[Federal Register Volume 62, Number 24 (Wednesday, February 5, 1997)]
[Proposed Rules]
[Pages 5361-5370]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-2847]


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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[DE-28-1007; FRL-5684-3]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed conditional approval.

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SUMMARY: EPA is proposing 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 propose conditional approval of the Delaware enhanced motor vehicle 
I/M program. EPA is proposing conditional approval because Delaware's 
SIP revision is deficient in certain aspects with respect to the 
requirements of the Clean Air Act and EPA's I/M program regulations. 
EPA regards the following deficiencies of the Delaware program as those 
most significantly affecting the program's operation: Lack of legal 
authority, finalized program regulations, certain testing and quality 
control procedures, waiver requirements; program evaluation 
requirements, sufficient quality control procedures and requirements; 
complete equipment specifications; specific enforcement requirements; 
certain public information and consumer enforcement requirements; 
certain public information and consumer protection requirements; 
sufficient enforcement authority; sufficient test documentation through 
test memoranda and procedural memoranda. EPA is currently working with 
the State on correcting these deficiencies. Delaware conducted a public 
hearing on December 18, 1996 on additional revisions to the Delaware I/
M SIP which are intended to remedy some of the deficiencies noted in 
this notice. However, today's rulemaking applies to Delaware's I/M SIP 
submissions of February 24, 1995 and November 30, 1995 which are 
currently pending before EPA. EPA expects that Delaware will work, 
promptly to remedy these items, through future submissions necessary to 
meet the I/M rule requirements. In this notice, EPA cites its concerns 
with the Delaware I/M program. While some of these concerns are less 
significant to the program's immediate success, they still need to be 
corrected so as to achieve the program's full air quality protection 
potential. This action is taken under section 110 of the Clean Air Act.

DATES: Comments must be received on or before March 7, 1997.

ADDRESSES: Comments may be mailed to David L. Arnold, Chief, Ozone/CO & 
Mobile Sources Section, Mailcode 3AT21, U.S. Environmental Protection 
Agency, Region III, 841 Chestnut Building, Philadelphia, Pennsylvania 
19107. 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, PO 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<a href="/cdn-cgi/l/email-protection#2c4d59406c495c4d414d454002495c4d024b435a"><span class="__cf_email__" data-cfemail="bcddc9d0fcd9ccddd1ddd5d092d9ccdd92dbd3ca">[email protected]</span></a>. While information may be requested via 
e-mail, comments must be submitted in writing to the Region III office.

SUPPLEMENTARY INFORMATION:

I. Introduction

    Motor vehicles are significant contributors of volatile organic 
compounds (VOC), carbon monoxide (CO) and nitrogen oxide (NO<INF>X) 
emissions. An important control measure to reduce these emissions is 
the implementation of a motor vehicle I/M program. Despite being 
subject to the most rigorous vehicle pollution control program in the 
world, cars and trucks still create toxic contaminants, about half of 
the ozone air pollution and nearly all of the carbon monoxide air 
pollution in United States cities. Of all highway vehicles, passenger 
cars and light-duty trucks emit most of the vehicle-related carbon 
monoxide and ozone-forming hydrocarbons. They also emit substantial 
amounts of nitrogen oxides and air toxics. Although the U.S. has made 
progress in reducing emissions of these pollutants, total fleet 
emissions remain high. This is because the number of vehicle miles 
traveled on U.S. roads has doubled in the last 20 years to 2 trillion 
miles per year, offsetting much of the technological progress in 
vehicle emission control over the same two decades. Projections 
indicate that the steady growth in vehicle travel will continue. 
Ongoing efforts to reduce emissions from individual vehicles will be 
necessary to achieve our air quality goals.
    Today's cars are absolutely dependent on properly functioning 
emission controls to keep pollution levels low. Minor malfunctions in 
the emission control system can increase emissions significantly, and 
the average car on the road emits three to four times the new car 
standard. Major malfunctions in the emission control system can cause 
emissions to skyrocket. As a result, 10

[[Page 5362]]

to 30 percent of cars are causing the majority of the vehicle-related 
pollution problem. Unfortunately, it is rarely obvious which cars fall 
into this category, as the emissions themselves may not be noticeable 
and emission control malfunctions do not necessarily affect vehicle 
driveability.
    Effective I/M programs, however, can identify these problem cars 
and assure their repair. I/M programs ensure that cars are properly 
maintained during customer use. I/M produces emission reduction results 
soon after the program is put in place. The Clean Air Act as amended in 
1990 (herein referred to as the Act) requires that most polluted areas 
adopt either ``basic'' or ``enhanced'' I/M programs, depending on the 
severity of the problem and the population of the area. The moderate 
ozone nonattainment areas, plus marginal ozone areas with existing or 
previously required I/M programs, fall under the ``basic'' I/M 
requirements. Enhanced programs are required in serious, severe, and 
extreme ozone nonattainment areas with urbanized populations of 200,000 
or more; CO areas that exceed a 12.7 parts per million (ppm) design 
value <SUP>1 with urbanized populations of 100,000 or more in the 
Northeast Ozone Transport Region (OTR).
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    \1\  The air quality design value is estimated using EPA 
guidance. Generally, the fourth highest monitored value with 3 
complete years of data is selected as the ozone design value because 
the standard allows one exceedance for each year. The highest of the 
second high monitored values with 2 complete years of data is 
selected as the carbon monoxide design value.
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    ``Basic'' and ``enhanced'' I/M programs both achieve their 
objective by identifying vehicles that have high emissions as a result 
of one or more malfunctions, and by requiring them to be repaired. An 
``enhanced'' program covers more of the vehicles in operation, employs 
inspection methods that are better at finding high emitting vehicles, 
and has additional features to better assure that all vehicles are 
tested properly and effectively repaired.
    The Act requires states to make changes to improve existing I/M 
programs or to implement new ones for certain nonattainment areas. 
Section 182(a)(2)(B) of the Act directed EPA to publish updated 
guidance for I/M programs, taking into consideration findings of the 
Administrator's audits and investigations of these programs. The Act 
further requires each area to have an I/M program that incorporates 
this guidance into the SIP. Based on these requirements, EPA 
promulgated I/M regulations on November 5, 1992 (57 FR 52950, codified 
at 40 Code of Federal Regulations (CFR) 51.350-51.373, herein referred 
to as the November 1992 Rule. Flexibility amendments to this rule, 
which provided for a low enhanced I/M performance standard were 
published on September 18, 1995 (60 FR 48029) and additional I/M 
flexibility amendments for qualified areas in the OTR were published on 
July 25, 1996 (61 FR 39031).
    Under sections 182(c)(3), 187(a)(6) and 187(b)(1) of the Act, any 
area having a 1980 Bureau of Census-Defined urbanized area populations 
of 200,000 or more and that is either: (1) Designated as serious or 
worse ozone nonattainment or (2) moderate or serious CO attainment 
areas with a design value greater than 12.7 ppm. shall implement 
enhanced I/M in the 1990 Census-defined urbanized area. The Act also 
established the OTR in the Northeastern United States which includes 
the States of Maine, Vermont, New Hampshire, Massachusetts, Rhode 
Island, Connecticut, Pennsylvania, New York, New Jersey, Delaware, 
Maryland, and Northern Virginia and the District of Columbia. Sections 
182(c)(3) and 184(b)(1)(A) of the Act require the implementation of 
enhanced I/M programs in all metropolitan statistical areas (MSAs) 
located in the OTR that have a population of 100,000 or more people.
    EPA's rules for I/M established a low and high enhanced standard. 
The high enhanced I/M program achieves a greater reduction in emissions 
(approximately 36%) and uses a highly technical test method. The low 
enhanced I/M performance standard provides flexibility for 
nonattainment areas that are required to implement enhanced I/M 
programs but which can meet the Act's emission reduction requirements 
for reasonable further progress (commonly referred to as 15% plans) and 
attainment from other sources without the stringency of the high 
enhanced I/M performance standard (60 FR 48029). All other provisions 
of the November 5, 1992 I/M rule, except as revised in 60 FR 48029 for 
extension of waivers and expenditure requirements, remain applicable to 
states available for low enhanced I/M. 40 CFR 51.35(g) provides that 
states may select the low enhanced performance standard if they have an 
approved SIP for 15%. In today's Federal Register EPA is also proposing 
conditional approval of Delaware's 15% plan.
    The I/M regulation also establishes requirements for the following: 
Network type and program evaluation; adequate tools and resources; test 
frequency and convenience; vehicle coverage; test procedures and 
standards; test equipment; quality control; waivers and compliance via 
diagnostic inspection; motorist compliance enforcement; motorist 
compliance enforcement program oversight; quality assurance; 
enforcement against contractors, stations and inspectors; data 
collection; data analysis and reporting; inspector training and 
licensing or certification; public information and consumer protection; 
improving repair effectiveness; compliance with recall notices; on-road 
testing; SIP revisions; and implementation deadlines. The performance 
standard for the high enhanced I/M program is different from the low 
enhanced program in that the high enhanced performance standard is 
based on high-technology transient test, known as IM240, for new 
technology vehicles (i.e, those with closed-loop control and 
especially, fuel injected engines), including a transient loaded 
exhaust short test incorporating hydrocarbons (HC), CO and NO<INF>X 
cutpoints, and evaporative system integrity (pressure) test and an 
evaporative system performance (purge) test. The low enhanced 
performance standard, however, allows for idle testing in place of 
high-tech testing.
    Under the November 1992 I/M Rule enhanced I/M programs were 
required to initially begin phased-in implementation by January 1, 
1995, with final full implementation slated for January 1, 1996. Due to 
recent EPA rule changes, and the flexibility afforded by the National 
Highway Systems Designation Act of 1995 (NHA), EPA believes, as 
explained below, that all states should be afforded extra time to begin 
full implementation of their enhanced I/M programs.

II. Background

    Delaware is part of the OTR and contains the following portions of 
the MSA that have a population of 100,000 or more: The MSA containing 
Kent and the MSA containing New Castle Counties. Section 182(c)(3) and 
184(b)(1)(A) of the Act requires all states in the OTR region which 
contain MSAs or parts thereof with populations of 100,000 or more, to 
submit a SIP revision for an enhanced I/M program. Furthermore, both 
Kent and New Castle Counties are part of the Philadelphia-Wilmington-
Trenton severe ozone nonattainment area. Section 51.351(g) of the 
November 1992 I/M rule as amended by 60 FR 48029 provides that states 
may select the low enhanced performance standard if they have an 
approved SIP for 15%. As previously stated, EPA is, today, also 
proposing

[[Page 5363]]

conditional approval of Delaware's 15% plan.
    On February 17, 1995 the Delaware Department of Natural Resources 
and Environmental Control (DNREC) officially submitted to EPA a 
revision to the Delaware SIP for an I/M program in Delaware, Kent and 
New Castle Counties. The submittal consisted of a copy of the final 
regulations in Regulation Numbers 26 and 33 of the Delaware Regulations 
Governing the Control of Air Pollution, by way of Secretary Order 
number 95-A-0012. On November 30, 1995 Delaware officially submitted 
the performance standard evaluation as a supplement to the February 17, 
1995 SIP submittal. The performance standard evaluation provides for a 
low enhanced I/M program. Regulation 26 provides for the requirement 
that all repairs be done by a certified repair technician. Regulation 
33 provides for pressure test and anti-tampering checks on vehicles in 
Kent and New Castle Counties.
    EPA's summary of the requirements of the November 1992 I/M Rule as 
found in 40 CFR 51.350 through 51.373, and EPA's analysis of Delaware's 
submittal are outlined below. A more detailed analysis of Delaware's 
submittal is contained in a Technical Support Document (TSD) dated 11/
27/96 which is available from the Region III office, listed in the 
ADDRESSES section. Parties desiring additional details on the federal 
I/M regulation are referred to the November 5, 1992 Federal Register 
notice (57 FR 52950) or 40 CFR 51.350-51.37, as well as the I/M 
Flexibility Amendments in the September 18, 1995 Federal Register 
notice (60 FR 48029) and the additional I/M flexibility amendments for 
qualified areas in the OTR, published on July 25, 1996 at (61 FR 39031)

III. EPA's Analysis of Delaware's Low Enhanced I/M Program

    As discussed above, section 182(c)(3), 184(b)(1)(A), 87(a)(6) and 
187(b)(1) of the Act require that States adopt and implement 
regulations for an enhanced I/M program in certain areas. Based upon 
EPA's review of Delaware's submittal, EPA believes Delaware has not 
completely satisfied all aspects of the Act and the November 1992 I/M 
Rule. EPA has cited the deficiencies of Delaware's low enhanced I/M 
program, below. EPA proposes to conditionally approve the SIP if 
Delaware commits within 30 days of this proposal to correct the 
deficiencies identified by this document by a date certain within 1 
year of the final conditional ruling. If Delaware corrects the 
deficiencies by that date, and submits a new SIP revision, EPA will 
conduct a rulemaking to fully approve the revision. Each of the 
conditions must be fulfilled by Delaware and submitted to EPA as an 
amendment to Delaware's I/M SIP revision. If such commitment is not 
made within 30 days, EPA proposes in the alternative to disapprove the 
SIP revision. If Delaware does make a timely commitment, but the 
conditions are not met by the specified date within 1 year, EPA 
proposes that this rulemaking will convert to a final disapproval. EPA 
would notify Delaware by letter that the conditions have not been met 
and that the conditional approval has converted to a disapproval.

Applicability--40 CFR 51.350

    Sections 182(c)(3) and 184(b)(1)(A) of the Act and 40 CFR 51.350 
require all areas that are classified as serious or worse nonattainment 
areas and states in the OTR which contain MSAs or parts thereof with 
populations of 100,000 or more to implement an enhanced I/M program. 
Areas classified as marginal for ozone or moderate for CO shall meet 
the requirements of a basic I/M program. Delaware is part of the OTR. 
Kent and New Castle are Delaware counties that fall under the November 
1992 I/M Rule. Kent and New Castle Counties are classified as severe 
nonattainment for ozone and are implementing a low enhanced I/M 
program.
    The federal I/M regulation requires that legislation authorizing 
the program shall not sunset prior to the attainment deadline. 
Delaware's legislation, 7 Delaware Code, Chapter 67, Section 6702 
provides authority to implement the program. However, this legislation 
is open ended and does not specify a date certain up to which the 
program is to continue. EPA needs confirmation through a commitment or 
statement by an authorized Delaware official that the program shall 
remain in effect for as long as required by law.
    Federal I/M regulation requires that SIPs include a list of the ZIP 
codes of all areas covered by the I/M program. This is not contained in 
the current Delaware SIP submittal. EPA needs to receive a submitted 
document that details the ZIP codes of all areas covered by the I/M 
program.
    Therefore, EPA proposes to conditionally approve the Delaware SIP 
based upon a commitment from Delaware within 30 days, to provide a 
statement from an authorized official that the authority to implement 
Delaware's I/M program as stated above will continue through to 
attainment and to provide ZIP code information for the affected 
counties under the I/M program. Additional information needed to remedy 
the deficiencies in this section is explained in Sec. 51.350 of the I/M 
Rule and the list in the TSD prepared by EPA on this rulemaking.

Enhanced I/M Performance Standard--40 CFR 51.351

    In accordance with the Act and with the November 1992 I/M Rule, the 
enhanced I/M program must be designed and implemented to meet or exceed 
a minimum performance standard, which is expressed as emission levels 
in area-wide average grams per mile (gpm) for certain pollutants. The 
performance standard shall be established using local characteristics, 
such as vehicle mix and local fuel controls, and the following 
parameters: network type, start date, test frequency, model year 
coverage, vehicle type coverage, exhaust emission test type, emission 
standards, emissions control device, evaporative system function 
checks, stringency, waiver rate, compliance rate, and evaluation date. 
The emission levels achieved by the Delaware's program design shall be 
calculated using the most current version, at the time of submittal, of 
the EPA mobile source emissions factor model. Areas shall meet the 
performance standard for the pollutants which cause them to be subject 
to enhanced I/M requirements. In the case of ozone nonattainment areas, 
the performance standard must be met for both NO<INF>X and HC. The 
Delaware submittal must meet the low enhanced I/M performance standard 
for HC and NO<INF>X in Kent and New Castle Counties.
    The Delaware submittal includes a modeling demonstration of the 
performance standard that uses the following program design parameters. 
EPA here notes that not all of Delaware's parameter assumptions are 
acceptable, and as a condition of this rulemaking Delaware must remodel 
its program and demonstrate compliance with the I/M performance 
standard:

------------------------------------------------------------------------
               Parameter                        Delaware's program      
------------------------------------------------------------------------
Network Type...........................  Centralized test-only.         
Start Date.............................  1983 for existing programs;    
                                          1995 for area subject to the  
                                          1990 CAA.                     

[[Page 5364]]

                                                                        
Frequency..............................  Biennial.                      
Model Years............................  1968 and beyond.               
Vehicle type coverage..................  Light duty gasoline vehicles   
                                          (LDGV), Light duty gasoline   
                                          trucks 1 & 2 (LDT1, LDT2).    
Exhaust emission test type.............  Idle testing of all covered    
                                          vehicles.                     
Emission standards.....................  Hydrocarbons: 220 ppm as hexane
                                          carbon monoxide: 1.2%.        
Emission control.......................  Pressure test and visual check 
                                          of fuel inlet restrictor, gas 
                                          cap, catalytic convertor For: 
                                          1968+ LDGV, 1970+ LDGT1 &     
                                          LDGT2.                        
Evaporative System.....................  Pressure decay test for above  
                                          vehicle types.                
Stringency rate........................  20% Pre 1981 models.           
 Waiver rate...........................  3%.                            
Compliance rate........................  96%.                           
Evaluation dates.......................  1996, 1999, 2002, 2005, and    
                                          2007.                         
------------------------------------------------------------------------

    The federal I/M rule requires on-road testing of at least 0.5% of 
the subject vehicle population, or 20,000 whichever is less, as a 
supplement to the periodic inspection required by the rule. Delaware 
does not have adopted regulations that implement an on-road testing 
program. Delaware will need to adopt regulations requiring on-road 
testing. Therefore, EPA proposes to conditionally approve the Delaware 
SIP based on receiving within 30 days of the publication of this 
notice, Delaware's commitment to submit to EPA by a date certain, 
within 1 year of the final conditional rulemaking, adopted regulations 
that implement an on-road vehicle testing program as called out in 
Sec. 51.351(b) of the November 1992 I/M Rule. Additional information 
needed to remedy the deficiencies in this section is explained in 
Sec. 51.351 of the I/M Rule and the list in the TSD.

Network Type and Program Evaluation--40 CFR 51.353

    The enhanced program must include an ongoing evaluation to quantify 
the emission reduction benefits of the program, and to determine if the 
program is meeting the requirements of the Act and the federal I/M 
regulations. The SIP shall include details on the program evaluation 
and shall include a schedule for submittal of biennial evaluation 
reports, data from a State monitored or administered mass emissions 
test of at least 0.1% of the vehicles subject to inspection each year, 
a description of the sampling methodology, the data collection and 
analysis system and the legal authority enabling the evaluation 
program. In addition to these requirements, Delaware is required, in 
accordance with this section of the November 1992 I/M Rule, to provide 
in the biennial report, the results of undercover surveys of inspector 
effectiveness related to identifying vehicles in need of repair. Also, 
Delaware is required, in its biennial reports, to provide local fleet 
emissions factors in assessing the actual effectiveness of the I/M 
program.
    The November 1992 I/M Rule requires that SIPs include 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.
    Delaware has legal authority to operate a motor vehicle program as 
stated in 7 Delaware Code, Chapter 60, Section 6010. However, 
Delaware's submittal contains no narrative description, regulations or 
procedures to address program evaluation; the network type is not 
specified; and there is no commitment that Delaware will in fact 
evaluate the program.
    Regarding program evaluation elements, EPA needs to see evidence 
through procedures and or regulation that the following elements are 
addressed: (1) A provision for the first biennial evaluation to be 
reported to EPA by July 1997; (2) a description of the evaluation 
schedule, protocol, sampling methodology, data collection and analysis, 
and the resources and personnel for the evaluation program.
    Therefore, EPA proposes to conditionally approve the Delaware SIP 
based on receiving within 30 days of the publication of this notice, 
Delaware's commitment to submit to EPA by a date certain, within 1 year 
of the final conditional rulemaking, 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. Additional information needed to 
remedy the deficiencies in this section is explained in Sec. 51.353 of 
the I/M Rule and the checklist in the TSD.

Adequate Tools and Resources--40 CFR 51.354

    The federal regulation requires Delaware to demonstrate that 
adequate funding of the program is available. A portion of the test fee 
or separately assessed per vehicle fee shall be collected, placed in a 
dedicated fund and used to finance the program. Alternative funding 
approaches are acceptable if demonstrated that the funding can be 
maintained. Reliance on funding from Delaware or local general fund is 
not acceptable unless doing otherwise would be a violation of 
Delaware's constitution. The SIP shall include a detailed budget plan 
which describes the source of funds for personnel, program 
administration, program enforcement, and purchase of equipment. The SIP 
shall also detail the number of personnel dedicated to the quality 
assurance program, data analysis, program administration, enforcement, 
pubic education and assistance and other necessary functions.
    Delaware's SIP submittal does not provide a description of 
resources. EPA is aware that Delaware has funding through the 1993 
House Bill 360 which dedicated 2.8 million dollars from state traffic 
fines/violations to be used for the enhanced I/M program. However, a 
copy of the enabling legislation for these funds was not included in 
Delaware's submittals pending before EPA. EPA needs to receive a copy 
of the document under official cover as well as additional details on 
how the program is funded. It is not clear what monies are used for 
current program operation, pressure test equipment, and where funding 
will come from to purchase equipment to perform the required mass based 
transient test. Delaware needs to provide these details.
    Therefore, EPA proposes to conditionally approve the Delaware SIP 
based on receiving within 30 days of the publication of this notice, 
Delaware's commitment to submit to EPA by a date

[[Page 5365]]

certain, within 1 year of the final conditional rulemaking, a detailed 
budget plan which describes the source of funds for personnel, program 
administration, program enforcement, and purchase, of equipment. This 
submission must also include information on the number of personnel 
dedicated to the quality assurance program, data analysis, program 
administration, enforcement, public education and assistance and other 
necessary functions. Additional information required to remedy the 
deficiencies in this section is explained in Sec. 51.354 of the I/M 
Rule and in the TSD.

Test Frequency and Convenience--40 CFR 51.355

    The enhanced I/M performance standard assumes an annual test 
frequency, however, other schedules may be approved if the performance 
standard is achieved. The SIP shall describe the test year selection 
scheme, how the test frequency is integrated into the enforcement 
process and shall include the legal authority, regulations or contract 
provisions to implement and enforce the test frequency. The program 
shall be designed to provide convenient service to the motorist by 
ensuring short wait times, short driving distances and regular testing 
hours.
    Delaware has stated that its program is a biennial testing program, 
but Delaware does not have adopted regulations or a narrative 
description of the program test frequency or what mechanisms are in 
place to insure short wait times for the motorist during program 
operation. Furthermore, the Delaware SIP does not identify safeguards 
to ensure vehicles will be tested on schedule. The Delaware SIP 
provides no regulations that require testing stations to test any 
subject vehicle presented for a test during the station's operating 
hours.
    Therefore, EPA proposes to conditionally approve the Delaware SIP 
based on receiving within 30 days of the publication of this notice, 
Delaware's commitment to submit to EPA by a date certain, within 1 year 
of the final conditional rulemaking, 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. Additional information needed to remedy the 
deficiencies in this section is explained in Sec. 51.355 of the I/M 
Rule and in the TSD.

Vehicle Coverage--40 CFR 51.356

    The performance standard for enhanced I/M programs assumes coverage 
of all 1968 and later model year light duty vehicles and light duty 
trucks up to 8,500 pounds Gross Vehicle Weight Rating (GVWR), and 
includes vehicles operating on all fuel types. Other levels of coverage 
may be approved if the necessary emission reductions are achieved. 
Vehicles registered or required to be registered within the I/M program 
area boundaries, and fleets primarily operated within the I/M program 
area boundaries and belonging to the covered model years and vehicle 
classes comprise the subject vehicles. Fleets may be officially 
inspected outside of the normal I/M program test facilities, if such 
alternatives are approved by the program administration, but shall be 
subject to the same test requirements using the same quality control 
standards as non-fleet vehicles and shall be inspected in independent, 
test-only facilities, according to the requirements of 40 CFR 
51.353(a). Vehicles which are operated on federal installations located 
within an I/M program area shall be tested, regardless of whether the 
vehicles are registered in state or local I/M area.
    The federal I/M program regulation requires that SIPs include the 
legal authority or rule necessary to implement and enforce the vehicle 
coverage requirement, a detailed description of the number and types of 
vehicles to be covered by the program, and a plan for how those 
vehicles are to be identified including vehicles that are routinely 
operated in the area but that may not be registered in the area. There 
must also be a description of any special exemptions including the 
percentage and number of vehicles to be impacted by the exemption.
    Delaware's current submission provides no breakdown by model year 
and weight. Since only gasoline powered internal combustion engines are 
subject to the program as provided in Delaware regulations 26 and 33, 
fuel type is not an issue. Additionally, the Delaware SIP submittal 
pending before EPA does not provide for 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. It is 
assumed that fleet vehicles are covered in the current regulations, 
however, no provisions for fleet testing are in the regulations and no 
authority to provide for fleet testing is given. There are no 
provisions to address testing vehicles registered in other program 
areas. The Delaware SIP sumittal does not address the federal fleet 
inspection program. Delaware's regulations provide for vehicle 
exemptions from its I/M program, however, the Delaware SIP submittal 
does not include an estimate of vehicles or a percentage of the subject 
fleet and no accounting is made in Delaware's emissions reduction 
analysis.
    EPA proposes to conditionally approve the Delaware SIP based on 
receiving within 30 days of the publication of this notice, Delaware's 
commitment to submit to EPA by a date certain, within 1 year of the 
final conditional rulemaking, 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. 
Delaware also needs to provide information on exempted vehicles 
regarding number, fleet percentage and account for them in its 
emissions reduction analysis. Additional information needed to remedy 
deficiencies noted in this section is explained in Sec. 51.356 of the 
I/M Rule and in the TSD.

Test Procedures and Standards--40 CFR 51.357

    Written test procedures and pass/fail standards shall be 
established and followed for each model year and vehicle type included 
in the program. Test procedures and standards are detailed in 40 CFR 
51.357 and in the EPA document entitled ``High-Tech I/M Test 
Procedures, Emissions Standards, Quality Control Requirements, and 
Equipment Specifications'', EPA-AA-EPSD-IM-93-1, dated April 1994. The 
federal I/M regulations also require vehicles that have been altered 
from their original certified configuration (i.e., engine or fuel 
switching) to be tested in the same manner as other subject vehicles.
    Delaware has provided detailed test procedures for each test as 
well as pass/

[[Page 5366]]

fail standards for each applicable model year for each test. However, 
Delaware needs to assure certain procedures conform with procedures 
contained in Appendix B to Subpart S of the November 5, 1992 November 
1992 I/M Rule. Also regulations/procedures need to be provided that: 
(1) Ensure that initial tests are performed with no prior repair or 
adjustment at the facility; (2) provide access to permit owner 
observation; (3) provide for rejection of vehicles with missing 
components or unsafe conditions; (4) provide for appropriate retesting 
of primary and secondary components; and (5) address fuel and engine 
switching. Delaware must ensure that its evaporative test standards 
match EPA approved standards.
    EPA proposes to conditionally approve the Delaware SIP based on 
receiving within 30 days of the publication of this notice, Delaware's 
commitment to submit to EPA by a date certain, within 1 year of the 
final conditional rulemaking, regulations/procedures that address the 
above deficiencies. Additional information needed to remedy the 
deficiencies in this section is explained in Sec. 51.357 of the I/M 
Rule and in the TSD.

Test Equipment--40 CFR 51.358

    Computerized test systems are required for performing any 
measurement on subject vehicles. The federal I/M regulation requires 
that SIP submissions include written technical specifications for all 
test equipment used in the program. The specifications shall describe 
the emission analysis process, the necessary test equipment, the 
required features, and written acceptance testing criteria and 
procedures.
    Delaware's submission contains written technical specifications 
that addresses pass/fail criteria, calibration adjustments and quality 
control for idle testing. However no test specifications are provided 
for the idle or pressure tests. The State's submission does not 
describe equipment acceptance testing criteria and procedures. The test 
equipment is capable of testing all subject vehicles, however written 
test equipment specifications are not contained in the submission. 
Additionally, there is no commitment to update test equipment and no 
description of the test system configuration.
    EPA proposes to conditionally approve the Delaware SIP based on 
receiving within 30 days of the publication of this notice, Delaware's 
commitment to submit to EPA by a date certain, within 1 year of the 
final conditional rulemaking, regulations/procedures that address the 
general deficiencies noted above. Additional information needed to 
remedy the deficiencies in this section is explained in Sec. 51.358 of 
the I/M Rule and in the TSD.

Quality Control--40 CFR 51.359

    Quality control measures shall insure that emissions measurement 
equipment is calibrated and maintained properly and that inspection, 
calibration records, and control charts are accurately created, 
recorded and maintained.
    Delaware has provided a description of quality control measures for 
emissions measurement equipment, however, the remaining requirements of 
this section have not been addressed. These include but are not limited 
to: A quality control procedures manual or related document; proper 
calibration measures and associated record keeping; preventive 
maintenance measures/provisions for proper recording of quality control 
information. In addition, the Delaware SIP does not contain provisions 
for maintenance, calibration and insuring test accuracy; equipment 
specifications; for steady-state and evaporative test equipment.
    EPA proposes to conditionally approve the Delaware SIP based on 
receiving within 30 days of the publication of this notice, Delaware's 
commitment to submit to EPA by a date certain, within 1 year of the 
final conditional rulemaking, regulations/procedures and/or documents 
that address the general deficiencies noted above. Additional 
information needed to remedy the deficiencies in this section is 
explained in Sec. 51.359 of the I/M Rule and the checklist in the TSD.

Waivers & Compliance via Diagnostic Inspection--40 CFR 51.360

    The federal I/M regulations allows for the issuance of a waiver, 
which is a form of compliance with the program requirements that allows 
a motorist to comply without meeting the appropriate test standards. 
For enhanced I/M programs, an expenditure of at least $450 in repairs, 
adjusted annually to reflect the change in the Consumer Price Index 
(CPI) as compared to the CPI for 1989, is required in order to qualify 
for a waiver. Waivers can only be issued after a vehicle has failed a 
retest performed after all qualifying repairs have been made. Any 
available warranty coverage must be used to obtain repairs before 
expenditures can be counted toward the cost limit. Tampering related 
repairs shall not be applied toward the cost limit. Repairs must be 
appropriate to the cause of the test failure. The federal regulation 
allows for compliance via a diagnostic inspection after failing a 
retest on emissions and requires quality control of waiver assurance. 
The SIP must set a maximum waiver rate and must describe corrective 
action that would be taken if the waiver rate exceeds that committed to 
in the SIP.
    Delaware has provisions in its regulations for issuance of waivers 
and has demonstrated that it has the necessary legal authority to issue 
the waivers and administrate the waiver system. It establishes the 
minimum dollar expenditure amounts for waivers to be issued in the 
areas that are required to implement the basic I/M program. However, in 
Kent and New Castle Counties, where the low enhanced program applies, 
the same basic waiver rate is in place. This does not meet the minimum 
requirement of $450 which is a statutory requirement of the Act.
    Time extensions are part of Delaware's rule provisions, but these 
provisions only partially fulfill the requirements regarding time 
extensions under this section. The Delaware SIP provides for the 
performance of a documented physical and functional analysis and for 
the cut point requirements which are consistent with EPA requirements. 
However, the Delaware SIP contains provisions that only partially 
fulfill the requirements for the quality control of waiver issuance.
    EPA proposes to conditionally approve the Delaware SIP based on 
receiving within 30 days of the publication of this notice, Delaware's 
commitment to submit to EPA by a date certain, within 1 year of the 
final conditional rulemaking, regulations/procedures and/or documents 
that address the general deficiencies mentioned above. Additional 
information needed to remedy the deficiencies in this section is 
explained in Sec. 51.360 of the I/M Rule and in the TSD.

Motorist Compliance Enforcement--40 CFR 51.361

    The federal regulation requires that compliance shall be ensured 
through the denial of motor vehicle registration in enhanced I/M 
programs unless an exception for use of an existing alternative is 
approved. SIPs shall provide information concerning the enforcement 
process, legal authority to implementation and enforce the program, and 
a commitment to a compliance rate to be used for modeling purposes and 
to be maintained in practice.

[[Page 5367]]

    As a condition for this approval, Delaware needs to provide EPA 
with the specific details of its Motorist Compliance Enforcement 
program. Although Delaware has a registration denial system, under the 
basic I/M program, no details have been provided. The SIP submittal 
must include a commitment to maintain a specified enforcement level to 
be used for modeling purposes.
    EPA proposes to conditionally approve the Delaware SIP based on 
receiving within 30 days of the publication of this notice, Delaware's 
commitment to submit to EPA by a date certain, within 1 year of the 
final conditional rulemaking, regulations/procedures and/or documents 
that address the general deficiencies noted above. Additional 
information needed to remedy the deficiencies noted above is explained 
in Sec. 51.361 of the I/M Rule and in the TSD.

Motorist Compliance Enforcement Program Oversight--40 CFR 51.362

    The federal I/M regulation requires that the enforcement program 
shall be audited regularly and shall follow effective program 
management practices, including adjustments to improve operation when 
necessary. The SIP shall include quality control and quality assurance 
procedures to be used to insure the effective overall performance of 
the enforcement system. An information management system shall be 
established which will characterize, evaluate and enforce the program.
    Although Delaware has motorist compliance enforcement oversight 
procedures/regulations, they were not provided in the SIP submittal, 
specifically, 7 Delaware Code, Chapter 67 for enforcement procedures. 
These need to be provided to EPA along with the procedures manual.
    EPA proposes to conditionally approve the Delaware SIP based on 
receiving within 30 days of the publication of this notice, Delaware's 
commitment to submit to EPA by a date certain, within 1 year of the 
final conditional rulemaking, regulations/procedures and/or documents 
that address the general deficiencies noted above. Additional 
information needed to remedy the deficiencies noted above is explained 
in Sec. 51.362 of the I/M Rule and in the TSD.

Quality Assurance--40 CFR 51.363

    An ongoing quality assurance program shall be implemented to 
discover, correct, and prevent fraud, waste and abuse in the program. 
The program shall include covert and overt performance audits of the 
inspectors, audits of station and inspector records, equipment audits, 
and formal training of all State I/M enforcement officials and 
auditors. A description of the quality assurance program which includes 
written procedure manuals on the above discussed items must be 
submitted as part of the SIP.
    As a condition for approval, Delaware needs to provide the EPA 
details of its existing quality assurance program that fulfill the 
detailed requirements listed in Sec. 51.363 of the I/M rule.
    EPA proposes to conditionally approve the Delaware SIP based on 
receiving within 30 days of the publication of this notice, Delaware's 
commitment to submit to EPA by a date certain, within 1 year of the 
final conditional rulemaking, regulations/procedures and/or documents 
that address the general deficiencies of this section. Additional 
information needed to remedy the deficiencies in this section is 
explained in Sec. 51.363 of the I/M Rule and in the TSD.

Enforcement Against Contractors, Stations and Inspectors--40 CFR 51.364

    Enforcement against licensed stations, contractors, and inspectors 
shall include swift, sure, effective and consistent penalties for 
violation of program requirements. The federal I/M regulation requires 
the establishment of minimum penalties for violations of program rules 
and procedures which can be imposed against stations, contractors and 
inspectors. The legal authority for establishing and imposing 
penalties, civil fines, license suspensions and revocations must be 
included in the SIP. State quality assurance officials shall have the 
authority to temporarily suspend station and/or inspector licenses 
immediately upon finding a violation that directly affects emission 
reduction benefits, unless constitutionally prohibited. An official 
opinion explaining any state constitutional impediments to immediate 
suspension authority must be included in the submittal. The SIP shall 
describe the administrative and judicial procedures and 
responsibilities relevant to the enforcement process, including which 
agencies, courts and jurisdictions are involved, who will prosecute and 
adjudicate cases and the resources and sources of those resources which 
will support this function.
    7 Delaware Code, Chapter 60, section 6010 provides general 
authority to Secretary to adopt regulations necessary to implement 
program. However, Delaware has provided no procedures that address any 
requirements of this section. No specific regulation is provided for 
enforcement against stations, inspectors, or contractors, nor is a 
penalty schedule provided. Delaware has not demonstrated that it has 
existing regulations under the basic I/M program.
    The EPA proposes to conditionally approve the Delaware SIP based on 
receiving within 30 days of the publication of this notice, Delaware's 
commitment to submit to EPA by a date certain, within 1 year of the 
final conditional rulemaking, adopted regulations, rules and procedures 
that address the deficiencies of this section. Additional information 
needed to remedy the deficiencies in this section is explained in 
Sec. 51.364 of the I/M Rule and in the TSD.

Data Collection Section--40 CFR 51.365

    Accurate data collection is essential to the management, evaluation 
and enforcement of an I/M program. The federal I/M regulation requires 
data to be gathered on each individual test conducted and on the 
results of the quality control checks of test equipment required under 
40 CFR Sec. 51.359.
    Delaware's SIP did not address data collection. Delaware needs to 
either demonstrate that it has existing data procedures that meet the 
requirements of this section or develop and submit regulations/
provisions/procedures that meet this requirement.
    The EPA proposes to conditionally approve the Delaware SIP based on 
receiving within 30 days of the publication of this notice, Delaware's 
commitment to submit to EPA by a date certain, within 1 year of the 
final conditional rulemaking, adopted regulations/procedures that 
address the deficiencies of this section. Additional information needed 
to remedy the deficiencies in this section is explained in Sec. 51.365 
of the I/M Rule and in the TSD.

Data Analysis and Reporting--40 CFR 51.366

    Data analysis and reporting are required to allow for monitoring 
and evaluation of the program by Delaware and EPA. The federal I/M 
regulation requires annual reports to be submitted which provide 
information and statistics and which summarize activities performed for 
each of the following programs: Testing, quality assurance, quality 
control and enforcement. These reports are to be submitted by July of 
each year and shall provide statistics for the period from January to 
December of the previous year. A separate biennial report shall be 
submitted to EPA which addresses changes in program design, 
regulations,

[[Page 5368]]

legal authority, program procedures and any weaknesses in the program 
found during the two year period and how these problems will be or have 
been corrected.
    Delaware's SIP did not address data analysis and reporting 
provisions. Delaware needs to either show EPA that it has existing data 
analysis procedures that meet the requirements of this section or 
develop and submit regulations/provisions/ procedures that meet this 
requirement.
    The EPA proposes to conditionally approve the Delaware SIP based on 
receiving within 30 days of the publication of this notice, Delaware's 
commitment to submit to EPA by a date certain, within 1 year of the 
final conditional rulemaking, adopted regulations/procedures that 
address the deficiencies of this section. Additional information needed 
to remedy the deficiencies in this section is explained in Sec. 51.366 
of the I/M Rule and in the TSD.

Inspector Training and Licensing or Certification--40 CFR 51.367

    The federal I/M regulations requires all inspectors to be formally 
trained and licensed or certified to perform inspections.
    Regulation 26, Section 8 and Regulation 33, Section 8 requires 
certification of motor vehicle officers. These regulations also have 
provisions stipulating that motor vehicle officers complete a training 
course approved by the Delaware Division of Motor Vehicles. However, no 
description of the training course is given in the submission.
    The EPA proposes to conditionally approve the Delaware SIP based on 
receiving within 30 days of the publication of this notice, Delaware's 
commitment to submit to EPA by a date certain, within 1 year of the 
final conditional rulemaking, adopted regulations/procedures that 
address the deficiencies of this section. Additional information needed 
to remedy the deficiencies in this section is explained in Sec. 51.367 
of the I/M Rule and in the TSD.

Public Information and Consumer Protection--40 CFR 51.368

    The federal I/M regulation requires the SIP to include public 
information and consumer protection.
    Delaware needs to provide provisions/measures that it will 
implement to protect the consumer and provide for public awareness.
    The EPA proposes to conditionally approve the Delaware SIP based on 
receiving within 30 days of the publication of this notice, Delaware's 
commitment to submit to EPA by a date certain, within 1 year of the 
final conditional rulemaking, adopted regulations/procedures that 
address the deficiencies of this section. Additional information needed 
to remedy the deficiencies in this section is explained in Sec. 51.368 
of the I/M Rule and in the TSD.

Improving Repair Effectiveness--40 CFR 51.369

    Effective repairs are the key to achieving program goals. The 
federal regulation requires states to take steps to ensure that the 
capability exists in the repair industry to repair vehicles. The SIP 
must include a description of the technical assistance program to be 
implemented, a description of the procedures and criteria to be used in 
meeting the performance monitoring requirements required in the federal 
regulation and a description of the repair technician training 
resources available in the community.
    EPA understands that the Delaware Department of Natural Resources 
and Environmental Control (DNREC) is jointly developing a technician 
training course with the Delaware Community College. The Delaware SIP 
must include information on this program as well as provisions for 
monitoring performance of repair facilities.
    The EPA proposes to conditionally approve the Delaware SIP based on 
receiving within 30 days of the publication of this notice, Delaware's 
commitment to submit to EPA by a date certain, within 1 year of the 
final conditional rulemaking, adopted regulations/procedures that 
address the deficiencies of this section. Additional information needed 
to remedy the deficiencies in this section is explained in Sec. 51.369 
of the I/M Rule and in the TSD.

Compliance with Recall Notices--40 CFR 51.370

    The federal regulation requires that Delawares establish methods to 
ensure that vehicles which are subject to enhanced I/M and are included 
in an emission related recall receive the required repairs prior to 
completing the emission test and/or renewing the vehicle registration.
    Delaware must address all the provisions for recall notices under 
the federal regulation and noted in the TSD and as required under 
Sec. 51.370 of the November 1992 I/M Rule.
    The EPA proposes to conditionally approve the Delaware SIP based on 
receiving within 30 days of the publication of this notice, Delaware's 
commitment to submit to EPA by a date certain, within 1 year of the 
final conditional rulemaking, adopted regulations/procedures that 
address the deficiencies in this Section. Additional information needed 
to remedy the deficiencies in this section is explained in Sec. 51.370 
of the I/M Rule and in the TSD.

On-Road Testing--40 CFR 51.371

    On-road testing is required in enhanced I/M areas. The use of 
either remote sensing devices (RSD) or roadside pullovers including 
tailpipe emission testing can be used to meet the federal regulations. 
The program must include on-road testing of 0.5% of the subject fleet 
or 20,000 vehicles, whichever is less, in the nonattainment area or the 
I/M program area. Motorists that have passed an emissions test and are 
found to be high emitters as a result of an on-road test shall be 
required to pass an out-of-cycle test.
    No legal authority to implement an on-road testing program was 
included in the Delaware SIP. The general authority to implement a 
program may be sufficient to require on-road testing, however, Delaware 
has no regulations in place to implement on-road testing.
    The EPA proposes to conditionally approve the Delaware SIP based on 
receiving within 30 days of the publication of this notice, Delaware's 
commitment to submit to EPA by a date certain, within 1 year of the 
final conditional rulemaking, adopted regulations/procedures that 
address the deficiencies of this section. Additional information needed 
to remedy the deficiencies in this section is explained in Sec. 51.371 
of the I/M Rule and in the TSD.

State Implementation Plan Submittals/ Submission Deadlines--40 CFR 
51.372 through 51.373

    Delaware's submittal contains the following: (1) The legislative 
authority to implement the program; (2) Regulation 33 that adds a 
requirement for a pressure test and anti-tampering checks on light duty 
vehicles 1968 and newer and light duty trucks 1970 and newer in Kent 
and New Castle Counties; (3) Regulation 26 that adds a requirement that 
repairs on 1981 and later model year vehicles be performed by certified 
repair technicians to qualify for a waiver. This program became 
effective on January 1, 1997; and (4) the low enhanced performance 
standard evaluation. Delaware has indicated that its pressure test and 
anti-tampering program was effective as of January 1, 1995.

[[Page 5369]]

    Delaware has demonstrated that the program meets the low-enhanced 
performance standard. Delaware has shown that program will achieve an 
air quality benefit. However, there are some specific administrative 
requirements of the rule that they have not addressed. Delaware has not 
adequately addressed: The waiver requirements; on-road testing 
requirements; program evaluation using mass based transient test 
procedure; specifics on network type and test frequency; sufficient 
quality control procedures and requirements; complete equipment 
specifications; specific enforcement requirements; public information 
and consumer protection requirements; sufficient enforcement authority; 
sufficient test document through test memoranda and procedural 
memoranda.
    EPA understands that Delaware has adopted certain legislation and 
procedures that were not included in the submittals pending before EPA. 
Once legislation, regulations and/or procedures have gone through the 
adoption process, they will need to be officially submitted to EPA as a 
SIP revision supplement to the I/M SIP. Where new regulations/
procedures are developed, the public notice and hearing process in 
section 110 of Act must be followed. EPA has a list of missing 
procedural manuals and enabling legislation in the TSD prepared on this 
rulemaking. EPA believes that most of the noted deficiencies can be 
addressed through regulation amendments and procedure manuals. The one 
exception is the lack of provisions establishing a $450 waiver limit as 
prescribed in the Act. All states with enhanced programs are required 
to have this limit. EPA also remains concerned about how Delaware can 
maintain a 3% waiver limit using a $200/$75 waiver amount. EPA believes 
that the extension of the waiver deadline called out in the I/M rule, 
as revised in 60 FR 48029, will afford Delaware the opportunity to 
improve technician training so that by 1998, the majority of vehicles 
would be repaired below the CPI adjusted $450 minimum waiver amount. 
Nevertheless, Delaware must take corrective action to address the 
waiver requirements and must also must take corrective action if the 
waiver rate exceeds that provided for in the Delaware SIP.
    Therefore, EPA proposes to conditionally approve the Delaware SIP 
based upon a commitment from Delaware within 30 days, to adopt and 
submit final regulations to EPA and cure all of the deficiencies 
related to this section of the November 1992 I/M Rule as explained 
above, by a date certain within 1 year. If Delaware fails to make the 
commitment, EPA proposes in the alternative to disapprove the SIP. If 
Delaware fails to meet the condition by the date specified, EPA 
proposes to convert this rule making to a disapproval at that time by 
letter.
    EPA's review of the material indicates that with the conditions 
described above, Delaware has adopted a low enhanced I/M program in 
accordance with the requirements of the Act. EPA is proposing to 
conditionally approve the Delaware I/M SIP revision which was submitted 
to this office on February 24, 1995 and November 30, 1995 subject to 
the conditions described above. EPA is soliciting public comments on 
the issues discussed in this notice or on other relevant matters. 
Interested parties may participate in the Federal rulemaking procedure 
by submitting written comments to the EPA Regional offices listed in 
the Addresses section of this notice.

Proposed Action

    EPA proposes to conditionally approve the SIP if Delaware commits 
within 30 days of this proposal to correct the deficiencies identified 
by this document by a date certain within 1 year of the final 
conditional ruling. If Delaware corrects the deficiencies by that date, 
and submits a new SIP revision, EPA will conduct rulemaking to fully 
approve the revision. Each of the conditions must be fulfilled by 
Delaware and submitted to EPA as an amendment to Delaware's I/M SIP 
revision. If such commitment is not made within 30 days, EPA proposes 
in the alternative to disapprove the SIP revision. If Delaware does 
make a timely commitment, but the conditions are not met by the 
specified date within 1 year, EPA proposes that this rulemaking will 
convert to a final disapproval. EPA would notify Delaware by letter 
that the conditions have not been met and that the conditional approval 
has converted to a disapproval.
    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.
    SIP approvals under section 110 and subchapter I, part D of the 
requirements that Delaware 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 Act, preparation of a flexibility analysis would 
constitute Federal inquiry into the economic reasonableness of State 
action. The 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 Delaware's failure to meet the commitment, it 
will not affect any existing State requirements applicable to small 
entities. Federal disapproval of Delaware's submittal would not affect 
its state-enforceability. Moreover, EPA's disapproval of the submittal 
would not impose a new Federal requirement. Therefore, EPA certifies 
that should this approval convert to a disapproval, this disapproval 
action would not have a significant impact on a substantial number of 
small entities because it would not remove existing requirements nor 
would it substitute a new federal requirement.
    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 that includes a Federal mandate that may result in estimated 
costs to Delaware, local, or tribal governments in the aggregate; or to 
the 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 proposed/promulgated 
does not include a Federal mandate that may result in estimated 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 requirements under State or local law, and imposes no new 
Federal requirements. Accordingly, no additional costs to State, local, 
or tribal governments, or to the private sector, result from this 
action.
    This action has been classified as a Table 3 action for signature 
by the

[[Page 5370]]

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.
    If Delaware fails to meet any of the conditions of this approval 
action, the EPA Regional Administrator would directly make a finding, 
by letter, that the conditional approval had converted to a disapproval 
and the clock for imposition of sanctions under section 179(a) of the 
Act would start as of the date of the letter. Subsequently, a notice 
would be published in the Federal Register announcing that the SIP 
revision has been disapproved.
    The Administrator's decision to approve or disapprove the Delaware 
I/M SIP revision will be based on whether it meets the requirements of 
section 110(a)(2) (A)-(K) of the Clean Air Act, as amended, and EPA 
regulations in 40 CFR Part 51.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Hydrocarbons, Incorporation by reference, Intergovernmental relations, 
Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements.

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

    Dated: January 24, 1997.
W. Michael McCabe,
Regional Administrator, Region III.
[FR Doc. 97-2847 Filed 2-4-97; 8:45 am]
BILLING CODE 6560-50-P


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