03-29427. Approval and Promulgation of Air Quality Implementation Plans; Delaware; Revisions to Delaware's Motor Vehicle Emissions Inspection Program and Low Enhanced Inspection and Maintenance Program

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is taking direct final action to approve revisions to the Delaware State Implementation Plan (SIP). The revisions effect Delaware's Motor Vehicle Emissions Inspection Program and Low Enhanced Inspection and Maintenance Program. These revisions include a five-model-year vehicle exemption, the incorporation of a New Model Year Clean Screen provision, and the addition of an on-board diagnostic (OBD) systems check. EPA is approving these revisions to Delaware's SIP in accordance with the requirements of the Clean Air Act.

DATES:

This rule is effective on January 26, 2004, without further notice, unless EPA receives adverse written comment by December 26, 2003. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule will not take effect.

ADDRESSES:

Comments may be submitted either by mail or electronically. Written comments should be mailed to Makeba Morris, Chief, Air Quality Planning Branch, Mailcode 3AP21, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Electronic comments should be sent either to [e-mail] or to http://www.regulations.gov,, which is an alternative method for submitting electronic comments to EPA. To submit comments, please follow the detailed instructions described in part III of the Supplementary Information section. 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.

FOR FURTHER INFORMATION CONTACT:

Catherine L. Magliocchetti, [phone], or by e-mail at [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background

On January 30, 2001, the Delaware Department of Natural Resources and Environmental Control (DNREC) submitted SIP revisions to Delaware Regulation 26: Motor Vehicle Emissions Inspection Program and Delaware Regulation 31: Low Enhanced Inspection and Maintenance (LEIM) Program. The revisions to Regulation 26 include a provision to exempt the five newest model year vehicles from inspection and an amendment to the program's waiver requirements. The revisions to Regulation 31 create a new car clean screen provision in the LEIM program. On September 24, 2001, DNREC submitted another SIP revision to Regulation 31 that incorporates an on-board diagnostics (OBD) systems check as part of the LEIM Program.

This rulemaking pertains to both the January 30, 2001 and September 24, 2001 SIP revisions submitted by DNREC to amend Regulations 26 and 31.

II. Summary of SIP Revision and EPA's Evaluation

On January 30, 2001, DNREC officially submitted a revision to EPA pertaining to SIP-approved Delaware Regulation 31. Regulation 31 for the LEIM program applies in Kent and New Castle Counties. The revision includes a new model year clean screen provision whereby newer model year vehicles may be exempt from exhaust and evaporative emissions testing when waiting lines at inspection stations are too long. The previous version of Regulation 31 called for the use of a low emitter profile (LEP) model to clean screen vehicles at the lanes during peak inspection periods. However, this LEP model clean screen provision of the previous version of Regulation 31 was not implemented, and long lines continued to be a problem during certain times. The main reason for not implementing the LEP clean screen program was the complexity of integrating the LEP program into the existing information systems. The revision to Regulation 31 replaces the LEP model clean screen provision with a new model year clean screen exemption to exempt vehicles that are less than eight model years old. The DNREC provided a modeling analysis that demonstrates that with this new model year clean screen provision, its LEIM program still meets the applicable performance standard required under the Federal I/M rule. Furthermore, DNREC's analysis demonstrates that with this revision to Regulation 31, its LEIM program provides more emission reductions that the previous version calling for the use of an LEP model to clean screen. For a more detailed evaluation of the modeling analysis, please see the Technical Support Document (TSD) prepared in support of this rulemaking action. Copies of that TSD are available from the EPA Regional Office listed in the ADDRESSES section of this document. EPA has determined that these revisions to Regulation 31 are consistent with the applicable requirements of the Federal I/M rule.

The DNREC's January 30, 2001 SIP revision submittal also included amendments to Delaware Regulation 26: Motor Vehicle Emissions Inspection Program, which only applies in Sussex County. The revisions to Regulation 26 include a provision to exempt the five newest model year vehicles from inspection and an amendment to the program's waiver requirements. EPA has determined that the five-year-model exemption and revised waiver provisions are consistent with the applicable requirements of the Federal I/M rule.

On September 24, 2001, DNREC submitted to EPA further revisions to Regulation 31 to incorporate an OBD systems check as part of the LEIM Program. This revision addresses the key components for making an OBD systems check part of a LEIM program such as implementation deadlines, model year coverage, test standards and procedures, waivers, and test reports. The September 24, 2001 submittal also revises Regulation 31 to clarify the test procedures for the Evaporative System Integrity Test (pressure test). EPA has determined that these revisions to Regulation 31 are consistent with the applicable requirements of the Federal I/M rule.

III. Final Action

EPA is approving the SIP revisions submitted by DNREC on January 30, 2001 pertaining to Regulations 26 and 31 and on September 24, 2001 pertaining to Regulation 31 as described in Section II of this document.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on January 26, 2004, without further notice unless EPA receives adverse comment by December 26, 2003. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

You may submit comments either electronically or by mail. To ensure proper receipt by EPA, identify the appropriate rulemaking identification number DE059-1038a in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments.

1. Electronically. If you submit an electronic comment as prescribed below, EPA recommends that you include your name, mailing address, and an e-mail address or other contact information in the body of your comment. Also include this contact information on the outside of any disk or CD ROM you submit, and in any cover letter accompanying the disk or CD ROM. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. EPA's policy is that EPA will not edit your comment, and any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.

i. E-mail. Comments may be sent by electronic mail (e-mail) to [e-mail], attention DE059-1038. EPA's e-mail system is not an “anonymous access” system. If you send an e-mail comment directly without going through Regulations.gov, EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are automatically captured by EPA's e-mail system are included as part of the comment that is placed in the official public docket.

ii. Regulations.gov. Your use of Regulation.gov is an alternative method of submitting electronic comments to EPA. Go directly to http://www.regulations.gov,, then select “Environmental Protection Agency” at the top of the page and use the “go” button. The list of current EPA actions available for comment will be listed. Please follow the online instructions for submitting comments. The system is an “anonymous access” system, which means EPA will not know your identity, e-mail address, or other contact information unless you provide it in the body of your comment.

iii. Disk or CD ROM. You may submit comments on a disk or CD ROM that you mail to the mailing address identified in the ADDRESSES section of this document. These electronic submissions will be accepted in WordPerfect, Word or ASCII file format. Avoid the use of special characters and any form of encryption.

2. By Mail. Written comments should be addressed to the EPA Regional office listed in the ADDRESSES section of this document.

For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing at the EPA Regional Office, as EPA receives them and without change, unless the comment contains copyrighted material, confidential business information (CBI), or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in the official public rulemaking file. The entire printed comment, including the copyrighted material, will be available at the Regional Office for public inspection.

Submittal of CBI Comments

Do not submit information that you consider to be CBI electronically to EPA. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the official public regional rulemaking file. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public file and available for public inspection without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person identified in the FOR FURTHER INFORMATION CONTACT section.

Considerations When Preparing Comments to EPA

You may find the following suggestions helpful for preparing your comments:

1. Explain your views as clearly as possible.

2. Describe any assumptions that you used.

3. Provide any technical information and/or data you used that support your views.

4. If you estimate potential burden or costs, explain how you arrived at your estimate.

5. Provide specific examples to illustrate your concerns.

6. Offer alternatives.

7. Make sure to submit your comments by the comment period deadline identified.

8. To ensure proper receipt by EPA, identify the appropriate regional file/rulemaking identification number in the subject line on the first page of your response. It would also be helpful if you provided the name, date, and Federal Register citation related to your comments.

IV. Statutory and Executive Order Reviews

A. General Requirements

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it 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). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects 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, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

B. 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).

C. 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 January 26, 2004. Filing a petition for reconsideration by the Administrator of this final rule 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 approving revisions to Delaware Regulations 26 and 31 pertaining to vehicle inspection and maintenance programs 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
• Intergovernmental relations
• Nitrogen dioxide
• Ozone
• Reporting and recordkeeping requirements
• Volatile organic compounds

Dated: November 13, 2003.

Maria Parisi Vickers,

Acting 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) is amended:

a. Under Regulation 26 by revising the entries for Section 1, Section 2, Section 4, Section 6, Section 9, and Technical Memorandum #1.

b. Under Regulation 31 by revising the entries for Section 1, Section 2, Section 3, Section 5, Section 6, Section 7, Section 8, Section 9, Section 13, Appendix 5(f), Appendix 6(a), Appendix 6(a)(8), and Appendix 9(a); and by adding an entry for Appendix 6(a)(9) after the existing entry for Appendix 6(a)(8).

The revisions and additions read as follows:

§ 52.420

Identification of plan.

* * * * *

(c) EPA approved regulations.

EPA-Approved Regulations in the Delaware SIP

State Citation	Title/Subject	State effective date	EPA approval date	Additional explanation
*         *         *         *         *         *         *
Regulation 26 Motor Vehicle Emissions Inspection Program
Section 1	Applicability and General Provisions	2/12/01	[11/26/03, Federal Register page citation]
Section 2	Definitions	2/12/01	[11/26/03, Federal Register page citation]
*         *         *         *         *         *         *
Section 4	Exemptions	2/12/01	[11/26/03, Federal Register page citation]
*         *         *         *         *         *         *
Section 6	Compliance, Waivers and Extensions of Time	2/12/01	[11/26/03, Federal Register page citation]
*         *         *         *         *         *         *
Section 9	Calibration and Test Procedures and Approved Equipment	2/12/01	[11/26/03, Federal Register page citation]
Technical Memoranum #1	Delaware Division of Motor Vehicles Vehicle Exhaust Emissions Test	2/12/01	[11/26/03, Federal Register page citation]	Formally referred to as Technical Memorandum 1: Motor Vehicle Inspection and Maintenance Program Vehicle Test Procecure and Machine Calibration
*         *         *         *         *         *         *
Regulation 31 Low Enhanced Inspection and Maintenance Program
Section 1	Applicability	10/11/01	[11/26/03, Federal Register page citation]
Section 2	Low Enhanced I/M Performance Standard	10/11/01	[11/26/03, Federal Register page citation]
Section 3	Network Type and Program Evaluation	10/11/01	[11/26/03, Federal Register page citation]
*         *         *         *         *         *         *
Section 5	Vehicle Coverage	10/11/01	[11/26/03, Federal Register page citation]
Section 6	Test Procedures and Standards	10/11/01	[11/26/03, Federal Register page citation]
Section 7	Waivers and Compliance Via Diagnostic Inspection	10/11/01	[11/26/03, Federal Register page citation]
Section 8	Motorist Compliance Enforcement	10/11/01	[11/26/03, Federal Register page citation]
Section 9	Enforcement Against Operators and Motor Vehicle Technicians	10/11/01	[11/26/03, Federal Register page citation]
*         *         *         *         *         *         *
Section 13	Implementation Deadlines	10/11/01	[11/26/03, Federal Register page citation]
*         *         *         *         *         *         *
Appendix 5(f)	New Model Year Clean Screen		[11/26/03, Federal Register page citation]
Appendix 6(a)	Idle Test Procedure	10/11/01	[11/26/03, Federal Register page citation]
*         *         *         *         *         *         *
Appendix 6(a)(8)	Evaporative System Integrity (pressure) Test	10/11/01	[11/26/03, Federal Register page citation]
Appendix 6(a)(9)	On-board Diagnostic Test Procedure	10/11/01	[11/26/03, Federal Register page citation]
*         *         *         *         *         *         *
Appendix 9(a)	Enforcement Against Operators and Inspectors	10/11/01	[11/26/03, Federal Register page citation]
*         *         *         *         *         *         *

* * * * *