[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
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                                    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.
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    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\
---------------------------------------------------------------------------

    \25\ BAR, ``California Smog Check Program,'' brochure, revised 
January 2019.
    \26\ Smog Check Contingency Measure SIP, page 22.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \27\ Smog Check Contingency Measure SIP, page 16.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    \30\ EPA, EPA Legal Tools to Advance Environmental Justice, May 
2022.
---------------------------------------------------------------------------

    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