Approval and Promulgation of Air Quality Implementation Plans; Delaware; Enhanced Motor Vehicle Inspection and Maintenance (I/M) Program

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[DE039-1026; FRL-6449-2]

Approval and Promulgation of Air Quality Implementation Plans;

Delaware; Enhanced Motor Vehicle Inspection and Maintenance (I/M)

Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision

submitted by the State of Delaware. This revision establishes and

requires the implementation of an 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 approve the Delaware enhanced motor vehicle

I/M program as a SIP revision under the Clean Air Act (the Act).

EFFECTIVE DATE: This final rule is effective on November 1, 1999.

ADDRESSES: Copies of the documents relevant to this action are

available for public inspection during normal business hours at the Air

Protection Division, U.S. Environmental Protection Agency, Region III,

1650 Arch Street, Philadelphia, Pennsylvania 19103; and Delaware

Department of Natural Resources & Environmental Control, 89 Kings

Highway, Dover, Delaware 19903.

FOR FURTHER INFORMATION CONTACT: Jill Webster, (215) 814-2033, or by e-

mail at Webster.J[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

On July 7, 1999 (64 FR 36635), EPA published a notice of proposed

rulemaking (NPR) for the State of Delaware. The NPR proposed approval

of revisions to the SIP for an enhanced motor vehicle I/M program. The

formal SIP revision was submitted by the Delaware Department of Natural

Resources and Environmental Control (DNREC) on June 16, 1998 and

additional revisions were submitted on May 24, 1999. A description of

Delaware's submittals and EPA's rationale for our proposed action were

presented in the NPR and will not be restated here. No public comments

were received on the NPR.

Additionally, EPA is not requiring the State of Delaware to

implement section 40 CFR 51.356 (a)(4) dealing with federal

installations within I/M areas at this time. The Department of Justice

has recommended to EPA that these provisions of the federal I/M

regulation be revised since it appears to grant states authority to

regulate federal installations in circumstances where the federal

government has not waived sovereign immunity. Federally owned vehicles

operated in Delaware are required to meet the same requirements as

Delaware registered vehicles, but it would not be appropriate to

require compliance with this regulation if it is not constitutionally

authorized. EPA will be revising these provisions in the future. EPA

will review state I/M SIPs with respect to this issue when the revised

rule is final. EPA is neither approving nor disapproving requirements

which apply to federal facilities at this time.

EPA believes that approval of Delaware's I/M program was

sufficiently proposed in the rulemaking process and that omitting its

requirements pursuant to section 40 CFR 51.356(a)(4) from this approval

would not warrant further comment, because responsibility for

compliance with those requirements rests with the Federal government.

For this reason, EPA invokes the ``good cause'' clause of the

Administrative Procedure Act section 553(b)(B) to make this change in

this final notice. It would be contrary to the public interest to take

final action on these provisions which may be unconstitutional and

which EPA is currently revising.

II. Final Action

EPA is approving Delaware's low enhanced I/M program as a revision

to the Delaware SIP, with the exception of its provisions for federal

facilities.

III. Administrative Requirements

A. Executive Orders 12866

The Office of Management and Budget (OMB) has exempted this

regulatory action from review under E.O. 12866, entitled ``Regulatory

Planning and Review.''

B. Executive Orders on Federalism

Under E.O. 12875, EPA may not issue a regulation that is not

required by statute and that creates a mandate upon

[[Page 52658]]

a state, local, or tribal government, unless the Federal government

provides the funds necessary to pay the direct compliance costs

incurred by those governments. If EPA complies by consulting, E.O.

requires EPA to provide to the Office of Management and Budget a

description of the extent of EPA's prior consultation with

representatives of affected state, local, and tribal governments, the

nature of their concerns, copies of written communications from the

governments, and a statement supporting the need to issue the

regulation. In addition, E.O. 12875 requires EPA to develop an

effective process permitting elected officials and other

representatives of state, local, and tribal governments ``to provide

meaningful and timely input in the development of regulatory proposals

containing significant unfunded mandates.'' Today's rule does not

create a mandate on state, local or tribal governments. The rule does

not impose any enforceable duties on these entities. Accordingly, the

requirements of section 1(a) of E.O. 12875 do not apply to this rule.

On August 4, 1999, President Clinton issued a new executive order

on federalism, Executive Order 13132, (64 FR 43255 (August 10, 1999),

which will take effect on November 2, 1999. In the interim, the current

Executive Order 12612, (52 FR 41685 (October 30, 1987), on federalism

still applies. This rule will not have a substantial direct effect on

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, as specified in Executive Order 12612.

The rule affects only one State, and does not alter the relationship or

the distribution of power and responsibilities established in the Clean

Air Act.

C. Executive Order 13045

E.O. 13045, entitled ``Protection of Children from Environmental

Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies

to any rule that the EPA determines (1) is ``economically

significant,'' as defined under E.O. 12866, and (2) the environmental

health or safety risk addressed by the rule has a disproportionate

effect on children. If the regulatory action meets both criteria, the

Agency must evaluate the environmental health or safety effects of the

planned rule on children and explain why the planned regulation is

preferable to other potentially effective and reasonably feasible

alternatives considered by the Agency. This final rule is not subject

to E.O. 13045 because it is not an economically significant regulatory

action as defined by E.O. 12866, and it does not address an

environmental health or safety risk that would have a disproportionate

effect on children.

D. Executive Order 13084

Under E.O. 13084, EPA may not issue a regulation that is not

required by statute, that significantly affects or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments. If EPA complies by

consulting, Executive Order 13084 requires EPA to provide to the Office

of Management and Budget, in a separately identified section of the

preamble to the rule, a description of the extent of EPA's prior

consultation with representatives of affected tribal governments, a

summary of the nature of their concerns, and a statement supporting the

need to issue the regulation. In addition, Executive Order 13084

requires EPA to develop an effective process permitting elected and

other representatives of Indian tribal governments ``to provide

meaningful and timely input in the development of regulatory policies

on matters that significantly or uniquely affect their communities.''

Today's rule does not significantly or uniquely affect the communities

of Indian tribal governments. This action does not involve or impose

any requirements that affect Indian Tribes. Accordingly, the

requirements of section 3(b) of E.O. 13084 do not apply to this rule.

E. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency

to conduct a regulatory flexibility analysis of any rule subject to

notice and comment rulemaking requirements unless the agency certifies

that the rule will not have a significant economic impact on a

substantial number of small entities. Small entities include small

businesses, small not-for-profit enterprises, and small governmental

jurisdictions. This final rule will not have a significant impact on a

substantial number of small entities because SIP approvals under

section 110 and subchapter I, part D of the Clean Air Act do not create

any new requirements but simply approve requirements that the State is

already imposing. Therefore, because the Federal SIP approval does not

create any new requirements, I certify that this action will not have a

significant economic impact on a substantial number of small entities.

Moreover, due to the nature of the Federal-State relationship under the

Clean Air Act, 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).

F. 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

annual 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 approval action promulgated does not

include a Federal mandate that may result in estimated annual costs of

$100 million or more to either 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.

G. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the

Small Business Regulatory Enforcement Fairness Act of 1996, generally

provides that before a rule may take effect, the agency promulgating

the rule must submit a rule report, which includes a copy of the rule,

to each House of the Congress and to the Comptroller General of the

United States. EPA will submit 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 United States prior

to publication of the rule in the Federal Register. This rule is not a

``major rule'' as defined by 5 U.S.C. 804(2).

[[Page 52659]]

H. 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 November 29, 1999. Filing a

petition for reconsideration by the Administrator of this final rule to

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).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Hydrocarbons, Intergovernmental relations, Nitrogen dioxide, Ozone,

Reporting and recordkeeping requirements.

Dated: September 20, 1999.

W. Michael McCabe,

Regional Administrator, Region III.

40 CFR part 52 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 et seq.

Subpart I--Delaware

2. In Section 52.420, the table in paragraph (c) entitled ``EPA-

Approved Regulations in the Delaware SIP'' is amended by revising the

entry for Regulation 26--Motor Vehicle Emissions Inspections Program,

and adding an entry for Regulation 31--Low Enhanced Inspection and

Maintenance Program.

Sec. 52.420 Identification of plan.

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(c) EPA approved regulations.

EPA-Approved Regulations in the Delaware SIP

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State

State citation Title subject effective EPA approval date Comments

date

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Regulation 26 MOTOR VEHICLE EMISSIONS INSPECTION PROGRAM

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Section 1................... Applicability and 4/1/90 1/06/92.................... Regulation 26

Definitions. 57 FR 351.................. provisions

apply to Sussex

County only,

effective

November 1,

1999.

Section 2................... General Provisions.... 4/1/90 1/06/92....................

57 FR 351..................

Section 3................... Registration 5/9/85 12/08/86................... ................

Requirement. 51 FR 44068................

Section 4................... Exemptions............ 4/1/90 01/06/92................... ................

57 FR 351..................

Section 5................... Enforcement........... 7/6/82 10/17/83................... ................

48 FR 46986................

Section 6................... Compliance, Waivers, 4/1/90 01/06/92................... ................

Extensions of Time, 57 FR 351..................

and Repairs.

Section 7................... Inspection Facility 7/6/82 10/17/83................... ................

Requirements. 48 FR 46986................

Section 8................... Certification of Motor 7/6/82 10/17/83................... ................

Vehicle Officers. 48 FR 46986................

Section 9................... Calibration and Test 7/6/82 10/17/83................... ................

Procedures and 48 FR 46986................

Approved Equipment.

Technical Memorandum 1...... Motor Vehicle 4/1/90 01/06/92................... ................

Inspection and 57 FR 351..................

Maintenance Program

Vehicle Test

Procedure and Machine

Calibration.

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Regulation 31 Low Enhanced Inspection and Maintenance Program

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Section 1................... Applicability......... 8/13/98 9/30/99.................... Provisions apply

to New Castle

and Kent

Counties

Section 2................... Low Enhanced I/M 8/13/98 9/30/99.................... ................

performance standard.

Section 3................... Network type and 6/11/99 9/30/99.................... ................

program evaluation.

Section 4................... Test Frequency and 6/11/99 9/30/99.................... ................

Convenience.

Section 5................... Vehicle Coverage- 6/11/99 9/30/99.................... ................

except paragraph (4)

which applies to

federal facilities.

Section 6................... Test Procedures and 6/11/99 9/30/99.................... ................

Standards.

Section 7................... Waivers and Compliance 8/13/98 9/30/99.................... ................

Via Diagnostic

Inspection.

Section 8................... Motorist Compliance 8/13/98 9/30/99.................... ................

Enforcement.

Section 9................... Enforcement Against 8/13/98 9/30/99.................... ................

Operators and Motor

Vehicle Technicians.

Section 10.................. Improving Repair 8/13/98 9/30/99.................... ................

Effectiveness.

Section 11.................. Compliance with Recall 8/13/98 9/30/99.................... ................

Notices.

Section 12.................. On-Road Testing....... 8/13/98 9/30/99.................... ................

[[Page 52660]]

Section 13.................. Implementation 6/11/99 9/30/99.................... ................

Deadlines.

Appendix 1(d)............... Commitment to Extend 8/13/98 9/30/99.................... ................

the I/M Program to

the Attainment Date

Letter from Secretary

Tulou to EPA

Administrator, W.

Michael McCabe.

Appendix 3 (a)(7)........... Exhaust Emission 8/13/98 9/30/99.................... ................

Limits According to

Model Year.

Appendix 3(c)(2)............ VMASTM Test Procedure. 6/11/99 9/30/99.................... ................

Appendix 4(a)............... Sections from Delaware 8/13/98 9/30/99.................... ................

Criminal and Traffic

Law Manual.

Appendix 5(a)............... Division of Motor 8/13/98 9/30/99.................... ................

Vehicles Policy on

Out-of-State Renewals.

Appendix 5(f)............... Clean Screening 6/11/99 9/30/99.................... ................

Vehicle Exemption.

Appendix 6(a)............... Idle Emissions Test 6/11/99 9/30/99.................... ................

Procedures.

Appendix 6(a)(5)............ Vehicle Emission 8/13/98 9/30/99.................... ................

Repair Report Form.

Appendix 6(a)(8)............ Evaporative System 8/13/98 9/30/99.................... ................

Integrity (Pressure)

Test.

Appendix 7(a)............... Emission Repair 8/13/98 9/30/99.................... ................

Technician

Certification Process.

Appendix 8(a)............... Registration Denial 8/13/98 9/30/99.................... ................

System Requirements

Definition.

Appendix 9(a)............... Enforcement Against 8/13/98 9/30/99.................... ................

Operators and

Inspectors.

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Sec. 52.424 [Amended]

3. In section 52.424, paragraph (b) is removed and reserved.

[FR Doc. 99-25424 Filed 9-29-99; 8:45 am]

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