[Federal Register Volume 62, Number 96 (Monday, May 19, 1997)]
[Rules and Regulations]
[Pages 27195-27198]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-12629]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[DE-28-1009; FRL-5823-4]


Approval and Promulgation of Air Quality Implementation Plans; 
State of Delaware; Enhanced Motor Vehicle Inspection and Maintenance 
Program

ACTION: Final conditional approval.

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SUMMARY: EPA is granting conditional approval of a State Implementation 
Plan (SIP) revision submitted by the State of Delaware. This revision 
establishes and requires the implementation of a low enhanced motor 
vehicle inspection and maintenance (I/M) program in the counties of 
Kent and New Castle. The intended effect of this action is to 
conditionally approve the Delaware enhanced motor vehicle I/M program. 
EPA is conditionally approving Delaware's SIP revision based on the 
fact that: Delaware's SIP is deficient in certain aspects with respect 
to the

[[Page 27196]]

requirements of the Act and EPA's I/M program regulations. Delaware has 
made a commitment in a letter, dated March 6, 1997, to work with EPA to 
address the noted deficiencies by a date certain within one year from 
June 18, 1997. This action is taken under section 110 of the 1990 Clean 
Air Act(CAA).

EFFECTIVE DATE: This final rule is effective on June 18, 1997.

ADDRESSES: Copies of the documents relevant to this action are 
available for public inspection during normal business hours at the 
Air, Radiation, and Toxics Division, U.S. Environmental Protection 
Agency, Region III, 841 Chestnut Building, Philadelphia, Pennsylvania 
19107 and the Delaware Department of Natural Resources and 
Environmental Control, Air Quality Management Section, Division of Air 
and Waste Management, 89 Kings Highway, P.O. Box 1401, Dover, Delaware, 
19903.

FOR FURTHER INFORMATION CONTACT: Paul T. Wentworth, P.E. at 215566-2183 
at the EPA Region III address above, or via e-mail at 
Wentworth.P[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On February 5, 1997, (62 FR 5361), EPA published a notice of 
proposed rulemaking (NPR) for the State of Delaware. The NPR proposed 
conditional approval of Delaware's low enhanced inspection and 
maintenance program, submitted on February 17, 1995 and supplemented on 
November 30, 1995, by the Delaware Department of Natural Resources and 
Environmental Control (DNREC). A description of Delaware's submittal 
and EPA's rationale for its proposed action were presented in the NPR 
and will not be restated here.

II. Public Comments/Response to Public Comments

    There were no comments received during the public comment period on 
this notice.

III. Conditional Approval

    Under the terms of EPA's February 5, 1997 notice of proposed 
conditional approval rulemaking (62 FR 5361), Delaware was required to 
make commitments to remedy deficiencies with the I/M program SIP (as 
specified in the above notice) within twelve months of today's final 
conditional approval notice. On March 6, 1997, Christophe Tulou, 
Secretary of the Delaware DNREC, submitted a letter to Michael McCabe, 
Regional Administrator, EPA Region III, committing to address, by a 
date certain, all of the deficiencies listed in EPA's February 5, 1997 
NPR. EPA has indicated in its acknowledgment letter to Delaware that it 
interprets this letter as a commitment to remedy all of the 
deficiencies that are listed in the proposed conditional approval 
notice 62 FR 5361) by June 18, 1997.
    Because Delaware has submitted the commitment letter called for in 
EPA's February 5, 1997 NPR, EPA is today taking final conditional 
approval action upon the Delaware I/M SIP, under section 110 of the 
CAA.

IV. Final Rulemaking Action

    EPA is conditionally approving Delaware's low enhanced I/M program 
as a revision to the Delaware SIP, based upon certain conditions. 
Should the State fail to fulfill the conditions by the deadline of no 
more than one year from June 18, 1997, this conditional approval will 
convert to a disapproval pursuant to CAA section 110(k). In that event, 
EPA would issue a letter to notify the State that the conditions had 
not been met, and that the approval had converted to a disapproval.

VI. Administrative Requirements

    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any state implementation plan. Each request for revision to 
the state implementation plan shall be considered separately in light 
of specific technical, economic, and environmental factors and in 
relation to relevant statutory and regulatory requirements.

A. Executive Order 12866

    This action has been classified as a Table 3 action for signature 
by the Regional Administrator under the procedures published in the 
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a 
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for 
Air and Radiation. The Office of Management and Budget (OMB) has 
exempted this regulatory action from E.O. 12866 review.

B. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    Conditional approvals of SIP submittals under section 110 and 
subchapter I, part D of the CAA do not create any new requirements but 
simply approve requirements that the State is already imposing. 
Therefore, because the Federal SIP approval does not impose any new 
requirements, EPA certifies that it does not have a significant impact 
on any small entities affected. Moreover, due to the nature of the 
Federal-State relationship under the CAA, preparation of a flexibility 
analysis would constitute Federal inquiry into the economic 
reasonableness of state action. The Clean Air Act forbids EPA to base 
its actions concerning SIPs on such grounds. Union Electric Co. v. U.S. 
EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).
    If the conditional approval is converted to a disapproval under 
section 110(k), based on the State's failure to meet the commitment, it 
will not affect any existing state requirements applicable to small 
entities. Federal disapproval of the state submittal does not affect 
its state-enforceability. Moreover, EPA's disapproval of the submittal 
does not impose a new Federal requirement. Therefore, EPA certifies 
that this disapproval action does not have a significant impact on a 
substantial number of small entities because it does not remove 
existing requirements nor does it substitute a new federal requirement.

C. Unfunded Mandates

    Under Section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate; or to 
private sector, of $100 million or more. Under Section 205, EPA must 
select the most cost-effective and least burdensome alternative that 
achieves the objectives of the rule and is consistent with statutory 
requirements. Section 203 requires EPA to establish a plan for 
informing and advising any small governments that may be significantly 
or uniquely impacted by the rule.
    EPA has determined that the conditional approval action promulgated 
does not include a Federal mandate that may result in estimated costs 
of $100 million or more to either

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State, local, or tribal governments in the aggregate, or to the private 
sector. This Federal action approves pre-existing requirements under 
State or local law, and imposes no new requirements. Accordingly, no 
additional costs to State, local, or tribal governments, or to the 
private sector, result from this action.

D. Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report 
containing this rule and other required information to the U.S. Senate, 
the U.S. House of Representatives and the Comptroller General of the 
General Accounting Office prior to publication of the rule in today's 
Federal Register. This rule is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

E. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by July 18, 1997.
    Filing a petition for reconsideration by the Administrator of this 
final rule to conditionally approve the Delaware enhanced I/M SIP does 
not affect the finality of this rule for the purposes of judicial 
review, nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2) of the 
Administrative Procedures Act).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Hydrocarbons, Nitrogen dioxide, Ozone, Reporting and record keeping 
requirements.

    Dated: April 29, 1997.
W. Wisniewski,
Acting Regional Administrator, Region III.
    Chapter I, title 40, of the Code of Federal Regulations is amended 
as follows:

PART 52--[AMENDED]

    1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401-7671q.

Subpart I--Delaware

    2. Section 52.424 is amended by adding paragraph (b) to read as 
follows:


Sec. 52.424  Conditional Approval.

* * * * *
    (b) The State of Delaware's February 17, 1995 submittal for an 
enhanced motor vehicle inspection and maintenance (I/M) program, and 
the November 30, 1995 submittal of the performance standard evaluation 
of the low enhanced program, is conditionally approved based on certain 
contingencies.
    The following conditions must be addressed in a revised SIP 
submission. Along with the conditions listed is a separate detailed I/M 
checklist explaining what is required to fully remedy the deficiencies 
found in the proposed notice of conditional approval. This checklist is 
found in the Technical Support Document (TSD), located in the docket of 
this rulemaking, that was prepared in support of the proposed 
conditional I/M rulemaking for Delaware. This checklist and Technical 
Support document are available at the Air, Radiation, and Toxics 
Division, 841 Chestnut Bldg., Philadelphia, PA 19107, Telephone (215) 
566-2183. By no later than one year from June 18, 1997, Delaware must 
submit a revised SIP that meets the following conditions for 
approvability:
    (1) Provide a statement from an authorized official that the 
authority to implement Delaware's I/M program as stated above will 
continue through the attainment date and provide ZIP code information 
for the affected counties under the I/M program.
    (2) Submit to EPA adopted regulations or procedures that implement 
an on-road vehicle testing program and remodel its program and 
demonstrate compliance with the I/M parameter standard so that it meets 
all the requirements of 40 CFR 51.351.
    (3) Submit to EPA a description of the evaluation schedule and 
protocol, the sampling methodology, the data collection and analysis 
system, the resources and personnel for evaluation, and related details 
of the evaluation program, and the legal authority enabling the 
evaluation program that meet all the requirements of 40 CFR 51.353.
    (4) Submit to EPA procedures or regulations that detail the number 
of personnel and equipment dedicated to the quality assurance program, 
data collection, data analysis, program administration, enforcement, 
public education and assistance, on-road testing and other necessary 
functions that meet all the requirements of 40 CFR 51.354.
    (5) Submit to EPA procedures or regulations that meet the 
requirements of 40 CFR 51.355. This includes a description of the test 
year selection scheme, and how the test frequency is integrated into 
the enforcement process. This description must include the legal 
authority, regulations or contract provisions to implement and enforce 
the test frequency. The program must be designed to provide convenient 
service to the motorist by ensuring short wait times, short driving 
distances and regular testing hours.
    (6) Submit to EPA a description of vehicles covered by Delaware's 
I/M program, broken down by model year, and weight; an accounting for 
registered vehicles and those required to be registered in order to 
provide an estimate of unregistered vehicles subject to the I/M 
program. Delaware also needs to submit provisions in its regulations 
that provide for fleet testing; testing vehicles registered in other 
program areas; and provide the legal authority or rules necessary to 
implement fleet testing. With regard to the fleet inspection program, 
Delaware needs to develop regulations and procedures that address fleet 
inspections and account for this in its vehicle coverage and in the 
modeling of the performance standard. In addition, Delaware must 
provide information on exempted vehicles regarding number, fleet 
percentage and account for them in its emissions reduction analysis. 
This submission must meet the requirements of 40 CFR 51.356.
    (7) Submit to EPA procedures or regulations that address the 
requirements of 40 CFR 51.357.
    (8) Submit to EPA regulations or procedures that address the 
requirements of 40 CFR 51.358.
    (9) Submit to EPA regulations or procedures that address the 
requirements of 40 CFR 51.359, including: a quality control procedures 
manual or related document; proper calibration measures and associated 
recordkeeping; preventive maintenance measures/provisions for proper 
recording of quality control information.
    (10) Submit to EPA regulations and/or procedures that address the 
requirements of 40 CFR 51.360. These include: provisions that implement 
a consumer price index (CPI) adjusted $450 waiver for Kent and New 
Castle Counties, where the low enhanced program applies.
    (11) Submit to EPA regulations and/or procedures that meet the 
requirements of 40 CFR 51.361, including providing EPA with the 
specific details of its Motorist Compliance Enforcement program, 
providing a commitment to maintain a specified enforcement level to be 
used for modeling purposes. Also Delaware

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must provide regulations and legislation that implement a registration 
denial system.
    (12) Submit to EPA regulations or procedures that meet the 
requirements of 40 CFR 51.362, including: providing procedures or 
regulations that detail how the motorist compliance enforcement 
oversight program will be implemented and a demonstration of the 
program's functionality.
    (13) Submit to EPA regulations or procedures that meet the 
requirements of 40 CFR 51.363, including: providing procedures or 
regulations that detail how the quality assurance motorist compliance 
enforcement oversight program will be implemented and a demonstration 
of the program's functionality.
    (14) Submit to EPA regulations or procedures that meet all the 
requirements of 40 CFR 51.364, including: providing the legal authority 
for establishing and imposing penalties, civil fines, license 
suspensions and revocations; providing quality assurance officials of 
the state with the authority to temporarily suspend station and/or 
inspector licenses immediately upon finding a violation that directly 
affects emissions reduction benefits, or an official opinion explaining 
any state constitutional impediments to such immediate suspension 
authority; and providing a description of the administrative and 
judicial procedures and responsibilities relevant to the enforcement 
process, including which agencies courts and jurisdictions are 
involved, who will prosecute and adjudicated cases and the resources 
and sources of the those resources which will support this function.
    (15) Demonstrate that Delaware has existing data procedures that 
meet the requirements of 40 CFR 51.365; or develop and submit to EPA 
regulations, or procedures that meet all the requirements of 40 CFR 
51.365.
    (16) Demonstrate that Delaware has existing data analysis 
procedures that meet the requirements of 40 CFR 51.366 or develop and 
submit provisions/ procedures that meet the requirements of 40 CFR 
51.366.
    (17) Provide to the EPA details of the inspectors training course 
along with addressing all of the requirements of 40 CFR 51.367.
    (18) Provide to the EPA the details of the provisions and/or 
measures that will implement to protect the consumer and provide for 
the public awareness as well as address the rest of the requirements of 
40 CFR 51.368.
    (19) Provide to the EPA the details of the technician training 
course that it is developing and address the requirements of 40 CFR 
51.369.
    (20) Provide to the EPA documents and/or provisions that meet the 
requirements of 40 CFR 51.370, including: providing details of its 
provisions to ensure that vehicles subject to enhanced I/M and are 
included in an emission related to recall, receive the required repairs 
prior to completing the emissions test and or renewing the vehicle 
registration.
    (21) Meet the requirements of 40 CFR 51.371, including: adopting 
legislation that gives authority to implement an on-road testing 
program; providing details of an on-road testing program.

[FR Doc. 97-12629 Filed 5-16-97; 8:45 am]
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