December) to eight months 

(September to April).46 This revised 

contingency measure would satisfy the 

requirements of CAA section 172(c)(9) 

and 40 CFR 51.1014 because it: (i) 

Would take effect without significant 

further action by the State or the EPA, 

if the EPA makes any of the four 

determinations listed in 40 CFR 

51.1014(a); (ii) would consist of control 

requirements not otherwise included in 

the attainment control strategy for the 

Portola nonattainment area; and (iii) 

would specify the timeframe within 

which it becomes effective following 

any of the EPA determinations listed in 

40 CFR 51.1014(a). 

We also considered the adequacy of 

the contingency measure from the 

standpoint of the magnitude of emission 

reductions the measure would provide 

if triggered. Neither the CAA nor the 

EPA’s implementing regulations for the 

PM2.5 NAAQS establish a specific 

amount of emission reductions that 

implementation of contingency 

measures must achieve, but we 

generally expect that contingency 

measures should provide for emission 

reductions approximately equivalent to 

one year’s worth of RFP. For the 2012 

PM2.5 NAAQS in the Portola 

nonattainment area, one year’s worth of 

reductions needed for RFP is 

approximately 0.0085 tpd of direct 

PM2.5 reductions.47

The CARB Staff Report contains the 

State’s quantification of the emission 

reductions anticipated from 

implementation of section 15.010.070 of 

City Ordinance No. 359. The State 

estimates that lowering the curtailment 

threshold to 20 mg/m3 and extending the 

potential curtailment period by four 

months would reduce PM2.5 emissions 

by an additional 0.0024 tpd in 2022, the 

year after the attainment year for the 

2012 PM2.5 NAAQS in the Portola 

nonattainment area.48 This estimated 

reduction in emissions from the 

contingency measure alone does not 

achieve one year’s worth of RFP for the 

Portola nonattainment area. However, in 

the Proposed PM2.5 Plan Revision CARB 

provides the larger SIP planning context 

in which to judge the adequacy of the 

contingency measure by identifying 

surplus direct PM2.5 reductions 

estimated to be achieved in 2022 from 

other measures. The surplus emission 

reductions result from already 

implemented measures and programs, 

including the ongoing implementation 

of the Wood Stove Program (0.0059 tpd), 

increased participation in a voluntary 

curtailment program outside of the City 

of Portola (0.0007 tpd), and the District’s 

disbursement of 2019 Targeted Airshed 

Grant funds to weatherize 30 homes in 

the Portola nonattainment area (0.0002 

tpd).49 Because these surplus emission 

reductions result from already 

implemented measures, they cannot 

themselves constitute contingency 

measures. However, these measures 

provide additional reductions that 

CARB believes may be taken into 

consideration when evaluating the 

adequacy of the emission reductions 

from the contingency measure. CARB 

estimates that these other control 

measures and programs, together with 

the contingency measure in City 

Ordinance No. 359, would achieve a 

total of 0.0087 tpd of direct PM2.5

reductions in 2022. 

We have reviewed the State’s 

emission reduction estimates for 2022, 

as shown in the CARB Staff Report, and 

find the calculations reasonable. We 

therefore agree with the State’s 

conclusion that ongoing implementation 

of the measures and programs identified 

by the State in the CARB Staff Report 


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50 40 CFR 51.1013(a)(1); see also 83 FR 64774, 

64790 (December 18, 2018). 

51Letter dated May 5, 2019, from Richard W. 

Corey, Executive Officer, CARB, to Mike Stoker, 

Regional Administrator, EPA Region IX, with 

enclosure. 

52Letter dated November 3, 2020, from Deborah 

Jordan, Acting Regional Administrator, EPA Region 

IX, to Richard W. Corey, Executive Officer, CARB, 

regarding 2019 Quantitative Milestone Report for 

the 2012 annual PM2.5 National Ambient Air 

Quality Standards. 

53Under section 189(c)(3) of the CAA, if a state 

fails to submit a required quantitative milestone 

report or the EPA determines that the area has not 

met an applicable milestone, the EPA must require 

the state, within nine months after such failure or 

determination, to submit a plan revision that 

assures that the state will achieve the next 

milestone (or attain the NAAQS, if there is no next 

milestone) by the applicable date. 

54City Ordinance No. 359, section 10.050.070. 

55CARB Staff Report, 14–15. 

56 Id. 

57 Id. 

58City Ordinance No. 359 modifies a control 

requirement that the EPA approved into the SIP on 

March 5, 2018 (83 FR 9213) (approving City 

Ordinance No. 344 into SIP). Upon the EPA’s final 

approval of City Ordinance No. 359 into the SIP, 

this ordinance (excluding paragraph 15.10.060(B) 

provides surplus emission reductions 

beyond those necessary to demonstrate 

attainment by the December 31, 2021, 

Moderate area attainment date for the 

2012 annual PM2.5 NAAQS in the 

Portola nonattainment area. While such 

surplus emission reductions from 

already implemented measures in the 

year after the 2021 attainment year 

cannot constitute contingency measures 

themselves, we consider them relevant 

in evaluating the adequacy of the 

emission reductions that will result 

from the contingency measure that 

CARB has proposed to adopt in order to 

meet the requirements of section 

172(c)(9). In light of the ongoing 

reductions in emissions of direct PM2.5

achieved by the District measures and 

programs identified in the CARB Staff 

Report, the emission reductions from 

the District contingency measure (i.e., 

section 10.050.070 of City Ordinance 

No. 359) would be sufficient to meet the 

attainment contingency measure 

requirement for the 2012 PM2.5 NAAQS, 

even though the measure would achieve 

emission reductions less than one year’s 

worth of RFP. 

3. Revised Contingency Measure for RFP 

and Quantitative Milestone Purposes 

The applicable quantitative milestone 

dates for the 2012 PM2.5 NAAQS in the 

Portola nonattainment area are October 

15, 2019 and October 15, 2022.50 On 

May 5, 2019, CARB submitted the 

‘‘Portola 2019 Quantitative Milestone 

Report’’ (‘‘2019 QM Report’’) to the 

EPA.51 The 2019 QM Report includes a 

certification from the Governor’s 

designee that the 2019 quantitative 

milestone for the Portola PM2.5

nonattainment area has been achieved 

and a demonstration that the adopted 

control strategy has been fully 

implemented. The 2019 QM Report also 

contains a demonstration of how the 

emission reductions achieved to date 

compare to those required or scheduled 

to meet RFP. The State and District 

conclude in the 2019 QM Report that 

the emission reductions needed to 

demonstrate RFP have been achieved 

and that the 2019 quantitative milestone 

has been met in the Portola 

nonattainment area. On November 3, 

2020, the EPA determined that the 2019 

QM Report was adequate.52

Because the State and District have 

demonstrated that the Portola 

nonattainment area has met its 2019 

quantitative milestones, RFP 

contingency measures for the 2019 

milestone year are no longer needed. 

The sole purpose of RFP contingency 

measures is to provide continued 

progress if an area fails to meet its RFP 

or quantitative milestone requirements. 

Failure to meet RFP or quantitative 

milestone requirements for 2019 would 

have required California to implement 

an RFP contingency measure.53 In this 

case, however, the 2019 QM Report 

demonstrates that actual emission levels 

in 2019 were consistent with the 

approved 2019 RFP milestone year 

targets for direct PM2.5 in the Portola 

PM2.5 Plan and that the adopted control 

strategy is being implemented as 

scheduled. Accordingly, RFP 

contingency measures for 2019 no 

longer have meaning or purpose, and 

the EPA proposes to find that the 

requirement for them is now moot as 

applied to the Portola nonattainment 

area. 

With respect to the 2022 RFP 

milestone year, the contingency 

measure in section 10.050.070 of City 

Ordinance No. 359 would take effect if 

the EPA determines that the area has 

failed to meet a requirement concerning 

RFP or quantitative milestones 54 but 

would not, by itself, be sufficient to 

achieve emission reductions equivalent 

to one year’s worth of RFP. The CARB 

Staff Report, however, states that 

continued implementation of the 

existing wood-stove changeout program 

together with several new measures and 

programs will result in surplus PM2.5

emission reductions in the 2022 RFP 

milestone year and in 2023.55 These 

measures and programs include a 

chimney sweep voucher program, 

additional weatherization of homes, 

wood sheds for households in the 

nonattainment area to keep firewood 

dry, and the provision of a reliable and 

affordable supply of seasoned wood.56

The CARB Staff Report states that funds 

awarded to the District from the EPA’s 

2018 and 2019/2020 Targeted Airshed 

Grants will ensure continuous 

education, outreach, and 

implementation and enforcement of 

these and additional programs designed 

to further reduce PM2.5 emissions in the 

Portola nonattainment area after 2022.57

In light of these ongoing and additional 

reductions in emissions of direct PM2.5, 

the emission reductions from the 

District’s contingency measure (i.e., 

section 10.050.070 of City Ordinance 

No. 359) would be sufficient to meet the 

2022 RFP contingency measure 

requirement for the 2012 PM2.5 NAAQS, 

even though the measure would achieve 

emission reductions less than one year’s 

worth of RFP for the area. 

We note that if the EPA determines 

that the Portola nonattainment area has 

failed to attain the 2012 PM2.5 NAAQS 

by the December 31, 2021 attainment 

date and thereby triggers the 

contingency measure provision in 

section 10.050.070 of City Ordinance 

No. 359, the State would be required to 

a submit a replacement contingency 

measure to address the 2022 milestone 

date. However, timely submittal of a 

quantitative milestone report for the 

2022 milestone date would, if found 

adequate by the EPA, moot the 

contingency measure requirement for 

this milestone date. 

4. Additional Revisions in City 

Ordinance No. 359 

The new prohibition on the open 

burning of yard waste, related 

definitions, and limited exemptions in 

City Ordinance No. 359 are clear and 

the monitoring, recordkeeping, 

reporting and other provisions in the 

ordinance ensure that affected sources 

and regulators can consistently evaluate 

and determine compliance with these 

additional provisions. These revisions 

are therefore consistent with CAA 

requirements regarding enforceability. 

Additionally, these new provisions in 

City Ordinance No. 359 comply with 

CAA section 110(l) because they 

strengthen the SIP by adding new 

requirements for the control of PM2.5

emissions from open burning activities 

in the Portola nonattainment area and 

would not interfere with any applicable 

requirement concerning attainment and 

RFP or any other applicable requirement 

of the CAA. Section 193 does not apply 

to this action because City Ordinance 

No. 359 does not modify a control 

requirement in effect before November 

15, 1990.58 We are not evaluating the 


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and sections 15.10.100 and 15.10.110) will entirely 

replace City Ordinance No. 344. NSAQMD, 

Resolution 2020–09 (October 26, 2020), 4 (para. 9). 

59The EPA previously determined that the 

Portola PM2.5 Plan contains all RACM necessary for 

expeditious attainment of the 2012 PM2.5 NAAQS 

by the December 31, 2021 Moderate area attainment 

date. 84 FR 11208 (March 25, 2019). If the EPA 

determines that the Portola nonattainment area has 

failed to attain the NAAQS by this date, the area 

will be reclassified as a Serious area, and the State 

will be required to submit a revised attainment plan 

for the area that provides for the implementation of 

best available control measures (BACM) within four 

years after such reclassification. CAA sections 

188(b)(2) and 189(b)(1)(B). 

60NSAQMD, Resolution 2020–09 (October 26, 

2020), 3 (paragraphs. 6, 7). 

stringency of these provisions for 

compliance with specific CAA control 

standards at this time and will do so as 

part of our action on any subsequently 

submitted attainment plan for the 

Portola nonattainment area, as 

appropriate.59

The District has excluded from the 

SIP submission paragraph 15.10.060(B) 

and sections 15.10.100 and 15.10.110 of 

City Ordinance No. 359 regarding 

penalties and violations.60 These 

paragraphs are not necessary for SIP 

approval and could lead to confusion 

with respect to similar Federal 

requirements set forth in CAA section 

113. 

VI. Proposed Actions and Request for 

Public Comment 

The EPA is proposing to approve the 

contingency measure element of the 

Portola PM2.5 Plan, as revised and 

supplemented by the Proposed PM2.5

Plan Revision, as meeting the 

contingency measure requirements of 

CAA section 172(c)(9) and 40 CFR 

51.1014 for the 2012 annual PM2.5

NAAQS in the Portola nonattainment 

area. Our proposed approval is 

contingent upon the State’s submission 

of the final, adopted PM2.5 Plan Revision 

in time for the EPA to finalize this 

action by March 1, 2021, our courtordered deadline for taking final action 

on the contingency measure element of 

the Plan. The EPA also proposes to find 

that the requirement for RFP 

contingency measures for the 2019 

milestone date is moot as applied to the 

Portola nonattainment area, because the 

State’s and District’s 2019 QM Report 

adequately demonstrates that the 

emission reductions needed to 

demonstrate RFP have been achieved 

and that the 2019 quantitative milestone 

has been met in the Portola 

nonattainment area. 

The EPA is proposing, in the 

alternative, to disapprove the 

contingency measure element of the 

Portola PM2.5 Plan, as submitted 

February 28, 2017 (section VI.B of the 

Plan), if the State fails to adopt and 

submit the PM2.5 Plan Revision in time 

for the EPA to take final action by 

March 1, 2021, because the contingency 

measure element of the Plan as 

submitted February 28, 2017, fails to 

satisfy the contingency measure 

requirements in CAA section 172(c)(9) 

and 40 CFR 51.1014. 

If we finalize the proposed 

disapproval, the offset sanction in CAA 

section 179(b)(2) would apply in the 

Portola PM2.5 nonattainment area 18 

months after the effective date of the 

final disapproval. The highway funding 

sanctions in CAA section 179(b)(1) 

would apply in the area six months after 

the offset sanction is imposed. These 

sanctions would apply unless we take 

final action to approve SIP revisions 

that meet the relevant CAA 

requirements prior to the time the 

sanctions would take effect. In addition 

to the sanctions, CAA section 110(c) 

provides that the EPA must promulgate 

a Federal implementation plan 

addressing the deficiency that is the 

basis for a disapproval, two years after 

the effective date of the disapproval, 

unless we have approved a revised SIP 

submission correcting the deficiency 

before that date. 

Finally, the EPA is proposing to 

approve the new provisions in City 

Ordinance No. 359 concerning open 

burning of yard wastes and other debris, 

including related definitions and 

exemptions. These provisions 

strengthen the SIP and are consistent 

with CAA requirements regarding 

enforceability and SIP provisions. At the 

State’s and District’s request, we are not 

acting on paragraph 15.10.060(B), 

section 15.10.100, or section 15.10.110 

of City Ordinance No. 359. 

We will accept comments from the 

public on these proposals for the next 

30 days. The deadline and instructions 

for submission of comments are 

provided in the DATES and ADDRESSES

sections at the beginning of this 

preamble. 

VII. Incorporation by Reference 

In this rule, the EPA is proposing to 

include in a final EPA rule regulatory 

text that includes incorporation by 

reference. In accordance with 

requirements of 1 CFR 51.5, the EPA is 

proposing to incorporate by reference 

the CARB measure described in Section 

II of this preamble (City Ordinance No. 

359). The EPA has made, and will 

continue to make, these materials 

available through www.regulations.gov 

and at the EPA Region IX Office (please 

contact the person identified in the FOR

FURTHER INFORMATION CONTACT section of 

this preamble for more information). 

VIII. Statutory and Executive Order 

Reviews 

Under the Clean Air Act, the 

Administrator is required to approve a 

SIP submission that complies with the 

provisions of the Act and applicable 

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

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

submissions, the EPA’s role is to 

approve state choices, provided that 

they meet the criteria of the Clean Air 

Act. Accordingly, this proposed action 

merely proposes to approve, or 

conditionally approve, state plans as 

meeting Federal requirements and does 

not impose additional requirements 

beyond those imposed by state law. For 

that reason, this proposed action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Orders 12866 (58 FR 51735, 

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

January 21, 2011); 

• Is not an Executive Order 13771 (82 

FR 9339, February 2, 2017) regulatory 

action because SIP approvals are 

exempted under Executive Order 12866; 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

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

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

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

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

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

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

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

application of those requirements would 

be inconsistent with the Clean Air Act; 

and 

• Does not provide the EPA with the 

discretionary authority to address 

disproportionate human health or 

environmental effects with practical, 

appropriate, and legally permissible 

methods under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, the SIP is not approved 

to apply on any Indian reservation land 


khammond on DSKJM1Z7X2PROD with PROPOSALS
78058 Federal Register / Vol. 85, No. 233 / Thursday, December 3, 2020 / Proposed Rules 

1ADS, as defined by SAE International and as 

used in this document, refers to driving automation 

or in any other area where the EPA or 

an Indian tribe has demonstrated that a 

tribe has jurisdiction. In those areas of 

Indian country, the proposed rule does 

not have tribal implications and will not 

impose substantial direct costs on tribal 

governments or preempt tribal law as 

specified by Executive Order 13175 (65 

FR 67249, November 9, 2000). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Ammonia, 

Incorporation by reference, 

Intergovernmental relations, Nitrogen 

dioxide, Particulate matter, Reporting 

and recordkeeping requirements, Sulfur 

dioxide, Volatile organic compounds. 

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

Dated: November 17, 2020. 

John Busterud, 

Regional Administrator, Region IX. 

[FR Doc. 2020–26648 Filed 12–2–20; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF TRANSPORTATION 

National Highway Traffic Safety 

Administration 

49 CFR Part 571 

[Docket No. NHTSA–2020–0106] 

RIN 2127–AM15 

Framework for Automated Driving 

System Safety 

AGENCY: National Highway Traffic 

Safety Administration (NHTSA), 

Department of Transportation (DOT). 

ACTION: Advance notice of proposed 

rulemaking (ANPRM). 

SUMMARY: NHTSA is requesting 

comment on the development of a 

framework for Automated Driving 

System (ADS) safety. The framework 

would objectively define, assess, and 

manage the safety of ADS performance 

while ensuring the needed flexibility to 

enable further innovation. The Agency 

is seeking to draw upon existing Federal 

and non-Federal foundational efforts 

and tools in structuring the framework 

as ADS continue to develop. NHTSA 

seeks specific feedback on key 

components that can meet the need for 

motor vehicle safety while enabling 

innovative designs, in a manner 

consistent with agency authorities. 

DATES: Written comments are due no 

later than February 1, 2021. 

ADDRESSES: Comments must refer to the 

docket number above and be submitted 

by one of the following methods: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov. Follow the 

online instructions for submitting 

comments. 

• Mail: Docket Management Facility, 

M–30, U.S. Department of 

Transportation, West Building, Ground 

Floor, Room W12–140, 1200 New Jersey 

Avenue SE, Washington, DC 20590. 

• Hand Delivery or Courier: U.S. 

Department of Transportation, West 

Building, Ground Floor, Room W12– 

140, 1200 New Jersey Avenue SE, 

Washington, DC, between 9 a.m. and 5 

p.m. Eastern time, Monday through 

Friday, except Federal holidays. To be 

sure someone is there to help you, 

please call (202) 366–9322 before 

coming. 

• Fax: 202–493–2251. 

Regardless of how you submit your 

comments, you must include the docket 

number identified in the heading of this 

document. 

Note that all comments received, 

including any personal information 

provided, will be posted without change 

to http://www.regulations.gov. Please 

see the ‘‘Privacy Act’’ heading below. 

You may call the Docket Management 

Facility at 202–366–9322. For access to 

the docket to read background 

documents or comments received, go to 

http://www.regulations.gov or the street 

address listed above. To be sure 

someone is there to help you, please call 

(202) 366–9322 before coming. We will 

continue to file relevant information in 

the Docket as it becomes available. 

Privacy Act: In accordance with 5 

U.S.C. 553(c), DOT solicits comments 

from the public to inform its decisionmaking process. DOT posts these 

comments, without edit, including any 

personal information the commenter 

provides, to http://www.regulations.gov, 

as described in the system of records 

notice (DOT/ALL–14 FDMS), which can 

be reviewed at https://

www.transportation.gov/privacy. 

Anyone can search the electronic form 

of all comments received into any of our 

dockets by the name of the individual 

submitting the comment (or signing the 

comment, if submitted on behalf of an 

association, business, labor union, etc.). 

FOR FURTHER INFORMATION CONTACT: 

For legal issues, Sara R. Bennett, 

Attorney-Advisor, Vehicle Rulemaking 

and Harmonization, Office of Chief 

Counsel, 202–366–2992, email 

Sara.Bennett@dot.gov. 

For research issues, Lori Summers, 

Director, Office of Vehicle Crash 

Avoidance and Electronic Controls 

Research, telephone: 202–366–4917, 

email Lori.Summers@dot.gov. 

For rulemaking issues, Tim J. 

Johnson, Acting Director, Office of 

Crash Avoidance Standards, telephone 

202–366–1810, email Tim.Johnson@

dot.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Executive Summary 

II. Introduction 

A. Development of ADS 

B. Potential Benefits of ADS 

C. NHTSA Regulatory Activity To Remove 

Unintentional and Unnecessary Barriers 

to the Development and Deployment of 

ADS Vehicles 

D. Need for a Safety Framework, Including 

Implementation and Oversight 

Mechanisms, for Federal Efforts To 

Address ADS Performance 

III. Safety Framework—Core Elements, 

Potential Approaches, and Current 

Activities 

A. Engineering Measures—Core Elements 

of ADS Safety Performance 

1. Core ADS Safety Functions 

2. Other Safety Functions 

3. Federal Engineering Measure 

Development Efforts 

4. Other Notable Efforts Under 

Consideration as Engineering Measures 

B. Process Measures—Safety Risk 

Minimization in the Design, 

Development, and Refinement of ADS 

1. Functional Safety 

2. Safety of the Intended Functionality 

3. UL 4600 

IV. Safety Framework—Administrative 

Mechanisms for Implementation and 

Oversight 

A. Voluntary Mechanisms 

1. Safety Self-Assessment and Other 

Disclosure/Reporting 

2. New Car Assessment Program (NCAP) 

3. Operational Guidance 

B. Regulatory Mechanisms 

1. Mandatory Reporting and/or Disclosure 

2. NHTSA’s FMVSS Setting Authority 

3. Applying the Established FMVSS 

Framework to ADS Safety Principles 

4. Reforming How NHTSA Drafts New 

FMVSS To Keep Pace With Rapidly 

Evolving Technology 

5. Examples of Regulatory Approaches 

D. Timing and Phasing of FMVSS 

Development and Implementation 

E. Critical Factors Considered in Designing, 

Assessing, and Selecting Administrative 

Mechanisms 

V. Questions and Requests 

VI. Preparation and Submission of Written 

Comments 

VII. Regulatory Notices 

I. Executive Summary 

Over the past several years, NHTSA 

has published numerous research 

reports, guidance documents, advance 

notices of proposed rulemakings, and, 

on March 30, 2020 (85 FR 17624), a 

notice of proposed rulemaking relating 

to the development of vehicles 

equipped with Automated Driving 

Systems (ADS).1 An ADS is the 


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