Air Plan Revisions; California; Vehicle Inspection and Maintenance Contingency Measure, 87981-87988 [2023-27688]
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Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Proposed Rules
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Federal agency to prepare a written
statement assessing the effects of any
Federal mandate in a proposed or final
agency rule that may result in an
expenditure of $100 million or more
(adjusted annually for inflation with the
base year 1995) in any one year by State,
local, and Tribal governments, in the
aggregate, or by the private sector.85 In
2023, that threshold is approximately
$177 million. For purposes of the
Unfunded Mandates Reform Act, as well
as E.O. 12875, this proposal does not
include any Federal mandate that the
Department expects would result in
such expenditures by State, local, or
Tribal governments, or the private
sector.86
VIII. Federalism
E.O. 13132 outlines the fundamental
principles of federalism. It also requires
Federal agencies to adhere to specific
criteria in formulating and
implementing policies that have
‘‘substantial direct effects’’ on the
States, the relationship between the
National Government and States, or on
the distribution of power and
responsibilities among the various
levels of government. Federal agencies
promulgating regulations that have
these federalism implications must
consult with State and local officials
and describe the extent of their
consultation and the nature of the
concerns of State and local officials in
the preamble to the proposal. The
preamble to the 2018 AHP Rule
included a discussion of federalism
implications of the rule, which largely
focused on and confirmed that the 2018
AHP Rule did not modify State
authority under ERISA section
514(b)(6), which gives the Department
and State insurance regulators joint
authority over MEWAs, including
AHPs, to ensure appropriate regulatory
and consumer protections for employers
and employees relying on an AHP for
health care coverage. Because the 2018
AHP Rule was never fully implemented
and the Department is not aware of any
entities currently relying on the 2018
AHP Rule, the Department does not
believe its rescission would have a
substantial direct effect 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 that were
discussed in the 2018 AHP Rule.
Nonetheless, the Department notes that
the level and type of State regulation of
MEWAs vary widely. The Department is
85 2
U.S.C. 1501 et seq. (1995).
FR 58093 (Oct. 28, 1993).
86 58
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aware that some States have enacted or
are considering State laws modeled on
the 2018 AHP Rule that are intended to
recognize AHPs as employee benefit
plans for purposes of State regulation. In
fact, CMS on behalf of HHS recently
issued a final determination pursuant to
section 2723(a)(2) of the PHS Act,
section 1321(c)(2) of the ACA, and 45
CFR 150.219 that the Commonwealth of
Virginia has not corrected the failure to
substantially enforce certain Federal
market reforms with respect to issuers
offering health insurance coverage
through an association of real estate
salespersons under such a State law,
specifically section 38.2–3521.1 G of the
Code of Virginia, as enacted by HB 768/
SB 335 (2022).87 The Department is
interested in input from affected States,
including State insurance regulators and
other State officials, regarding whether
they see potential federalism
implications that might arise from
rescission of the 2018 AHP Rule.
List of Subjects in 29 CFR Part 2510
Employee benefit plans, Pensions.
For the reasons stated in the
preamble, the Department of Labor
proposes to amend 29 CFR part 2510 as
follows:
PART 2510—DEFINITIONS OF TERMS
USED IN SUBCHAPTERS C, D, E, F, G,
AND L OF THIS CHAPTER
1. The authority citation for part 2510
is revised to read as follows:
■
Authority: 29 U.S.C. 1002(1), 1002(2),
1002(3), 1002(5), 1002(16), 1002(21),
1002(37), 1002(38), 1002(40), 1002(42),
1002(43), 1002(44), 1031, and 1135; and
Secretary of Labor’s Order No. 1–2011, 77 FR
1088. Secs. 2510.3–101 and 2510.3–102 also
issued under sec. 102 of Reorganization Plan
No. 4 of 1978, 5 U.S.C. App. (E.O. 12108, 44
FR 1065, 3 CFR, 1978 Comp., p. 275) and 29
U.S.C. 1135 note.
2. Section 2510.3–3 is amended by
revising paragraph (c) introductory text
to read as follows:
■
§ 2510.3–3
Employee benefit plan.
*
*
*
*
*
(c) Employees. For purposes of this
section and except as provided in
§ 2510.3–55(d):
*
*
*
*
*
§ 2510.3–5
■
[Removed and Reserved]
3. Remove and reserve § 2510.3–5.
87 The CMS letter, dated September 6, 2023, is
available at www.cms.gov/files/document/lettervirginia-governor-and-insurnace-commissioner-hb768sb-335-2022-final-determination.pdf.
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Signed at Washington, DC, this 11th day of
December 2023.
Lisa M. Gomez,
Assistant Secretary, Employee Benefits
Security Administration, U.S. Department of
Labor.
[FR Doc. 2023–27510 Filed 12–19–23; 8:45 am]
BILLING CODE 4510–29–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R09–OAR–2023–0524; FRL–11525–
01–R9]
Air Plan Revisions; California; Vehicle
Inspection and Maintenance
Contingency Measure
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
Under the Clean Air Act
(CAA or ‘‘Act’’), the Environmental
Protection Agency (EPA) is proposing to
approve revisions to the California State
Implementation Plan (SIP). These
revisions concern an amendment to the
California motor vehicle inspection and
maintenance (I/M) program (also
referred to as ‘‘Smog Check’’) to include
a contingency measure that, if triggered,
would narrow the Smog Check
inspection exemption for newer model
year vehicles in certain California
nonattainment areas. The EPA is
proposing to approve, as part of the
California SIP, the contingency measure
and a related statutory provision that
authorizes the contingency measure
because they meet all the applicable
requirements. We are taking comments
on this proposal and plan to follow with
a final action.
DATES: Comments must be received on
or before January 19, 2024.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R09–
OAR–2023–0524 at https://
www.regulations.gov. For comments
submitted at Regulations.gov, follow the
online instructions for submitting
comments. Once submitted, comments
cannot be edited or removed from
Regulations.gov. The EPA may publish
any comment received to its public
docket. Do not submit electronically any
information you consider to be
Confidential Business Information (CBI)
or other information whose disclosure is
restricted by statute. Multimedia
submissions (audio, video, etc.) must be
accompanied by a written comment.
The written comment is considered the
official comment and should include
SUMMARY:
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discussion of all points you wish to
make. The EPA will generally not
consider comments or comment
contents located outside of the primary
submission (i.e. on the web, cloud, or
other file sharing system). For
additional submission methods, please
contact the person identified in the FOR
FURTHER INFORMATION CONTACT section.
For the full EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
https://www.epa.gov/dockets/
commenting-epa-dockets. If you need
assistance in a language other than
English or if you are a person with
disabilities who needs a reasonable
accommodation at no cost to you, please
contact the person identified in the FOR
FURTHER INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT:
Jeffrey Buss, EPA Region IX, 75
Hawthorne St., San Francisco, CA
94105. By phone: (415) 947–4152 or by
email at Buss.Jeffrey@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document, ‘‘we,’’ ‘‘us’’
and ‘‘our’’ refer to the EPA.
Table of Contents
I. The State’s Submittal
A. What measure did the State submit?
B. Are there other versions of this measure?
C. What is the purpose of the submitted
measure?
II. The EPA’s Evaluation and Action
A. How is the EPA evaluating the measure?
B. Does the measure meet the evaluation
criteria?
C. Did the State consider environmental
justice in developing this measure?
D. Proposed Action and Public Comments
III. Incorporation by Reference
IV. Statutory and Executive Order Reviews
I. The State’s Submittal
A. What measure did the State submit?
Table 1 lists the measure and the
related statutory provision addressed by
this proposal with the dates they were
adopted and submitted by the California
Air Resources Board (CARB).
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TABLE 1—SUBMITTED MEASURE AND STATUTORY PROVISION
Agency
Statute No.
Measure/statutory provision title
Adopted/amended/
revised
CARB ....
Not Applicable ......................................................
October 26, 2023 ...........
November 13, 2023.
CARB ....
CA Health & Safety Code (H&SC) section
44011(a)(4)(A) and (B).
California Smog Check Contingency Measure
State Implementation Plan Revision.
Certificate of compliance or noncompliance; biennial requirement; exceptions; inspections;
exemption from testing for collector motor vehicle.
Effective on October 10,
2017.
November 13, 2023.
CARB’s November 13, 2023 SIP
submission includes the ‘‘California
Smog Check Contingency Measure State
Implementation Plan Revision’’
(Released: September 15, 2023) (‘‘Smog
Check Contingency Measure SIP’’). The
Smog Check Contingency Measure itself
is presented in Section 4 of the Smog
Check Contingency Measure SIP. Other
sections address the contingency
measure requirements, discuss the
opportunities for CARB to adopt
contingency measures, provide the
background on the California Smog
Check program, and present the
emission reductions estimates for the
ten California nonattainment areas for
which the Smog Check Contingency
Measure was developed. The
appendices included with the Smog
Check Contingency Measure SIP include
an infeasibility analysis, documentation
of emissions estimates, and California
H&SC section 44011(a)(4)(A) and (B),
effective October 10, 2017. The SIP
submission also includes the Notice of
Public Hearing, dated September 15,
2023, and CARB Resolution 23–20
(October 26, 2023) adopting the Smog
Check Contingency Measure SIP as a
revision to the California SIP.
The EPA has reviewed the November
13, 2023 SIP submission of the Smog
Check Contingency Measure SIP and
finds it to be administratively complete
for the purposes of CAA section
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110(k)(1), effective upon publication of
this proposed rule.1
B. Are there other versions of this
measure?
There is no previously approved
version of the submitted contingency
measure. We approved an earlier
version of California H&SC section
44011 in our most recent final action
approving the regulatory and statutory
foundation for the California Smog
Check program.2
C. What is the purpose of the submitted
measure?
Emissions of volatile organic
compounds (VOCs) and oxides of
nitrogen (NOX) contribute to the
production of ground-level ozone, smog
and particulate matter (PM), which
harm human health and the
environment. The EPA has established
national ambient air quality standards
(NAAQS) to protect public health and
welfare for certain pervasive air
pollutants, including ozone and fine PM
(PM2.5). Section 110 of the CAA requires
states to adopt and submit plans (‘‘State
Implementation Plans,’’ or ‘‘SIPs’’) that
provide for implementation,
1 EPA Region 9 SIP Completeness Checklist,
November 20, 2023.
2 75 FR 38023 (July 1, 2010). See 40 CFR
52.220(c)(372)(ii)(A)(3). California H&SC section
44011 is found in Division 26, Part 5, Chapter 5,
Article 2 of the California H&SC. The existing SIP
version of California H&SC section 44011 is the
version that was operative on April 1, 2005.
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Submitted
maintenance, and enforcement of the
NAAQS within such state. Section
110(a) of the CAA requires SIPs to
include enforceable emission
limitations and other control measures,
means or techniques to meet CAA SIP
requirements, such as regulations that
control VOC, NOX, and PM emissions.
Additionally, section 182(b)(4) of the
CAA requires states with ozone
nonattainment areas classified under
subpart 2 as Moderate to submit SIP
revisions that provide for the
implementation of a ‘‘Basic’’ vehicle
inspection and maintenance (I/M)
program in those areas. Section
182(c)(3) of the CAA requires states with
ozone nonattainment areas classified
under subpart 2 as Serious or above to
submit SIP revisions that provide for the
implementation of an ‘‘Enhanced’’ I/M
program in certain urbanized portions of
those areas.3
As a general matter, Basic and
Enhanced I/M programs both achieve
their objective by identifying vehicles
that have high emissions due to one or
more malfunctions and requiring them
to be repaired. An Enhanced program
covers more of the vehicles in operation
and has additional features to better
assure that all vehicles are tested
properly and effectively repaired. The
EPA has established specific
3 The CAA I/M SIP requirements apply to
Moderate and above nonattainment areas for the
2008 and 2015 ozone NAAQS pursuant to 40 CFR
51.1102 (for the 2008 ozone NAAQS) and 40 CFR
51.1302 (for the 2015 ozone NAAQS).
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requirements for Basic and Enhanced I/
M programs in 40 CFR part 51, subpart
S (‘‘The EPA’s I/M regulation’’). The
EPA’s I/M regulation establishes
minimum performance standards for
Basic and Enhanced I/M programs as
well as requirements for certain
elements of the programs, including,
among other elements, test frequency,
vehicle coverage, test procedures and
standards, stations and inspectors, and
data collection, analysis, and reporting.4
The EPA most recently approved
California’s Smog Check program into
its SIP in 2010, and in that action, the
EPA approved the program as meeting
the applicable I/M requirements for the
various nonattainment areas in the
State.5 The California Bureau of
Automotive Repair (BAR) implements
the SIP-approved Smog Check program
in California, including oversight of the
automotive repair industry and
administration of the State’s vehicle
emissions reduction and safety
programs. The California Department of
Motor Vehicles (DMV) administers
motor vehicle registration and licensing
and supports BAR in administering the
Smog Check program.6
Section 172(c)(9) of the CAA requires
states with nonattainment areas to
submit SIP revisions that provide for the
implementation of specific measures,
referred to as contingency measures, to
be undertaken if the area fails to make
reasonable further progress (RFP) or
fails to attain the NAAQS by the
applicable attainment date. Section
172(c)(9) of the CAA further specifies
that contingency measures must be
structured so as to take effect without
further action by the state or the EPA.
For ozone nonattainment areas
classified as Serious and above, CAA
section 182(c)(9) requires the SIP to
include contingency measures to be
undertaken if the area fails to meet any
applicable RFP milestone. For PM2.5
nonattainment areas, the EPA’s PM2.5
SIP Requirements Rule 7 requires the
SIP to include contingency measures to
be undertaken following a
determination by the EPA that the area
has failed: (1) to meet any RFP
requirement in an attainment plan
approved in accordance with 40 CFR
51.1012; (2) to meet any quantitative
milestone in an attainment plan
approved in accordance with 40 CFR
51.1013; (3) to submit a quantitative
milestone report required under 40 CFR
51.1013(b); or, (4) to attain the
4 40
CFR part 51, subpart S, sections 350–373.
FR 38023 (July 1, 2010).
6 Smog Check Contingency Measure SIP, at page
15.
7 81 FR 58010 (August 24, 2016).
5 75
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applicable PM2.5 NAAQS by the
applicable attainment date.8
Contingency measures must be
designed so as to be implemented
prospectively and conditionally upon a
triggering event; already-implemented
control measures may not serve as
contingency measures even if they
provide emissions reductions beyond
those needed for any other CAA
purpose.9 Contingency measures must
also consist of control measures that are
not otherwise included in the control
strategy or that achieve emissions
reductions not otherwise relied upon in
the control strategy for the area to meet
RFP or to demonstrate attainment; and
must specify the timeframe within
which its requirements become effective
following a determination by the EPA
that triggers the contingency measure.10
Also, SIPs addressing the contingency
measure requirement must contain a
description of the specific trigger
mechanisms for the contingency
measure(s) and specify a schedule for
implementation.11 Generally, the EPA
expects contingency measures to be
implemented within approximately 60
days of a triggering event, and that the
implemented contingency measures
achieve the additional emissions
reductions within a year of the
triggering event.
The purpose of this SIP revision is to
include the Smog Check Contingency
Measure into the California SIP to
address, in part, the contingency
measure requirements for certain
nonattainment areas with respect to
certain ozone and PM2.5 NAAQS.12 The
applicable nonattainment areas and
NAAQS are Coachella Valley (2008 and
2015 ozone NAAQS), Eastern Kern
County (2008 and 2015 ozone NAAQS),
Mariposa County (2015 ozone NAAQS),
Sacramento Metro Area (2008 and 2015
ozone NAAQS), San Diego County (2008
and 2015 ozone NAAQS), San Joaquin
Valley (1997, 2008, and 2015 ozone
NAAQS; 1997 annual, 2006 24-hour,
and 2012 annual PM2.5 NAAQS), South
Coast Air Basin (2008 and 2015 ozone
NAAQS; 2012 annual PM2.5 NAAQS),
Ventura County (2015 ozone NAAQS),
Western Mojave Desert (2008 and 2015
CFR 51.1014(a).
Bahr v. EPA, 836 F.3d 1218, at 1235–1237
(9th Cir. 2016).
10 40 CFR 51.1014(b).
11 40 CFR 51.1014(c).
12 Smog Check Contingency Measure SIP, pages
11–12: ‘‘The Measure consists of a triggered
contingency measure that, if triggered, would
change the exemptions for motor vehicles in the
California Smog Check Program for the relevant
local air district and applicable standard as
specified in Table 1 that, together with the local air
districts’ contingency measures, addresses the
contingency measure requirements of the Act.’’
87983
ozone NAAQS), and Western Nevada
County (2015 ozone NAAQS).13
Under the current California Smog
Check program, certain vehicles are
exempt from the biennial inspection
requirement, including vehicles eight or
fewer model years old. The Smog Check
Contingency Measure, if triggered, will
reduce this exemption 14 to seven model
years in the nonattainment area at issue
upon the first triggering event and to six
model years in the nonattainment area
at issue upon a second triggering event.
Reducing the inspection exemption will
increase the number of inspected
vehicles and therefore result in
additional emission reductions. CARB is
authorized under California H&SC
section 44011(a)(4)(B)(ii) to narrow the
newer model year vehicle inspection
exemption from eight or fewer model
years old, to seven or fewer model years
old, and then to six or less model years
old if CARB makes certain findings.
Pursuant to the Smog Check
Contingency Measure, within 30 days of
the EPA’s determination that a
nonattainment area covered by the
measure has failed to meet a reasonable
further progress (RFP) milestone, meet
an qualitative milestone, submit a
required quantitative milestone report
or milestone compliance demonstration,
or attain the relevant NAAQS by the
applicable attainment date, CARB will
be obligated to transmit a letter to BAR
and the DMV finding that providing an
exemption from Smog Check for certain
vehicles in the area at issue will
prohibit the State from meeting the
State’s commitments with respect to the
SIP required by the CAA, effectuating a
reduction in the Smog Check vehicle
inspection exemption to begin with the
new calendar year.15
II. The EPA’s Evaluation and Action
A. How is the EPA evaluating the
measure?
The EPA has evaluated the Smog
Check Contingency Measure SIP against
the applicable procedural and
substantive requirements of the CAA for
SIPs and SIP revisions and is proposing
to conclude that the Smog Check
Contingency Measure SIP meets all of
the applicable requirements. A SIP must
8 40
9 See
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13 Smog Check Contingency Measure SIP, Table 1,
at page 3.
14 The statutory provision included with the
Smog Check Contingency Measure SIP (California
H&SC section 44011(a)(4)(A) and (B)) refers to the
deferral in applicability of the biennial Smog Check
inspection requirement based on the age of the
vehicle (in model years) as an ‘‘exception’’ rather
than as an ‘‘exemption.’’ Our I/M regulations use
the term ‘‘exemption’’ for such provisions, and we
do so as well in this document.
15 Smog Check Contingency Measure SIP, at page
16–17.
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include enforceable emission
limitations and other control measures,
means, or techniques, as well as
schedules and timetables for
compliance, as may be necessary to
meet the requirements of the Act (see
CAA section 110(a)(2)(A)); provide
necessary assurances that the state will
have adequate personnel, funding, and
authority under state law to carry out
such SIP (and is not prohibited by any
provision of federal or state law from
carrying out such SIP) (see CAA section
110(a)(2)(E)); be adopted by a state after
reasonable notice and public hearing
(see CAA section 110(l)); and not
interfere with any applicable
requirement concerning attainment and
reasonable further progress, or any other
applicable requirement of the Act (see
CAA section 110(l)).16 We are also
evaluating whether the measure meets
the requirements for contingency
measures for ozone and PM2.5
nonattainment areas as specified in
CAA sections 172(c)(9) and 182(c)(9)
and 40 CFR 51.1014.
B. Does the measure meet the evaluation
criteria?
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1. Did the State provide for reasonable
public notice and hearing prior to
adoption?
Under CAA sections 110(a)(1),
110(a)(2), and 110(l), states must adopt
and submit SIP revisions after
reasonable notice and public hearing. In
40 CFR 51.102(d), the EPA specifies that
reasonable public notice in this context
is at least 30 days.
CARB adopted the Smog Check
Contingency Measure SIP on October
26, 2023, through Resolution 23–20
following a public hearing held on that
same day. Prior to adoption, CARB
published notice on September 15, 2023
of an October 26, 2023, public hearing,
and provided a 30-day written comment
period. CARB submitted the Smog
Check Contingency Measure SIP to the
EPA on November 13, 2023, along with
various other materials comprising the
SIP submission package, including
copies of public comments received
during the comment period and CARB’s
responses to the comments.
Based on the materials provided in
the November 13, 2023 SIP submission
16 The Smog Check Contingency Measure SIP is
also not prohibited under CAA section 193, which
prohibits any pre-1990 SIP control requirement
relating to nonattainment pollutants in
nonattainment areas from being modified unless the
SIP is revised to insure equivalent or greater
emission reductions of such air pollutants, because,
by narrowing an exemption to testing, the Smog
Check Contingency Measure (if triggered) would
increase emissions reductions from the Smog Check
program.
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and summarized above, we are
proposing to find that CARB has met the
procedural requirements for adoption
and submission of SIPs and SIP
revisions under CAA sections 110(a)(1),
110(a)(2) and 110(l) and 40 CFR 51.102
with respect to the Smog Check
Contingency Measure SIP.
2. Does the State have adequate legal
authority to implement the measure?
CAA section 110(a)(2)(E)(i) requires
states to provide with their SIPs
necessary assurances that the state or
relevant local or regional agency will
have adequate legal authority to carry
out the SIP (and is not prohibited by any
provision of Federal or state law from
carrying out such SIP).
California H&SC section
44011(a)(4)(B) provides CARB with
adequate legal authority to implement
the Smog Check Contingency Measure.
California H&SC section 44011 requires
all motor vehicles powered by internal
combustion engines that are registered
within an area designated for Smog
Check program coverage to be subject to
biennial emissions inspection
requirements, with certain exceptions.
Under California H&SC section
44011(a)(4)(A), motor vehicles four or
fewer model years old are exempted.
Beginning January 1, 2005, California
H&SC section 44011(a)(4)(B)(i) extends
the exemption to motor vehicles six or
fewer model years old ‘‘unless the state
board finds that providing an exception
for these vehicles will prohibit the state
from meeting the requirements of
Section 176(c) of the federal Clean Air
Act (42 U.S.C. 7401 et seq.) or the state’s
commitments with respect to the state
implementation plan required by the
federal Clean Air Act.’’
Beginning January 1, 2019, California
H&SC section 44011(a)(4)(B)(ii) further
extends the exemption to motor vehicles
eight or fewer model years old, once
again, ‘‘unless the state board finds that
providing an exception for these
vehicles will prohibit the state from
meeting the requirements of Section
176(c) of the federal Clean Air Act (42
U.S.C. 7401 et seq.) or the state’s
commitments with respect to the state
implementation plan required by the
federal Clean Air Act.’’ Instead of the
biennial Smog Check inspection,
registered owners of motor vehicles
seven or eight model years old are
required to pay an annual $25 Smog
Abatement Fee, $21 of which of which
goes to the Air Pollution Control Fund
for use to incentivize the purchase of
cleaner vehicles and equipment through
the Carl Moyer Memorial Air Quality
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Standards Attainment Program (Moyer
Program).17
The Smog Check Contingency
Measure SIP provides the framework for
CARB to make the finding that is the
prerequisite to the narrowing of the
exemption from eight or fewer model
years old to seven or fewer model years
old, and then from seven model years
old to six model years old (if triggered
a second time in a given nonattainment
area) and to set in motion the sequence
of actions necessary to effectuate that
change in the Smog Check program.
Under the terms of the Smog Check
Contingency Measure SIP, CARB’s
finding (and the subsequent narrowing
of the newer model year exemption) is
based on the EPA’s determination that
a given nonattainment area failed to
attain the relevant NAAQS by the
applicable attainment date, meet a
reasonable further progress (RFP)
milestone, meet a quantitative
milestone; or submit a required
quantitative milestone report or
milestone compliance demonstration.
Moreover, CARB’s finding and
subsequent narrowing of the newer
model year exemption will allow the
relevant State agencies to fulfill their
‘‘commitments with respect to the state
implementation plan required by the
federal Clean Air Act.’’ In this instance,
the commitments are the obligations
placed on CARB, BAR and the DMV that
are set forth in the Smog Check
Contingency Measure SIP to effectuate
this change in the Smog Check program
(if triggered) once the Smog Check
Contingency Measure SIP is approved as
part of the California SIP.
In addition, as a recipient of federal
funds, CARB acknowledges that it must
ensure that it complies with Title VI and
the EPA’s Title VI implementation
regulations in its relevant programs and
policies and concludes that, in
developing the Smog Check
Contingency Measure SIP, CARB staff
engaged in a thorough public process to
address the requirements of Title VI and
other relevant laws.18 CARB describes
its process for developing and adopting
the Smog Check Contingency Measure
in Section IV.B (‘‘Title VI and
Environmental Justice’’) of the Smog
Check Contingency Measure SIP. In
addition, the State included a
description of its written Civil Rights
Policy and Discrimination Complaint
process.19
17 Smog
Check Contingency Measure SIP, at page
1.
18 CARB Resolution 23–20, October 26, 2023,
pages 4 and 5. The EPA’s Title VI implementation
regulations are set forth in 40 CFR part 7.
19 Smog Check Contingency Measure SIP, Section
IV.B., pages 20–22.
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In light of the authority vested in
CARB through California H&SC section
44011(a)(4)(B) and CARB’s Title VI
evaluation, the EPA is proposing to find
that CARB has provided adequate
necessary assurances for purposes of
CAA section 110(a)(2)(E)(i) for the Smog
Check Contingency Measure SIP. The
EPA’s proposed SIP approval does not
constitute a formal finding of
compliance with Title VI or 40 CFR part
7.
ddrumheller on DSK120RN23PROD with PROPOSALS1
3. Is the measure enforceable as required
under CAA section 110(a)(2)?
We have evaluated the enforceability
of the Smog Check Contingency
Measure with respect to applicability
and exemptions; standard of conduct
and compliance dates; sunset
provisions; discretionary provisions;
and test methods, recordkeeping and
reporting,20 and are proposing to
conclude for the reasons below that the
regulation is enforceable for the
purposes of CAA section 110(a)(2).
First, with respect to applicability, we
are proposing to find that the Smog
Check Contingency Measure is
sufficiently clear as to which
nonattainment areas are covered by the
measure and how the measure would be
implemented by CARB, BAR and the
DMV. Table 1 of the Smog Check
Contingency Measure SIP lists the
specific ozone and PM2.5 nonattainment
areas covered by the Smog Check
Contingency Measure and the specific
NAAQS that are covered in these areas.
The Smog Check Contingency Measure
would be triggered if the EPA makes one
of the following determinations for an
applicable nonattainment area and
relevant NAAQS (referred to as
‘‘triggering events’’): (1) failure to attain
by the applicable attainment date; (2)
failure to meet a reasonable further
progress (RFP) milestone; (3) failure to
meet a quantitative milestone; or (4)
failure to submit a required quantitative
milestone report or milestone
compliance demonstration.21 Once
triggered, BAR and the DMV will
change the Smog Check program to
remove the exemption for vehicles eight
model years old in the nonattainment
area at issue and to require such
20 These concepts are discussed in detail in an
EPA memorandum from J. Craig Potter, EPA
Assistant Administrator for Air and Radiation, et
al., titled ‘‘Review of State Implementation Plans
and Revisions for Enforceability and Legal
Sufficiency,’’ dated September 23, 1987.
21 Smog Check Contingency Measure SIP, page
15.
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vehicles in the area at issue to be subject
to biennial Smog Check inspections.
This change will be effectuated through
the annual vehicle registration process
that is relied upon to implement the
Smog Check program.
Second, we are proposing to find that
the Smog Check Contingency Measure is
sufficiently specific such that the
applicable State agencies, including
CARB, BAR and the DMV, know what
they must do to implement the measure
and the timeline for taking the necessary
actions. The specific agencies, their
responsibilities, and their respective
timelines for implementation of the
contingency measure are described in
Section 4 of the Smog Check
Contingency Measure SIP. With respect
to compliance dates, we note that CARB
is obligated to initiate the change in the
Smog Check program for vehicles eight
model years old within 30 days of the
effective date of one of the EPA’s
determinations that constitute a
triggering event.
Third, the Smog Check Contingency
Measure does not include sunset
provisions. Fourth, we note that the
Smog Check Contingency Measure does
not contain provisions that allow for
discretion on the part of CARB’s
Executive Officer. Fifth, with respect to
test methods, and recordkeeping and
reporting requirements, we note that the
Smog Check Contingency Measure does
not affect the existing Smog Check
inspection or emissions testing methods
or procedures and that 40 CFR 51.366
requires all states with I/M programs to
submit an annual report to the EPA.
This report includes sufficient test
statistics, by model year, to verify that
the Smog Check Contingency Measure,
if triggered, is being implemented in a
given area.
4. Does the measure meet the
requirements for contingency measures?
Based on our review of the Smog
Check Contingency Measure in light of
the requirements for contingency
measures described in Section I.C of this
document, we are proposing to find that
the Smog Check Contingency Measure
meets the applicable requirements for
such measures under CAA sections
172(c)(9) and 182(c)(9) and 40 CFR
51.1014. First, we note that the Smog
Check Contingency Measure is designed
to be both prospective and conditional.
The narrowing of the exemption for
certain newer vehicles from Smog
Check inspections would take effect in
the future in a given nonattainment area
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only if the EPA makes certain
determinations for that area that
constitute a triggering event for the
purposes of contingency measures.
Second, the Smog Check Contingency
Measure includes an appropriate
triggering mechanism (i.e., EPA’s final
determination of failure to attain the
NAAQS by the applicable attainment
date, to meet an RFP milestone, to meet
a quantitative milestone, or to submit a
required quantitative milestone report
or milestone compliance demonstration)
and addresses all the types of
contingencies listed in CAA sections
172(c)(9) and 182(c)(9) and 40 CFR
51.1014(a).
Third, the narrowing of the exemption
for newer vehicles from Smog Check
inspections is not required for any other
CAA purpose, and the emissions
reductions from the Smog Check
Contingency Measure are not included
in any RFP or attainment demonstration
in any of the applicable nonattainment
areas. We recognize that the existing
exemption under the California Smog
Check program for motor vehicles eight
model years old or less is reflected in
the State’s certification (and
performance standard modeling) of the
existing Smog Check program as
meeting the requirements for I/M
programs under the CAA and the EPA’s
I/M regulations for the 2015 ozone
NAAQS.22 However, narrowing the
exemption under the Smog Check
Contingency Measure would provide
emissions reductions that are surplus to
those that are needed for other CAA
purposes or that are relied upon for RFP
or attainment.
Fourth, the Smog Check Contingency
Measure is structured so as to be
implemented in a timely manner
without significant further action by the
State or EPA. Within 30 days of the
effective date of a triggering event,
CARB has committed to transmit a letter
to BAR and the DMV conveying its
finding under California H&SC section
44011(a)(4)(B)(ii) that providing the
exemption for certain motor vehicles
from Smog Check inspection in specific
nonattainment areas (defined by
specified ZIP Codes) will prohibit the
State from meeting commitments with
22 CARB submitted ‘‘California Smog Check
Performance Standard Modeling and Program
Certification for the 70 Parts Per Billion (ppb) 8Hour Ozone Standard (release date: February 10,
2023)’’ to the EPA as a SIP revision on April 26,
2023.
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respect to the SIP required by the Clean
Air Act.23 CARB indicates that the letter
to BAR and the DMV will explain that
the Smog Check contingency measure is
being triggered to meet contingency
measure requirements under CAA
sections 172(c)(9) or 182(c)(9) thereby
effectuating the change to the Smog
Check exemptions for motor vehicles
from eight or fewer model years old to
seven or fewer model years old
throughout the applicable
nonattainment area (or six or fewer
model years old in cases of the second
trigger).24
Lastly, the Smog Check Contingency
Measure is designed to achieve the
estimated emissions reductions within
roughly a year of the triggering event. In
this case, upon receipt of the CARB
letter and the applicable ZIP Codes,
CARB, BAR and the DMV staff will
initiate the process to narrow the Smog
Check exemption. Under the Smog
Check Contingency Measure, the DMV
will update their Smog Check renewal
programing to require a Smog Check
inspection for the eight model years old
vehicles (or seven model years old
vehicles in the case of a subsequent
second triggering event) in the ZIP
Codes provided by CARB staff, and the
eight to seven model years old (or seven
to six model years old) exemption
change will begin for registrations
expiring beginning January 1st of the
applicable year. The corresponding
emissions reductions would begin to
accrue on a rolling basis in the year
following the triggering event in tandem
with the vehicle registration renewals
that are due with each passing month of
the year.
5. Would the measure interfere with
reasonable further progress (RFP) and
attainment or any other applicable
requirement of the Act?
The Smog Check program continues
to provide emissions reductions in
nonattainment areas in California, and
the emissions reduction benefits are
included in the RFP and attainment
plans developed for these areas. The
current Smog Check program provides
an exemption from biennial Smog
Check inspections for motor vehicles
eight model years or less. The Smog
Check Contingency Measure, if
triggered, would narrow the exemption
to motor vehicles seven model years or
23 Smog
Check Contingency Measure SIP, page
6. Will the State have adequate
personnel and funding for the measure?
CAA section 110(a)(2)(E)(i) requires
states to provide with their SIPs
necessary assurances that the state or
relevant local or regional agency will
have adequate personnel and funding to
carry out the SIP.
The California Smog Check program
is a mature program that has been in
existence for several decades. The
program is decentralized, and, thus,
relies upon a network of licensed
privately-owned Smog Check testing or
repair stations. There are approximately
7,000 such stations throughout the
State.25 The Smog Check Contingency
Measure, if triggered, would result in
less funding for the Air Pollution
Control Fund of the Moyer Program, but
an increase in funding from certification
fees to BAR.26
In addition, the Smog Check
Contingency Measure would require
CARB to coordinate with BAR and the
DMV to update their Smog Check
renewal program to require a Smog
Check inspection for the eight model
year old vehicles (or seven model years
old in the case of a second triggering
event in a given nonattainment area) in
the applicable nonattainment area(s), as
identified by ZIP codes provided by
CARB staff.27 The Smog Check
Contingency Measure SIP does not
explicitly indicate whether any
additional personnel or funding for any
of the relevant State agencies would be
needed to implement the Smog Check
Contingency Measure. However, given
the maturity of the existing Smog Check
program, the limited action required to
implement the contingency measure,
and the slight increase in funding for
BAR (through an increase in number of
vehicles paying certification fees), we
26 Smog
Check Contingency Measure SIP, page
22.
16.
27 Smog
24 Id.
25 BAR,
‘‘California Smog Check Program,’’
brochure, revised January 2019.
VerDate Sep<11>2014
less, or further narrow it to motor
vehicles six model years or less, if
triggered again by a second triggering
event, and would result in additional
emissions reductions beyond those
included in the RFP and attainment
demonstration for the applicable
nonattainment area. Thus, we are
proposing to find that the approval of
the Smog Check Contingency Measure is
consistent with CAA section 110(l) and
would not interfere with RFP,
attainment or any other applicable
requirement of the Act.
17:45 Dec 19, 2023
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Check Contingency Measure SIP, page
16.
28 Our review of CARB’s emissions estimates is
included in a Memorandum to Docket EPA–R09–
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expect that CARB, BAR and the DMV
will be able to implement the Smog
Check Contingency Measure without the
need for additional personnel or
funding. The costs for the additional
Smog Check inspections resulting from
implementation of the Smog Check
Contingency Measure would be borne
by vehicle owners.
7. What emissions reductions would the
contingency measure achieve?
Additionally, we have reviewed
CARB’s estimate of the emissions
reductions that can be expected if the
Smog Check Contingency Measure is
triggered and find the estimates to be
reasonable and adequately
documented.28 CARB provides the
documentation for the area-specific
emissions estimates in Appendix B
(‘‘Smog Check Contingency Measure
Emissions Benefits Methodology’’) and
Appendix C (‘‘Carl Moyer Program
Emission Impacts Analysis
Methodology’’) of the Smog Check
Contingency Measure SIP.
Table 2 presents CARB’s estimated
emissions reductions from the Smog
Check Contingency Measures for each of
the applicable nonattainment areas and
NAAQS, taking into account the
estimated emissions reductions that
would not be achieved by the Moyer
Program (due to decreased funding from
the smog check abatement fee). The
estimates in Table 2 represent the
emissions reductions expected to be
achieved after the first triggering event
(which will narrow the exemption from
eight or fewer model years old to seven
or fewer model years old).29 The EPA
will consider the estimated emissions
reductions associated with the Smog
Check Contingency Measure when
determining whether CARB and the
relevant air district have fully met the
contingency measure requirements
under CAA sections 172(c)(9) and
182(c)(9) and 40 CFR 51.1014 for the
relevant NAAQS and nonattainment
areas. For example, the emission
reductions from the Smog Check
Contingency Measure combined with
the emission reduction from one or
more other contingency measures may
be sufficient in a given nonattainment
area for a given NAAQS. The EPA
expects to make these determinations in
separate rulemakings.
OAR–2023–0524, titled ‘‘Evaluation of CARB’s
Emissions Estimates from the Smog Check
Contingency Measure,’’ dated November 7, 2023.
29 Smog Check Contingency Measure SIP, page
61.
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TABLE 2—ESTIMATED EMISSIONS REDUCTIONS FROM SMOG CHECK CONTINGENCY MEASURE
Nonattainment area
Applicable NAAQS
Analysis year
Emissions reductions
(tons per day) a
NOX
Coachella Valley ........................................
Eastern Kern County .................................
Mariposa County .......................................
Sacramento Metro .....................................
San Diego County .....................................
San Joaquin Valley ...................................
South Coast Air Basin ...............................
Ventura County .........................................
West Mojave Desert ..................................
Western Nevada County ...........................
2008
2015
2008
2015
2015
2008
2015
2008
2015
1997
2008
2015
1997
2006
2012
2008
2015
2012
2015
2008
2015
2015
Ozone NAAQS .................................................
Ozone NAAQS .................................................
Ozone NAAQS .................................................
Ozone NAAQS .................................................
Ozone NAAQS .................................................
Ozone NAAQS .................................................
Ozone NAAQS .................................................
Ozone NAAQS .................................................
Ozone NAAQS .................................................
Ozone NAAQS .................................................
Ozone NAAQS .................................................
Ozone NAAQS .................................................
Annual PM2.5 NAAQS ......................................
24-Hour PM2.5 NAAQS .....................................
Annual PM2.5 NAAQS ......................................
Ozone NAAQS .................................................
Ozone NAAQS .................................................
Annual PM2.5 NAAQS ......................................
Ozone NAAQS .................................................
Ozone NAAQS .................................................
Ozone NAAQS .................................................
Ozone NAAQS .................................................
2031
2037
2026
2032
2026
2024
2032
2026
2032
2023
2031
2037
2023
2024
2030
2029
2035
2030
2026
2026
2032
2026
0.0078
0.0078
0.002997
0.002997
0.0003
0.0761
0.0463
0.064
0.055
0.108
0.076
0.073
0.113
0.116
0.083
0.271
0.230
0.276
0.01292
0.02094
0.01794
0.002
VOC
0.003
0.003
0.001
0.001
0.0001
0.037
0.015
0.027
0.016
0.056
0.025
0.024
0.052
0.052
0.027
0.096
0.077
0.093
0.005
0.009
0.006
0.001
a Emissions estimates shown in this table are summarized from information presented in section 5 of the Smog Check Contingency Measure
SIP. The emissions estimates represent the net change in emissions taking into account the emissions benefit from implementation of the Smog
Check Contingency Measure and the foregone emissions reductions from corresponding reductions in funds paid into the Moyer Program. For
ozone nonattainment areas, the estimates represent summer planning season values. For PM2.5 nonattainment areas, the estimates represent
annual average values.
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C. Did the State consider environmental
justice in developing this measure?
Environmental justice (EJ) is the fair
treatment and meaningful involvement
of all people regardless of race, color,
national origin, or income with respect
to the development, implementation,
and enforcement of environmental laws,
regulations, and policies. As explained
in the EJ Legal Tools to Advance
Environmental Justice 2022
document,30 the CAA provides states
with the discretion to consider
environmental justice in developing
rules and measures related to
nonattainment area SIP requirements,
including contingency measures.
In this instance, CARB exercised this
discretion and evaluated environmental
justice considerations as part of its SIP
submission.31 CARB analyzed whether
there would be disproportionate impact
on disadvantaged communities within
the affected nonattainment areas if the
contingency measure were triggered and
analyzed the impacts of the contingency
measure on vehicle owners in
disadvantaged communities.32 Based on
the results of these analyses, CARB
concluded that the Smog Check
30 EPA, EPA Legal Tools to Advance
Environmental Justice, May 2022.
31 Smog Check Contingency Measure SIP, Section
4.B (‘‘Title VI and Environmental Justice).
32 Id, at pages 18–20.
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Contingency Measure is consistent with
CARB’s environmental justice policies
and would not disproportionately
impact people of any race, culture,
income, or national origin.33
In reviewing CARB’s analysis, the
EPA defers to CARB’s reasonable
exercise of its discretion in considering
EJ in this way. The EPA is taking
proposed action to approve the Smog
Check Contingency Measure SIP
because it meets minimum requirements
pursuant to the CAA and relevant
implementing regulations. The EPA also
finds that consideration of EJ analyses
in this context is reasonable. The EPA
encourages air agencies generally to
evaluate environmental justice
considerations of their actions and
carefully consider impacts to
communities. The EJ analyses submitted
by CARB were considered but were not
the basis for the EPA’s decision to
propose approval of the Smog Check
Contingency Measure SIP as meeting the
minimum applicable requirements.
D. Proposed Action and Public
Comment
Pursuant to section 110(k)(3) of the
Act, and for the reasons given above, the
EPA is proposing to approve the Smog
Check Contingency Measure SIP and a
33 CARB Resolution 23–20, October 26, 2023,
page 5.
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related statutory provision (i.e.,
California H&SC section 44011(a)(4)(A)
and (B), operative October 10, 2017).
Our proposed action is based on our
finding that the Smog Check
Contingency Measure SIP meets the
applicable procedural and substantive
CAA requirements for SIP revisions;
that the Smog Check Contingency
Measure itself meets applicable
requirements for a valid contingency
measure under the CAA and the EPA’s
implementation regulations; and that
the Smog Check Contingency Measure
would achieve additional emissions
reductions of NOX and VOC, if triggered
by certain EPA determinations, in
Coachella Valley, Eastern Kern County,
Mariposa County, Sacramento Metro,
San Diego County, San Joaquin Valley,
South Coast Air Basin, Ventura County,
West Mojave Desert, and Western
Nevada County.
We are not making any determination
presently as to whether this individual
contingency measure is sufficient by
itself for CARB and the relevant air
district to fully comply with the
contingency measure requirements in
any specific nonattainment area or
specific NAAQS under CAA sections
172(c)(9) and 182(c)(9) and 40 CFR
51.1014. We will be acting on the
contingency measure SIP plan elements
in the relevant nonattainment plan SIP
submissions for the respective areas and
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NAAQS in separate rulemakings, and
will consider the emissions reductions
associated with the Smog Check
Contingency Measure at that time. We
will accept comments from the public
on this proposal until January 19, 2024.
If finalized as proposed, this action
would add the Smog Check Contingency
Measure and the related statutory
provision to the federally-enforceable
California SIP.
ddrumheller on DSK120RN23PROD with PROPOSALS1
III. Incorporation by Reference
In this action, 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
California Health & Safety Code section
44011(a)(4)(A) and (B), which
authorizes CARB to narrow the newer
model vehicle Smog Check inspection
exemption. The EPA has made, and will
continue to make, these materials
available through https://
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).
IV. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the relevant
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 CAA.
Accordingly, this proposed action
merely proposes to approve a state
measure 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), 13563 (76 FR 3821,
January 21, 2011) and 14094 (88 FR
21879, April 11, 2023);
• 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
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17:45 Dec 19, 2023
Jkt 262001
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); and
• 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 CAA.
In addition, the SIP is not approved
to apply on any Indian reservation land
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).
Executive Order 12898 (Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations, 59 FR 7629,
Feb. 16, 1994) directs Federal agencies
to identify and address
‘‘disproportionately high and adverse
human health or environmental effects’’
of their actions on minority populations
and low-income populations to the
greatest extent practicable and
permitted by law. The EPA defines
environmental justice (EJ) as ‘‘the fair
treatment and meaningful involvement
of all people regardless of race, color,
national origin, or income with respect
to the development, implementation,
and enforcement of environmental laws,
regulations, and policies.’’ The EPA
further defines the term fair treatment to
mean that ‘‘no group of people should
bear a disproportionate burden of
environmental harms and risks,
including those resulting from the
negative environmental consequences of
industrial, governmental, and
commercial operations or programs and
policies.’’
CARB evaluated environmental
justice considerations as part of its SIP
submission given that the CAA and
applicable implementing regulations
neither prohibit nor require such an
evaluation. The EPA reviewed and
considered the air agency’s evaluation
of environmental justice considerations
of this action, as is described above in
the section titled, ‘‘Environmental
Justice Considerations’’ as part of the
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EPA’s review. Due to the nature of the
action being taken here, this proposed
action is expected to have a neutral to
positive impact on the air quality of the
affected areas. In addition, there is no
information in the record inconsistent
with the stated goal of E.O. 12898 of
achieving environmental justice for
people of color, low-income
populations, and Indigenous peoples.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen oxides, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Volatile organic
compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: December 12, 2023.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2023–27688 Filed 12–19–23; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R09–OAR–2023–0477; FRL–11532–
01–R9]
Clean Air Plans; Contingency
Measures for the Fine Particulate
Matter Standards; San Joaquin Valley,
California
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve
two state implementation plan (SIP)
submissions under the Clean Air Act
(CAA) that address the contingency
measures requirements for the 1997
annual, 2006 24-hour, and 2012 annual
fine particulate matter (PM2.5) national
ambient air quality standards (NAAQS
or ‘‘standards’’) for the San Joaquin
Valley PM2.5 nonattainment area. The
two SIP submissions include the area’s
contingency measure plan element and
two specific contingency measures that
would apply to residential wood
burning heaters and fireplaces and nonagricultural, rural open areas. A third
contingency measure, applicable to
light-duty on-road motor vehicles, is the
subject of a separate action by the EPA,
but the related emissions reductions
from the third measure are accounted
for in this proposed rule. The EPA is
proposing approval of the SIP
submissions because the Agency has
SUMMARY:
E:\FR\FM\20DEP1.SGM
20DEP1
]]>Agencies
[Federal Register Volume 88, Number 243 (Wednesday, December 20, 2023)]
[Proposed Rules]
[Pages 87981-87988]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-27688]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2023-0524; FRL-11525-01-R9]
Air Plan Revisions; California; Vehicle Inspection and
Maintenance Contingency Measure
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: Under the Clean Air Act (CAA or ``Act''), the Environmental
Protection Agency (EPA) is proposing to approve revisions to the
California State Implementation Plan (SIP). These revisions concern an
amendment to the California motor vehicle inspection and maintenance
(I/M) program (also referred to as ``Smog Check'') to include a
contingency measure that, if triggered, would narrow the Smog Check
inspection exemption for newer model year vehicles in certain
California nonattainment areas. The EPA is proposing to approve, as
part of the California SIP, the contingency measure and a related
statutory provision that authorizes the contingency measure because
they meet all the applicable requirements. We are taking comments on
this proposal and plan to follow with a final action.
DATES: Comments must be received on or before January 19, 2024.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2023-0524 at https://www.regulations.gov. For comments submitted at
Regulations.gov, follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
Regulations.gov. The EPA may publish any comment received to its public
docket. Do not submit electronically any information you consider to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Multimedia submissions (audio,
video, etc.) must be accompanied by a written comment. The written
comment is considered the official comment and should include
[[Page 87982]]
discussion of all points you wish to make. The EPA will generally not
consider comments or comment contents located outside of the primary
submission (i.e. on the web, cloud, or other file sharing system). For
additional submission methods, please contact the person identified in
the FOR FURTHER INFORMATION CONTACT section. For the full EPA public
comment policy, information about CBI or multimedia submissions, and
general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets. If you need assistance in a
language other than English or if you are a person with disabilities
who needs a reasonable accommodation at no cost to you, please contact
the person identified in the FOR FURTHER INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT: Jeffrey Buss, EPA Region IX, 75
Hawthorne St., San Francisco, CA 94105. By phone: (415) 947-4152 or by
email at [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and
``our'' refer to the EPA.
Table of Contents
I. The State's Submittal
A. What measure did the State submit?
B. Are there other versions of this measure?
C. What is the purpose of the submitted measure?
II. The EPA's Evaluation and Action
A. How is the EPA evaluating the measure?
B. Does the measure meet the evaluation criteria?
C. Did the State consider environmental justice in developing
this measure?
D. Proposed Action and Public Comments
III. Incorporation by Reference
IV. Statutory and Executive Order Reviews
I. The State's Submittal
A. What measure did the State submit?
Table 1 lists the measure and the related statutory provision
addressed by this proposal with the dates they were adopted and
submitted by the California Air Resources Board (CARB).
Table 1--Submitted Measure and Statutory Provision
----------------------------------------------------------------------------------------------------------------
Measure/statutory
Agency Statute No. provision title Adopted/amended/ revised Submitted
----------------------------------------------------------------------------------------------------------------
CARB......... Not Applicable.... California Smog October 26, 2023............. November 13, 2023.
Check Contingency
Measure State
Implementation
Plan Revision.
CARB......... CA Health & Safety Certificate of Effective on October 10, 2017 November 13, 2023.
Code (H&SC) compliance or
section noncompliance;
44011(a)(4)(A) biennial
and (B). requirement;
exceptions;
inspections;
exemption from
testing for
collector motor
vehicle.
----------------------------------------------------------------------------------------------------------------
CARB's November 13, 2023 SIP submission includes the ``California
Smog Check Contingency Measure State Implementation Plan Revision''
(Released: September 15, 2023) (``Smog Check Contingency Measure
SIP''). The Smog Check Contingency Measure itself is presented in
Section 4 of the Smog Check Contingency Measure SIP. Other sections
address the contingency measure requirements, discuss the opportunities
for CARB to adopt contingency measures, provide the background on the
California Smog Check program, and present the emission reductions
estimates for the ten California nonattainment areas for which the Smog
Check Contingency Measure was developed. The appendices included with
the Smog Check Contingency Measure SIP include an infeasibility
analysis, documentation of emissions estimates, and California H&SC
section 44011(a)(4)(A) and (B), effective October 10, 2017. The SIP
submission also includes the Notice of Public Hearing, dated September
15, 2023, and CARB Resolution 23-20 (October 26, 2023) adopting the
Smog Check Contingency Measure SIP as a revision to the California SIP.
The EPA has reviewed the November 13, 2023 SIP submission of the
Smog Check Contingency Measure SIP and finds it to be administratively
complete for the purposes of CAA section 110(k)(1), effective upon
publication of this proposed rule.\1\
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\1\ EPA Region 9 SIP Completeness Checklist, November 20, 2023.
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B. Are there other versions of this measure?
There is no previously approved version of the submitted
contingency measure. We approved an earlier version of California H&SC
section 44011 in our most recent final action approving the regulatory
and statutory foundation for the California Smog Check program.\2\
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\2\ 75 FR 38023 (July 1, 2010). See 40 CFR
52.220(c)(372)(ii)(A)(3). California H&SC section 44011 is found in
Division 26, Part 5, Chapter 5, Article 2 of the California H&SC.
The existing SIP version of California H&SC section 44011 is the
version that was operative on April 1, 2005.
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C. What is the purpose of the submitted measure?
Emissions of volatile organic compounds (VOCs) and oxides of
nitrogen (NOX) contribute to the production of ground-level
ozone, smog and particulate matter (PM), which harm human health and
the environment. The EPA has established national ambient air quality
standards (NAAQS) to protect public health and welfare for certain
pervasive air pollutants, including ozone and fine PM
(PM2.5). Section 110 of the CAA requires states to adopt and
submit plans (``State Implementation Plans,'' or ``SIPs'') that provide
for implementation, maintenance, and enforcement of the NAAQS within
such state. Section 110(a) of the CAA requires SIPs to include
enforceable emission limitations and other control measures, means or
techniques to meet CAA SIP requirements, such as regulations that
control VOC, NOX, and PM emissions.
Additionally, section 182(b)(4) of the CAA requires states with
ozone nonattainment areas classified under subpart 2 as Moderate to
submit SIP revisions that provide for the implementation of a ``Basic''
vehicle inspection and maintenance (I/M) program in those areas.
Section 182(c)(3) of the CAA requires states with ozone nonattainment
areas classified under subpart 2 as Serious or above to submit SIP
revisions that provide for the implementation of an ``Enhanced'' I/M
program in certain urbanized portions of those areas.\3\
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\3\ The CAA I/M SIP requirements apply to Moderate and above
nonattainment areas for the 2008 and 2015 ozone NAAQS pursuant to 40
CFR 51.1102 (for the 2008 ozone NAAQS) and 40 CFR 51.1302 (for the
2015 ozone NAAQS).
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As a general matter, Basic and Enhanced I/M programs both achieve
their objective by identifying vehicles that have high emissions due to
one or more malfunctions and requiring them to be repaired. An Enhanced
program covers more of the vehicles in operation and has additional
features to better assure that all vehicles are tested properly and
effectively repaired. The EPA has established specific
[[Page 87983]]
requirements for Basic and Enhanced I/M programs in 40 CFR part 51,
subpart S (``The EPA's I/M regulation''). The EPA's I/M regulation
establishes minimum performance standards for Basic and Enhanced I/M
programs as well as requirements for certain elements of the programs,
including, among other elements, test frequency, vehicle coverage, test
procedures and standards, stations and inspectors, and data collection,
analysis, and reporting.\4\
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\4\ 40 CFR part 51, subpart S, sections 350-373.
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The EPA most recently approved California's Smog Check program into
its SIP in 2010, and in that action, the EPA approved the program as
meeting the applicable I/M requirements for the various nonattainment
areas in the State.\5\ The California Bureau of Automotive Repair (BAR)
implements the SIP-approved Smog Check program in California, including
oversight of the automotive repair industry and administration of the
State's vehicle emissions reduction and safety programs. The California
Department of Motor Vehicles (DMV) administers motor vehicle
registration and licensing and supports BAR in administering the Smog
Check program.\6\
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\5\ 75 FR 38023 (July 1, 2010).
\6\ Smog Check Contingency Measure SIP, at page 15.
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Section 172(c)(9) of the CAA requires states with nonattainment
areas to submit SIP revisions that provide for the implementation of
specific measures, referred to as contingency measures, to be
undertaken if the area fails to make reasonable further progress (RFP)
or fails to attain the NAAQS by the applicable attainment date. Section
172(c)(9) of the CAA further specifies that contingency measures must
be structured so as to take effect without further action by the state
or the EPA. For ozone nonattainment areas classified as Serious and
above, CAA section 182(c)(9) requires the SIP to include contingency
measures to be undertaken if the area fails to meet any applicable RFP
milestone. For PM2.5 nonattainment areas, the EPA's
PM2.5 SIP Requirements Rule \7\ requires the SIP to include
contingency measures to be undertaken following a determination by the
EPA that the area has failed: (1) to meet any RFP requirement in an
attainment plan approved in accordance with 40 CFR 51.1012; (2) to meet
any quantitative milestone in an attainment plan approved in accordance
with 40 CFR 51.1013; (3) to submit a quantitative milestone report
required under 40 CFR 51.1013(b); or, (4) to attain the applicable
PM2.5 NAAQS by the applicable attainment date.\8\
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\7\ 81 FR 58010 (August 24, 2016).
\8\ 40 CFR 51.1014(a).
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Contingency measures must be designed so as to be implemented
prospectively and conditionally upon a triggering event; already-
implemented control measures may not serve as contingency measures even
if they provide emissions reductions beyond those needed for any other
CAA purpose.\9\ Contingency measures must also consist of control
measures that are not otherwise included in the control strategy or
that achieve emissions reductions not otherwise relied upon in the
control strategy for the area to meet RFP or to demonstrate attainment;
and must specify the timeframe within which its requirements become
effective following a determination by the EPA that triggers the
contingency measure.\10\ Also, SIPs addressing the contingency measure
requirement must contain a description of the specific trigger
mechanisms for the contingency measure(s) and specify a schedule for
implementation.\11\ Generally, the EPA expects contingency measures to
be implemented within approximately 60 days of a triggering event, and
that the implemented contingency measures achieve the additional
emissions reductions within a year of the triggering event.
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\9\ See Bahr v. EPA, 836 F.3d 1218, at 1235-1237 (9th Cir.
2016).
\10\ 40 CFR 51.1014(b).
\11\ 40 CFR 51.1014(c).
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The purpose of this SIP revision is to include the Smog Check
Contingency Measure into the California SIP to address, in part, the
contingency measure requirements for certain nonattainment areas with
respect to certain ozone and PM2.5 NAAQS.\12\ The applicable
nonattainment areas and NAAQS are Coachella Valley (2008 and 2015 ozone
NAAQS), Eastern Kern County (2008 and 2015 ozone NAAQS), Mariposa
County (2015 ozone NAAQS), Sacramento Metro Area (2008 and 2015 ozone
NAAQS), San Diego County (2008 and 2015 ozone NAAQS), San Joaquin
Valley (1997, 2008, and 2015 ozone NAAQS; 1997 annual, 2006 24-hour,
and 2012 annual PM2.5 NAAQS), South Coast Air Basin (2008
and 2015 ozone NAAQS; 2012 annual PM2.5 NAAQS), Ventura
County (2015 ozone NAAQS), Western Mojave Desert (2008 and 2015 ozone
NAAQS), and Western Nevada County (2015 ozone NAAQS).\13\
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\12\ Smog Check Contingency Measure SIP, pages 11-12: ``The
Measure consists of a triggered contingency measure that, if
triggered, would change the exemptions for motor vehicles in the
California Smog Check Program for the relevant local air district
and applicable standard as specified in Table 1 that, together with
the local air districts' contingency measures, addresses the
contingency measure requirements of the Act.''
\13\ Smog Check Contingency Measure SIP, Table 1, at page 3.
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Under the current California Smog Check program, certain vehicles
are exempt from the biennial inspection requirement, including vehicles
eight or fewer model years old. The Smog Check Contingency Measure, if
triggered, will reduce this exemption \14\ to seven model years in the
nonattainment area at issue upon the first triggering event and to six
model years in the nonattainment area at issue upon a second triggering
event. Reducing the inspection exemption will increase the number of
inspected vehicles and therefore result in additional emission
reductions. CARB is authorized under California H&SC section
44011(a)(4)(B)(ii) to narrow the newer model year vehicle inspection
exemption from eight or fewer model years old, to seven or fewer model
years old, and then to six or less model years old if CARB makes
certain findings.
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\14\ The statutory provision included with the Smog Check
Contingency Measure SIP (California H&SC section 44011(a)(4)(A) and
(B)) refers to the deferral in applicability of the biennial Smog
Check inspection requirement based on the age of the vehicle (in
model years) as an ``exception'' rather than as an ``exemption.''
Our I/M regulations use the term ``exemption'' for such provisions,
and we do so as well in this document.
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Pursuant to the Smog Check Contingency Measure, within 30 days of
the EPA's determination that a nonattainment area covered by the
measure has failed to meet a reasonable further progress (RFP)
milestone, meet an qualitative milestone, submit a required
quantitative milestone report or milestone compliance demonstration, or
attain the relevant NAAQS by the applicable attainment date, CARB will
be obligated to transmit a letter to BAR and the DMV finding that
providing an exemption from Smog Check for certain vehicles in the area
at issue will prohibit the State from meeting the State's commitments
with respect to the SIP required by the CAA, effectuating a reduction
in the Smog Check vehicle inspection exemption to begin with the new
calendar year.\15\
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\15\ Smog Check Contingency Measure SIP, at page 16-17.
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II. The EPA's Evaluation and Action
A. How is the EPA evaluating the measure?
The EPA has evaluated the Smog Check Contingency Measure SIP
against the applicable procedural and substantive requirements of the
CAA for SIPs and SIP revisions and is proposing to conclude that the
Smog Check Contingency Measure SIP meets all of the applicable
requirements. A SIP must
[[Page 87984]]
include enforceable emission limitations and other control measures,
means, or techniques, as well as schedules and timetables for
compliance, as may be necessary to meet the requirements of the Act
(see CAA section 110(a)(2)(A)); provide necessary assurances that the
state will have adequate personnel, funding, and authority under state
law to carry out such SIP (and is not prohibited by any provision of
federal or state law from carrying out such SIP) (see CAA section
110(a)(2)(E)); be adopted by a state after reasonable notice and public
hearing (see CAA section 110(l)); and not interfere with any applicable
requirement concerning attainment and reasonable further progress, or
any other applicable requirement of the Act (see CAA section
110(l)).\16\ We are also evaluating whether the measure meets the
requirements for contingency measures for ozone and PM2.5
nonattainment areas as specified in CAA sections 172(c)(9) and
182(c)(9) and 40 CFR 51.1014.
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\16\ The Smog Check Contingency Measure SIP is also not
prohibited under CAA section 193, which prohibits any pre-1990 SIP
control requirement relating to nonattainment pollutants in
nonattainment areas from being modified unless the SIP is revised to
insure equivalent or greater emission reductions of such air
pollutants, because, by narrowing an exemption to testing, the Smog
Check Contingency Measure (if triggered) would increase emissions
reductions from the Smog Check program.
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B. Does the measure meet the evaluation criteria?
1. Did the State provide for reasonable public notice and hearing prior
to adoption?
Under CAA sections 110(a)(1), 110(a)(2), and 110(l), states must
adopt and submit SIP revisions after reasonable notice and public
hearing. In 40 CFR 51.102(d), the EPA specifies that reasonable public
notice in this context is at least 30 days.
CARB adopted the Smog Check Contingency Measure SIP on October 26,
2023, through Resolution 23-20 following a public hearing held on that
same day. Prior to adoption, CARB published notice on September 15,
2023 of an October 26, 2023, public hearing, and provided a 30-day
written comment period. CARB submitted the Smog Check Contingency
Measure SIP to the EPA on November 13, 2023, along with various other
materials comprising the SIP submission package, including copies of
public comments received during the comment period and CARB's responses
to the comments.
Based on the materials provided in the November 13, 2023 SIP
submission and summarized above, we are proposing to find that CARB has
met the procedural requirements for adoption and submission of SIPs and
SIP revisions under CAA sections 110(a)(1), 110(a)(2) and 110(l) and 40
CFR 51.102 with respect to the Smog Check Contingency Measure SIP.
2. Does the State have adequate legal authority to implement the
measure?
CAA section 110(a)(2)(E)(i) requires states to provide with their
SIPs necessary assurances that the state or relevant local or regional
agency will have adequate legal authority to carry out the SIP (and is
not prohibited by any provision of Federal or state law from carrying
out such SIP).
California H&SC section 44011(a)(4)(B) provides CARB with adequate
legal authority to implement the Smog Check Contingency Measure.
California H&SC section 44011 requires all motor vehicles powered by
internal combustion engines that are registered within an area
designated for Smog Check program coverage to be subject to biennial
emissions inspection requirements, with certain exceptions. Under
California H&SC section 44011(a)(4)(A), motor vehicles four or fewer
model years old are exempted. Beginning January 1, 2005, California
H&SC section 44011(a)(4)(B)(i) extends the exemption to motor vehicles
six or fewer model years old ``unless the state board finds that
providing an exception for these vehicles will prohibit the state from
meeting the requirements of Section 176(c) of the federal Clean Air Act
(42 U.S.C. 7401 et seq.) or the state's commitments with respect to the
state implementation plan required by the federal Clean Air Act.''
Beginning January 1, 2019, California H&SC section
44011(a)(4)(B)(ii) further extends the exemption to motor vehicles
eight or fewer model years old, once again, ``unless the state board
finds that providing an exception for these vehicles will prohibit the
state from meeting the requirements of Section 176(c) of the federal
Clean Air Act (42 U.S.C. 7401 et seq.) or the state's commitments with
respect to the state implementation plan required by the federal Clean
Air Act.'' Instead of the biennial Smog Check inspection, registered
owners of motor vehicles seven or eight model years old are required to
pay an annual $25 Smog Abatement Fee, $21 of which of which goes to the
Air Pollution Control Fund for use to incentivize the purchase of
cleaner vehicles and equipment through the Carl Moyer Memorial Air
Quality Standards Attainment Program (Moyer Program).\17\
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\17\ Smog Check Contingency Measure SIP, at page 1.
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The Smog Check Contingency Measure SIP provides the framework for
CARB to make the finding that is the prerequisite to the narrowing of
the exemption from eight or fewer model years old to seven or fewer
model years old, and then from seven model years old to six model years
old (if triggered a second time in a given nonattainment area) and to
set in motion the sequence of actions necessary to effectuate that
change in the Smog Check program. Under the terms of the Smog Check
Contingency Measure SIP, CARB's finding (and the subsequent narrowing
of the newer model year exemption) is based on the EPA's determination
that a given nonattainment area failed to attain the relevant NAAQS by
the applicable attainment date, meet a reasonable further progress
(RFP) milestone, meet a quantitative milestone; or submit a required
quantitative milestone report or milestone compliance demonstration.
Moreover, CARB's finding and subsequent narrowing of the newer model
year exemption will allow the relevant State agencies to fulfill their
``commitments with respect to the state implementation plan required by
the federal Clean Air Act.'' In this instance, the commitments are the
obligations placed on CARB, BAR and the DMV that are set forth in the
Smog Check Contingency Measure SIP to effectuate this change in the
Smog Check program (if triggered) once the Smog Check Contingency
Measure SIP is approved as part of the California SIP.
In addition, as a recipient of federal funds, CARB acknowledges
that it must ensure that it complies with Title VI and the EPA's Title
VI implementation regulations in its relevant programs and policies and
concludes that, in developing the Smog Check Contingency Measure SIP,
CARB staff engaged in a thorough public process to address the
requirements of Title VI and other relevant laws.\18\ CARB describes
its process for developing and adopting the Smog Check Contingency
Measure in Section IV.B (``Title VI and Environmental Justice'') of the
Smog Check Contingency Measure SIP. In addition, the State included a
description of its written Civil Rights Policy and Discrimination
Complaint process.\19\
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\18\ CARB Resolution 23-20, October 26, 2023, pages 4 and 5. The
EPA's Title VI implementation regulations are set forth in 40 CFR
part 7.
\19\ Smog Check Contingency Measure SIP, Section IV.B., pages
20-22.
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[[Page 87985]]
In light of the authority vested in CARB through California H&SC
section 44011(a)(4)(B) and CARB's Title VI evaluation, the EPA is
proposing to find that CARB has provided adequate necessary assurances
for purposes of CAA section 110(a)(2)(E)(i) for the Smog Check
Contingency Measure SIP. The EPA's proposed SIP approval does not
constitute a formal finding of compliance with Title VI or 40 CFR part
7.
3. Is the measure enforceable as required under CAA section 110(a)(2)?
We have evaluated the enforceability of the Smog Check Contingency
Measure with respect to applicability and exemptions; standard of
conduct and compliance dates; sunset provisions; discretionary
provisions; and test methods, recordkeeping and reporting,\20\ and are
proposing to conclude for the reasons below that the regulation is
enforceable for the purposes of CAA section 110(a)(2).
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\20\ These concepts are discussed in detail in an EPA memorandum
from J. Craig Potter, EPA Assistant Administrator for Air and
Radiation, et al., titled ``Review of State Implementation Plans and
Revisions for Enforceability and Legal Sufficiency,'' dated
September 23, 1987.
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First, with respect to applicability, we are proposing to find that
the Smog Check Contingency Measure is sufficiently clear as to which
nonattainment areas are covered by the measure and how the measure
would be implemented by CARB, BAR and the DMV. Table 1 of the Smog
Check Contingency Measure SIP lists the specific ozone and
PM2.5 nonattainment areas covered by the Smog Check
Contingency Measure and the specific NAAQS that are covered in these
areas. The Smog Check Contingency Measure would be triggered if the EPA
makes one of the following determinations for an applicable
nonattainment area and relevant NAAQS (referred to as ``triggering
events''): (1) failure to attain by the applicable attainment date; (2)
failure to meet a reasonable further progress (RFP) milestone; (3)
failure to meet a quantitative milestone; or (4) failure to submit a
required quantitative milestone report or milestone compliance
demonstration.\21\ Once triggered, BAR and the DMV will change the Smog
Check program to remove the exemption for vehicles eight model years
old in the nonattainment area at issue and to require such vehicles in
the area at issue to be subject to biennial Smog Check inspections.
This change will be effectuated through the annual vehicle registration
process that is relied upon to implement the Smog Check program.
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\21\ Smog Check Contingency Measure SIP, page 15.
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Second, we are proposing to find that the Smog Check Contingency
Measure is sufficiently specific such that the applicable State
agencies, including CARB, BAR and the DMV, know what they must do to
implement the measure and the timeline for taking the necessary
actions. The specific agencies, their responsibilities, and their
respective timelines for implementation of the contingency measure are
described in Section 4 of the Smog Check Contingency Measure SIP. With
respect to compliance dates, we note that CARB is obligated to initiate
the change in the Smog Check program for vehicles eight model years old
within 30 days of the effective date of one of the EPA's determinations
that constitute a triggering event.
Third, the Smog Check Contingency Measure does not include sunset
provisions. Fourth, we note that the Smog Check Contingency Measure
does not contain provisions that allow for discretion on the part of
CARB's Executive Officer. Fifth, with respect to test methods, and
recordkeeping and reporting requirements, we note that the Smog Check
Contingency Measure does not affect the existing Smog Check inspection
or emissions testing methods or procedures and that 40 CFR 51.366
requires all states with I/M programs to submit an annual report to the
EPA. This report includes sufficient test statistics, by model year, to
verify that the Smog Check Contingency Measure, if triggered, is being
implemented in a given area.
4. Does the measure meet the requirements for contingency measures?
Based on our review of the Smog Check Contingency Measure in light
of the requirements for contingency measures described in Section I.C
of this document, we are proposing to find that the Smog Check
Contingency Measure meets the applicable requirements for such measures
under CAA sections 172(c)(9) and 182(c)(9) and 40 CFR 51.1014. First,
we note that the Smog Check Contingency Measure is designed to be both
prospective and conditional. The narrowing of the exemption for certain
newer vehicles from Smog Check inspections would take effect in the
future in a given nonattainment area only if the EPA makes certain
determinations for that area that constitute a triggering event for the
purposes of contingency measures.
Second, the Smog Check Contingency Measure includes an appropriate
triggering mechanism (i.e., EPA's final determination of failure to
attain the NAAQS by the applicable attainment date, to meet an RFP
milestone, to meet a quantitative milestone, or to submit a required
quantitative milestone report or milestone compliance demonstration)
and addresses all the types of contingencies listed in CAA sections
172(c)(9) and 182(c)(9) and 40 CFR 51.1014(a).
Third, the narrowing of the exemption for newer vehicles from Smog
Check inspections is not required for any other CAA purpose, and the
emissions reductions from the Smog Check Contingency Measure are not
included in any RFP or attainment demonstration in any of the
applicable nonattainment areas. We recognize that the existing
exemption under the California Smog Check program for motor vehicles
eight model years old or less is reflected in the State's certification
(and performance standard modeling) of the existing Smog Check program
as meeting the requirements for I/M programs under the CAA and the
EPA's I/M regulations for the 2015 ozone NAAQS.\22\ However, narrowing
the exemption under the Smog Check Contingency Measure would provide
emissions reductions that are surplus to those that are needed for
other CAA purposes or that are relied upon for RFP or attainment.
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\22\ CARB submitted ``California Smog Check Performance Standard
Modeling and Program Certification for the 70 Parts Per Billion
(ppb) 8-Hour Ozone Standard (release date: February 10, 2023)'' to
the EPA as a SIP revision on April 26, 2023.
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Fourth, the Smog Check Contingency Measure is structured so as to
be implemented in a timely manner without significant further action by
the State or EPA. Within 30 days of the effective date of a triggering
event, CARB has committed to transmit a letter to BAR and the DMV
conveying its finding under California H&SC section 44011(a)(4)(B)(ii)
that providing the exemption for certain motor vehicles from Smog Check
inspection in specific nonattainment areas (defined by specified ZIP
Codes) will prohibit the State from meeting commitments with
[[Page 87986]]
respect to the SIP required by the Clean Air Act.\23\ CARB indicates
that the letter to BAR and the DMV will explain that the Smog Check
contingency measure is being triggered to meet contingency measure
requirements under CAA sections 172(c)(9) or 182(c)(9) thereby
effectuating the change to the Smog Check exemptions for motor vehicles
from eight or fewer model years old to seven or fewer model years old
throughout the applicable nonattainment area (or six or fewer model
years old in cases of the second trigger).\24\
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\23\ Smog Check Contingency Measure SIP, page 16.
\24\ Id.
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Lastly, the Smog Check Contingency Measure is designed to achieve
the estimated emissions reductions within roughly a year of the
triggering event. In this case, upon receipt of the CARB letter and the
applicable ZIP Codes, CARB, BAR and the DMV staff will initiate the
process to narrow the Smog Check exemption. Under the Smog Check
Contingency Measure, the DMV will update their Smog Check renewal
programing to require a Smog Check inspection for the eight model years
old vehicles (or seven model years old vehicles in the case of a
subsequent second triggering event) in the ZIP Codes provided by CARB
staff, and the eight to seven model years old (or seven to six model
years old) exemption change will begin for registrations expiring
beginning January 1st of the applicable year. The corresponding
emissions reductions would begin to accrue on a rolling basis in the
year following the triggering event in tandem with the vehicle
registration renewals that are due with each passing month of the year.
5. Would the measure interfere with reasonable further progress (RFP)
and attainment or any other applicable requirement of the Act?
The Smog Check program continues to provide emissions reductions in
nonattainment areas in California, and the emissions reduction benefits
are included in the RFP and attainment plans developed for these areas.
The current Smog Check program provides an exemption from biennial Smog
Check inspections for motor vehicles eight model years or less. The
Smog Check Contingency Measure, if triggered, would narrow the
exemption to motor vehicles seven model years or less, or further
narrow it to motor vehicles six model years or less, if triggered again
by a second triggering event, and would result in additional emissions
reductions beyond those included in the RFP and attainment
demonstration for the applicable nonattainment area. Thus, we are
proposing to find that the approval of the Smog Check Contingency
Measure is consistent with CAA section 110(l) and would not interfere
with RFP, attainment or any other applicable requirement of the Act.
6. Will the State have adequate personnel and funding for the measure?
CAA section 110(a)(2)(E)(i) requires states to provide with their
SIPs necessary assurances that the state or relevant local or regional
agency will have adequate personnel and funding to carry out the SIP.
The California Smog Check program is a mature program that has been
in existence for several decades. The program is decentralized, and,
thus, relies upon a network of licensed privately-owned Smog Check
testing or repair stations. There are approximately 7,000 such stations
throughout the State.\25\ The Smog Check Contingency Measure, if
triggered, would result in less funding for the Air Pollution Control
Fund of the Moyer Program, but an increase in funding from
certification fees to BAR.\26\
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\25\ BAR, ``California Smog Check Program,'' brochure, revised
January 2019.
\26\ Smog Check Contingency Measure SIP, page 22.
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In addition, the Smog Check Contingency Measure would require CARB
to coordinate with BAR and the DMV to update their Smog Check renewal
program to require a Smog Check inspection for the eight model year old
vehicles (or seven model years old in the case of a second triggering
event in a given nonattainment area) in the applicable nonattainment
area(s), as identified by ZIP codes provided by CARB staff.\27\ The
Smog Check Contingency Measure SIP does not explicitly indicate whether
any additional personnel or funding for any of the relevant State
agencies would be needed to implement the Smog Check Contingency
Measure. However, given the maturity of the existing Smog Check
program, the limited action required to implement the contingency
measure, and the slight increase in funding for BAR (through an
increase in number of vehicles paying certification fees), we expect
that CARB, BAR and the DMV will be able to implement the Smog Check
Contingency Measure without the need for additional personnel or
funding. The costs for the additional Smog Check inspections resulting
from implementation of the Smog Check Contingency Measure would be
borne by vehicle owners.
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\27\ Smog Check Contingency Measure SIP, page 16.
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7. What emissions reductions would the contingency measure achieve?
Additionally, we have reviewed CARB's estimate of the emissions
reductions that can be expected if the Smog Check Contingency Measure
is triggered and find the estimates to be reasonable and adequately
documented.\28\ CARB provides the documentation for the area-specific
emissions estimates in Appendix B (``Smog Check Contingency Measure
Emissions Benefits Methodology'') and Appendix C (``Carl Moyer Program
Emission Impacts Analysis Methodology'') of the Smog Check Contingency
Measure SIP.
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\28\ Our review of CARB's emissions estimates is included in a
Memorandum to Docket EPA-R09-OAR-2023-0524, titled ``Evaluation of
CARB's Emissions Estimates from the Smog Check Contingency
Measure,'' dated November 7, 2023.
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Table 2 presents CARB's estimated emissions reductions from the
Smog Check Contingency Measures for each of the applicable
nonattainment areas and NAAQS, taking into account the estimated
emissions reductions that would not be achieved by the Moyer Program
(due to decreased funding from the smog check abatement fee). The
estimates in Table 2 represent the emissions reductions expected to be
achieved after the first triggering event (which will narrow the
exemption from eight or fewer model years old to seven or fewer model
years old).\29\ The EPA will consider the estimated emissions
reductions associated with the Smog Check Contingency Measure when
determining whether CARB and the relevant air district have fully met
the contingency measure requirements under CAA sections 172(c)(9) and
182(c)(9) and 40 CFR 51.1014 for the relevant NAAQS and nonattainment
areas. For example, the emission reductions from the Smog Check
Contingency Measure combined with the emission reduction from one or
more other contingency measures may be sufficient in a given
nonattainment area for a given NAAQS. The EPA expects to make these
determinations in separate rulemakings.
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\29\ Smog Check Contingency Measure SIP, page 61.
[[Page 87987]]
Table 2--Estimated Emissions Reductions From Smog Check Contingency Measure
----------------------------------------------------------------------------------------------------------------
Emissions reductions
(tons per day) \a\
Nonattainment area Applicable NAAQS Analysis year -------------------------
NOX VOC
----------------------------------------------------------------------------------------------------------------
Coachella Valley........................ 2008 Ozone NAAQS........... 2031 0.0078 0.003
2015 Ozone NAAQS........... 2037 0.0078 0.003
Eastern Kern County..................... 2008 Ozone NAAQS........... 2026 0.002997 0.001
2015 Ozone NAAQS........... 2032 0.002997 0.001
Mariposa County......................... 2015 Ozone NAAQS........... 2026 0.0003 0.0001
Sacramento Metro........................ 2008 Ozone NAAQS........... 2024 0.0761 0.037
2015 Ozone NAAQS........... 2032 0.0463 0.015
San Diego County........................ 2008 Ozone NAAQS........... 2026 0.064 0.027
2015 Ozone NAAQS........... 2032 0.055 0.016
San Joaquin Valley...................... 1997 Ozone NAAQS........... 2023 0.108 0.056
2008 Ozone NAAQS........... 2031 0.076 0.025
2015 Ozone NAAQS........... 2037 0.073 0.024
1997 Annual PM2.5 NAAQS.... 2023 0.113 0.052
2006 24-Hour PM2.5 NAAQS... 2024 0.116 0.052
2012 Annual PM2.5 NAAQS.... 2030 0.083 0.027
South Coast Air Basin................... 2008 Ozone NAAQS........... 2029 0.271 0.096
2015 Ozone NAAQS........... 2035 0.230 0.077
2012 Annual PM2.5 NAAQS.... 2030 0.276 0.093
Ventura County.......................... 2015 Ozone NAAQS........... 2026 0.01292 0.005
West Mojave Desert...................... 2008 Ozone NAAQS........... 2026 0.02094 0.009
2015 Ozone NAAQS........... 2032 0.01794 0.006
Western Nevada County................... 2015 Ozone NAAQS........... 2026 0.002 0.001
----------------------------------------------------------------------------------------------------------------
\a\ Emissions estimates shown in this table are summarized from information presented in section 5 of the Smog
Check Contingency Measure SIP. The emissions estimates represent the net change in emissions taking into
account the emissions benefit from implementation of the Smog Check Contingency Measure and the foregone
emissions reductions from corresponding reductions in funds paid into the Moyer Program. For ozone
nonattainment areas, the estimates represent summer planning season values. For PM2.5 nonattainment areas, the
estimates represent annual average values.
C. Did the State consider environmental justice in developing this
measure?
Environmental justice (EJ) is the fair treatment and meaningful
involvement of all people regardless of race, color, national origin,
or income with respect to the development, implementation, and
enforcement of environmental laws, regulations, and policies. As
explained in the EJ Legal Tools to Advance Environmental Justice 2022
document,\30\ the CAA provides states with the discretion to consider
environmental justice in developing rules and measures related to
nonattainment area SIP requirements, including contingency measures.
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\30\ EPA, EPA Legal Tools to Advance Environmental Justice, May
2022.
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In this instance, CARB exercised this discretion and evaluated
environmental justice considerations as part of its SIP submission.\31\
CARB analyzed whether there would be disproportionate impact on
disadvantaged communities within the affected nonattainment areas if
the contingency measure were triggered and analyzed the impacts of the
contingency measure on vehicle owners in disadvantaged communities.\32\
Based on the results of these analyses, CARB concluded that the Smog
Check Contingency Measure is consistent with CARB's environmental
justice policies and would not disproportionately impact people of any
race, culture, income, or national origin.\33\
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\31\ Smog Check Contingency Measure SIP, Section 4.B (``Title VI
and Environmental Justice).
\32\ Id, at pages 18-20.
\33\ CARB Resolution 23-20, October 26, 2023, page 5.
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In reviewing CARB's analysis, the EPA defers to CARB's reasonable
exercise of its discretion in considering EJ in this way. The EPA is
taking proposed action to approve the Smog Check Contingency Measure
SIP because it meets minimum requirements pursuant to the CAA and
relevant implementing regulations. The EPA also finds that
consideration of EJ analyses in this context is reasonable. The EPA
encourages air agencies generally to evaluate environmental justice
considerations of their actions and carefully consider impacts to
communities. The EJ analyses submitted by CARB were considered but were
not the basis for the EPA's decision to propose approval of the Smog
Check Contingency Measure SIP as meeting the minimum applicable
requirements.
D. Proposed Action and Public Comment
Pursuant to section 110(k)(3) of the Act, and for the reasons given
above, the EPA is proposing to approve the Smog Check Contingency
Measure SIP and a related statutory provision (i.e., California H&SC
section 44011(a)(4)(A) and (B), operative October 10, 2017). Our
proposed action is based on our finding that the Smog Check Contingency
Measure SIP meets the applicable procedural and substantive CAA
requirements for SIP revisions; that the Smog Check Contingency Measure
itself meets applicable requirements for a valid contingency measure
under the CAA and the EPA's implementation regulations; and that the
Smog Check Contingency Measure would achieve additional emissions
reductions of NOX and VOC, if triggered by certain EPA
determinations, in Coachella Valley, Eastern Kern County, Mariposa
County, Sacramento Metro, San Diego County, San Joaquin Valley, South
Coast Air Basin, Ventura County, West Mojave Desert, and Western Nevada
County.
We are not making any determination presently as to whether this
individual contingency measure is sufficient by itself for CARB and the
relevant air district to fully comply with the contingency measure
requirements in any specific nonattainment area or specific NAAQS under
CAA sections 172(c)(9) and 182(c)(9) and 40 CFR 51.1014. We will be
acting on the contingency measure SIP plan elements in the relevant
nonattainment plan SIP submissions for the respective areas and
[[Page 87988]]
NAAQS in separate rulemakings, and will consider the emissions
reductions associated with the Smog Check Contingency Measure at that
time. We will accept comments from the public on this proposal until
January 19, 2024.
If finalized as proposed, this action would add the Smog Check
Contingency Measure and the related statutory provision to the
federally-enforceable California SIP.
III. Incorporation by Reference
In this action, 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 California Health & Safety Code section 44011(a)(4)(A) and
(B), which authorizes CARB to narrow the newer model vehicle Smog Check
inspection exemption. The EPA has made, and will continue to make,
these materials available through https://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).
IV. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the relevant 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 CAA. Accordingly,
this proposed action merely proposes to approve a state measure 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), 13563 (76 FR 3821, January 21,
2011) and 14094 (88 FR 21879, April 11, 2023);
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); and
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 CAA.
In addition, the SIP is not approved to apply on any Indian
reservation land 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).
Executive Order 12898 (Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR 7629,
Feb. 16, 1994) directs Federal agencies to identify and address
``disproportionately high and adverse human health or environmental
effects'' of their actions on minority populations and low-income
populations to the greatest extent practicable and permitted by law.
The EPA defines environmental justice (EJ) as ``the fair treatment and
meaningful involvement of all people regardless of race, color,
national origin, or income with respect to the development,
implementation, and enforcement of environmental laws, regulations, and
policies.'' The EPA further defines the term fair treatment to mean
that ``no group of people should bear a disproportionate burden of
environmental harms and risks, including those resulting from the
negative environmental consequences of industrial, governmental, and
commercial operations or programs and policies.''
CARB evaluated environmental justice considerations as part of its
SIP submission given that the CAA and applicable implementing
regulations neither prohibit nor require such an evaluation. The EPA
reviewed and considered the air agency's evaluation of environmental
justice considerations of this action, as is described above in the
section titled, ``Environmental Justice Considerations'' as part of the
EPA's review. Due to the nature of the action being taken here, this
proposed action is expected to have a neutral to positive impact on the
air quality of the affected areas. In addition, there is no information
in the record inconsistent with the stated goal of E.O. 12898 of
achieving environmental justice for people of color, low-income
populations, and Indigenous peoples.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen oxides, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Volatile
organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: December 12, 2023.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2023-27688 Filed 12-19-23; 8:45 am]
BILLING CODE 6560-50-P
