Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Proposed Rules 87981 

85 2 U.S.C. 1501 et seq. (1995). 

86 58 FR 58093 (Oct. 28, 1993). 

87The 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. 

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 

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. 

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 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

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 


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1EPA 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. 

3The 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). 

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). 

TABLE 1—SUBMITTED MEASURE AND STATUTORY PROVISION

Agency Statute No. Measure/statutory provision title Adopted/amended/ 

revised Submitted 

CARB .... Not Applicable ...................................................... California Smog Check Contingency Measure 

State Implementation Plan Revision.

October 26, 2023 ........... November 13, 2023. 

CARB .... CA Health & Safety Code (H&SC) section 

44011(a)(4)(A) and (B).

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 

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, 

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 


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4 40 CFR part 51, subpart S, sections 350–373. 

5 75 FR 38023 (July 1, 2010). 

6Smog Check Contingency Measure SIP, at page 

15. 

7 81 FR 58010 (August 24, 2016). 

8 40 CFR 51.1014(a). 

9See 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). 

12Smog 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.’’ 

13Smog Check Contingency Measure SIP, Table 1, 

at page 3. 14The 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. 

15Smog Check Contingency Measure SIP, at page 

16–17. 

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 

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 

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 


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16The 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. 

17Smog Check Contingency Measure SIP, at page 

1. 

18CARB 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. 

19Smog Check Contingency Measure SIP, Section 

IV.B., pages 20–22. 

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? 

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

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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20These 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. 

21Smog Check Contingency Measure SIP, page 

15. 

22CARB 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. 

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). 

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. 

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. 

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 


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23Smog Check Contingency Measure SIP, page 

16. 

24 Id. 

25BAR, ‘‘California Smog Check Program,’’ 

brochure, revised January 2019. 

26Smog Check Contingency Measure SIP, page 

22. 

27Smog Check Contingency Measure SIP, page 

16. 

28Our 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. 

29Smog Check Contingency Measure SIP, page 

61. 

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 

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

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. 

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. 


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30EPA, EPA Legal Tools to Advance 

Environmental Justice, May 2022. 

31Smog Check Contingency Measure SIP, Section 

4.B (‘‘Title VI and Environmental Justice). 

32 Id, at pages 18–20. 

33CARB Resolution 23–20, October 26, 2023, 

page 5. 

TABLE 2—ESTIMATED EMISSIONS REDUCTIONS FROM SMOG CHECK CONTINGENCY MEASURE

Nonattainment area Applicable NAAQS Analysis year 

Emissions reductions 

(tons per day) a

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 

aEmissions 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. 

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

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 


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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. 

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 

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 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: 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 


ddrumheller on DSK120RN23PROD with PROPOSALS1