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Federal Register / Vol. 86, No. 184 / Monday, September 27, 2021 / Rules and Regulations For the enhanced I/M element, the proposed rule notes that an enhanced I/
M program is currently implemented in a portion of the West Mojave Desert.24
As summarized above, the proposed rule identifies this program as a required element for the area under CAA section 182c3. On review, however, we have confirmed that the West Mojave Desert does not meet the population threshold in CAA section 182c3,25 and therefore is not subject to the enhanced I/M requirement for the 2008 ozone NAAQS. The State of California has elected to implement an enhanced I/M vehicle program in portions of the West Mojave Desert as part of the ozone control strategy for the area. We most recently approved Californias I/M program in 2010.26
In light of the Bahr decision, the MDAQMD 27 and CARB 28 committed to supplement the contingency measure element through submission, as a SIP
revision within one year of our final conditional approval action, of a board resolution further detailing the circumstances, timing, and procedures for implementing I/M in the portion of the West Mojave Desert not subject to enhanced I/M,29 if an RFP milestone is not met or if the area fails to attain the 2008 ozone NAAQS by the applicable attainment date.30 The EPA proposed to conditionally approve the contingency measure element as meeting the requirements of CAA sections 172c9
and 182c9. Please see our proposed rule for more information concerning the background for this action and for a more detailed discussion of the rationale for approval or conditional approval of the above-listed elements of CARBs submittals.
24 Id.

at 24827.
CFR 51.350a2 requiring enhanced I/M in any 1990 Census-defined urbanized area within an ozone nonattainment area classified as Serious or above with a 1980 Census-defined urbanized area with a population of 200,000 or more.
26 75 FR 38023 July 1, 2010. See also related notice of proposed rulemaking at 74 FR 41818
August 19, 2009.
27 Letter dated March 29, 2021, from Brad Poiriez, Executive Officer, MDAQMD, to Richard Corey, CARB Executive Officer.
28 Letter dated April 9, 2021, from Michael Benjamin, Chief, Air Quality Planning and Science Division, CARB, to Deborah Jordan, Acting Regional Administrator, EPA Region IX. CARBs letter also forwarded the MDAQMDs commitment letter to the EPA.
29 As described in the proposed rule, enhanced I/
M is implemented in the West Mojave Desert in all of the area under the jurisdiction of the AVAQMD
and in a portion of the area under the jurisdiction of the MDAQMD.
30 86 FR 24809, 2482324825.

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II. Public Comments and EPA
Responses The public comment period on the proposed rule opened on May 10, 2021, the date of its publication in the Federal Register, and closed on June 9, 2021.
During this period, the EPA received two comment letters, one submitted by an individual and one submitted by the Colorado River Indian Tribes CRIT or Tribes. We address the comments in the following paragraphs of this final rule.
Comment 1: CRIT objected to language in the proposal stating that 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, and that the proposed action therefore does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law in these areas. CRIT argued that this analysis takes an overly narrow view of tribal interests, noting that the Tribes ancestral homelands extend far beyond the boundaries of the Tribes reservation, and that these areas have substantial cultural, spiritual, and religious significance for the Tribes. For this reason, CRIT stated, they have an interest in ensuring that air quality impacts in the West Mojave Desert are adequately considered and mitigated, even where they lack jurisdiction. CRIT
observed that the EPA has a responsibility to consult on a government-to-government basis with federally recognized tribal governments when EPA actions and decisions may affect tribal interests, based on Executive Order 13175 and the EPA
Region IX draft tribal consultation guidelines,31 and stated that this responsibility is not limited to actions on lands where tribes have jurisdiction.32 CRIT requested a 15-day extension to review the proposal and provide comments, because they were not provided notice of the proposal and were not aware of any formal consultation occuring between the EPA
and tribes located within the West Mojave Desert.
Response to Comment 1: As indicated in the EPA Region IX tribal consultation document cited by the commenter, for proposed Planning Office actions on SIP submittals that do 31 EPA Region IX, EPA Tribal Consultation Best Practices for Air and Radiation Division Regulatory Actions Draft, September 2020 Draft Consultation Best Practices.
32 CRIT also cites California state authorities governing state tribal consultation procedures and indicates that it sent its comments to CARB.

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not affect the designation or classification of a nonattainment area e.g., attainment plans, our general practice is to provide notification to tribes located within the applicable nonattainment area, and to consult with tribes if requested.33 We recognize that EPA actions may also be of interest to tribes with jurisdictional lands located outside of the nonattainment area. For this reason, going forward, we intend to provide notification of these SIP actions to tribes that have expressed interest in EPA rulemaking within the area, in addition to tribes with jurisdictional lands located within the area.
Consistent with this approach, we will include CRIT on future notifications for planning actions related to the West Mojave Desert nonattainment area.
On June 17, 2021, the EPA sent a letter inviting CRIT to discuss this proposed action and any concerns the Tribes might have, and to offer CRIT the chance to provide additional input on the action by July 2, 2021, consistent with our practices for tribal consultation and involvement.34 CRIT did not request additional discussions with the EPA or provide any additional input on this proposed action.
Comment 2: CRIT commented that the EPAs analysis does not address whether CARBs control measures for off-road mobile sources will reduce overall use of those sources. CRIT
explained that the Tribes have been involved in other regional planning efforts regarding off-road vehicles in the West Mojave Desert, and are concerned about the impact of off-road vehicle use on cultural resources and the potential for removal of artifacts.
Response to Comment 2: Off-road mobile sources include trains, aircraft, off-road equipment e.g., construction and mining vehicles and off-road recreational vehicles e.g., off-road motorcycles and all-terrain vehicles.
Within the off-road mobile source category, off-road recreational vehicles constitute a relatively small portion of the overall inventory.35 To the extent 33 Draft Consultation Best Practices at 6. The EPA
issued a final version of this document on August 22, 2021. See EPA Region IX, EPA Tribal Consultation Best Practices for Air and Radiation Division Regulatory Actions, August 22, 2021.
34 Letter dated June 17, 2021, from Elizabeth J.
Adams, Director, Air and Radiation Division, EPA
Region IX, to Amelia Flores, Chairperson, Colorado River Indian Tribes.
35 Emissions from off-road recreational vehicles are estimated at 0.034 tons per day tpd of NOX in the 2012 baseline year 0.1 percent of total off-road emissions, and 0.05 tpd in the 2026 attainment year 0.3 percent of total off-road emissions. In contrast, emissions from trains are estimated at more than 28 tpd of NOX in 2012 87 percent of total off-road emissions and 12.5 tpd in 2026 80

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