52460 Federal Register / Vol. 71, No. 172 / Wednesday, September 6, 2006 / Rules and Regulations 

a compensable evaluation based on a 

decreased FEV–1/FVC ratio. 

* * * * * 

■ 3. Section 4.100 is added to read as 

follows: 

§ 4.100 Application of the evaluation 

criteria for diagnostic codes 7000–7007, 

7011, and 7015–7020. 

(a) Whether or not cardiac 

hypertrophy or dilatation (documented 

by electrocardiogram, echocardiogram, 

or X-ray) is present and whether or not 

there is a need for continuous 

medication must be ascertained in all 

cases. 

(b) Even if the requirement for a 10% 

(based on the need for continuous 

medication) or 30% (based on the 

presence of cardiac hypertrophy or 

dilatation) evaluation is met, METs 

testing is required in all cases except: 

(1) When there is a medical 

contraindication. 

(2) When the left ventricular ejection 

fraction has been measured and is 50% 

or less. 

(3) When chronic congestive heart 

failure is present or there has been more 

than one episode of congestive heart 

failure within the past year. 

(4) When a 100% evaluation can be 

assigned on another basis. 

(c) If left ventricular ejection fraction 

(LVEF) testing is not of record, evaluate 

based on the alternative criteria unless 

the examiner states that the LVEF test is 

needed in a particular case because the 

available medical information does not 

sufficiently reflect the severity of the 

veteran’s cardiovascular disability. 

■ 4. Section 4.104, diagnostic code 7101 

is amended by adding a Note (3) to read 

as follows: 

§ 4.104 Schedule of ratings—

cardiovascular system. 

* * * * * 

7101 * * * 

Note (3): Evaluate hypertension separately 

from hypertensive heart disease and other 

types of heart disease. 

* * * * * 

[FR Doc. E6–14732 Filed 9–5–06; 8:45 am] 

BILLING CODE 8320–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2006–0337–200613(f); 

FRL–8216–7] 

Approval and Promulgation of 

Implementation Plans for Kentucky: 

Air Permit Regulations 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is now taking final action 

to approve two of four requested 

revisions to the State Implementation 

Plan (SIP) for the Commonwealth of 

Kentucky submitted to EPA on March 

15, 2001. The two revisions being 

approved today regard two main 

changes to Kentucky’s rules. The first 

change involves the removal and 

separation of rule 401 Kentucky 

Administrative Regulations (KAR) 

50:035 (‘‘Permits’’) into three separate 

rules under a new Chapter 52 (Permits, 

Registrations, and Prohibitory Rules). 

Specifically, these rules are 52:001 

(Definitions for 401 KAR Chapter 52), 

52:030 (Federally-enforceable permits 

for non-major sources), and 52:100 

(‘‘Public, affected state, and U.S. EPA 

review’’). The second change involves 

corrections to grammatical errors in rule 

50:032 (‘‘Prohibitory Rule for Hot Mix 

Asphalt Plants’’) and the removal of rule 

50:032 from Chapter 50 and adding it to 

Chapter 52, under 52:090 (‘‘Prohibitory 

Rule for Hot Mix Asphalt Plants’’). This 

final action also responds to adverse 

comments submitted in response to 

EPA’s proposed rule published on 

December 30, 2002. This final action 

does not address the removal of 401 

KAR 50:030 (‘‘Registration of Sources’’) 

or changes made to 401 KAR 52:080 

(‘‘Regulatory limit on potential to 

emit’’), that was part of the March 15, 

2001, submittal, but which will be 

addressed in a separate action. 

DATES: Effective Date: This rule will be 

effective October 6, 2006. 

ADDRESSES: EPA has established a 

docket for this action under Docket 

Identification No. EPA–R04–OAR–

2006–0337. All documents in the docket 

are listed on the www.regulations.gov 

Web site. Although listed in the index, 

some information is not publicly 

available, i.e., CBI or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

www.regulations.gov or in hard copy at 

the Regulatory Development Section, 

Air Planning Branch, Air, Pesticides and 

Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street, SW., 

Atlanta, Georgia 30303–8960. EPA 

requests that if at all possible, you 

contact the person listed in the FOR

FURTHER INFORMATION CONTACT section to 

schedule your inspection. The Regional 

Office’s official hours of business are 

Monday through Friday, 8:30 to 4:30, 

excluding Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

James Hou, Regulatory Development 

Section, Air Planning Branch, Air, 

Pesticides and Toxics Management 

Division, Region 4, U.S. Environmental 

Protection Agency, 61 Forsyth Street, 

SW., Atlanta, Georgia 30303–8960. The 

telephone number is (404) 562–8965. 

Mr. Hou can also be reached via 

electronic mail at Hou.James@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Today’s Action 

II. Background 

III. Comment and Response 

IV. Final Action 

V. Statutory and Executive Order Reviews 

I. Today’s Action 

EPA is now taking final action to 

approve two of four requested revisions 

to the (SIP) for the Commonwealth of 

Kentucky submitted to EPA on March 

15, 2001, and clarified in a letter dated 

July 18, 2001. The SIP submittal and the 

letter-clarification were submitted by 

the Kentucky Department for 

Environmental Protection, Division of 

Air Quality. The two revisions being 

approved today regard two main 

changes to Kentucky’s rules. The first 

change involves the removal and 

separation of rule 401 Kentucky 

Administrative Regulations (KAR) 

50:035 (‘‘Permits’’) into three separate 

rules under a new Chapter 52 (Permits, 

Registrations, and Prohibitory Rules). 

Specifically, these rules are 52:001 

(Definitions for 401 KAR Chapter 52), 

52:030 (‘‘Federally-enforceable permits 

for non-major sources’’), and 52:100 

(‘‘Public, affected state, and U.S. EPA 

review’’). The second change involves 

corrections to grammatical errors in rule 

50:032 (‘‘Prohibitory Rule for Hot Mix 

Asphalt Plants’’) and the removal of rule 

50:032 from Chapter 50 and adding it to 

Chapter 52, under 52:090 (‘‘Prohibitory 

Rule for Hot Mix Asphalt Plants’’). 

Today’s final action also responds to 

one set of adverse comments submitted 

in response to EPA’s proposed rule 

published on December 30, 2002 (67 FR 

79543). Today’s final action does not 

address the removal of 401 KAR 50:030 


jlentini on PROD1PC65 with RULES
Federal Register / Vol. 71, No. 172 / Wednesday, September 6, 2006 / Rules and Regulations 52461 

(‘‘Registration of Sources’’) or changes 

made to 401 KAR 52:080 (‘‘Regulatory 

limit on potential to emit’’), which will 

be addressed in a separate action. 

Therefore, today’s final action approves 

a total of four rules into the Kentucky 

SIP; 401 KAR 52:001, 401 KAR 52:030, 

401 KAR 52:090, and 401 KAR 52:100 

and the removal of rules 401 KAR 

50:032 and 401 KAR 50:035. This final 

action is consistent with section 110 of 

the Clean Air Act. 

II. Background 

On December 30, 2002, EPA 

simultaneously published a proposed 

rule (67 FR 79543, December 30, 2002) 

and a direct final rule (67 FR 79523, 

December 30, 2002) to approve the 

above described revisions to the 

Kentucky SIP, submitted by Kentucky 

on March 15, 2001. Because EPA 

received one set of adverse comments 

during the public comment period, EPA 

withdrew the direct final rule on 

February 10, 2003 (68 FR 6629). Today, 

EPA is taking final action on the 

Kentucky SIP revisions proposed for 

approval on December 30, 2002, as well 

as responding to the set of adverse 

comments received on that proposed 

action, with the exception of the 

portions of the March 15, 2001, 

submittal noted above. 

III. Response to Comments 

EPA received comments from one 

commenter who opposed the proposed 

revision to the Kentucky SIP published 

on December 30, 2002 (67 FR 79543). A 

summary of the adverse comments 

received on the proposed rule and 

EPA’s response to the comments, is 

presented below. 

Comment: The commenter requests 

that EPA: (1) Reject approval of 401 

KAR 52:001 and 401 KAR 52:100 and 

reject incorporation of these provisions 

into 40 Code of Federal Regulations 

(CFR) Part 52, Subpart S; (2) provide an 

additional comment period if EPA 

proposes to approve any non-emergency 

amendment of 40 CFR part 52, subpart 

S; (3) command that all prevention of 

significant deterioration (PSD) portions 

of 40 CFR part 124 apply to PSD 

permitting actions by Kentucky; and (4) 

cancel all authority that EPA gave to 

Kentucky to issue PSD permits. 

Response: The following response 

will address each of the issues raised in 

the above comment in turn. First, the 

provisions contained in 401 KAR 52:001 

(‘‘Definitions for 401 KAR Chapter 52’’) 

and 401 KAR 52:100 (‘‘Public, affected 

state, and U.S. EPA review’’) are 

required to be a part of the Kentucky 

SIP. Both the definitions and the public 

review provisions are consistent with 

federal requirements for the programs to 

which they apply. Therefore, the 

proposed rules are approvable into the 

Kentucky SIP. As a point of 

clarification, 401 KAR 52:001 and 

52:100 relate specifically to Kentucky’s 

Clean Air Act (CAA) title V permit 

program and Kentucky’s Federally 

Enforceable State Operating Permit 

(FESOP) program. Kentucky’s PSD 

permit rules, found in 401 KAR Chapter 

51, refer to the public review provisions 

of 401 KAR 52:100, but only to the 

extent that such provisions are more 

stringent than the public review 

provisions found in the federal rule, 40 

CFR 51.166(q). 

Second, the Kentucky SIP, like many 

other SIPs, is regularly amended. Most 

recently, EPA proposed revisions to the 

Kentucky SIP on February 10, 2006 (71 

FR 6988). This revision dealt 

specifically with Kentucky’s PSD 

regulations. No public comments were 

received. The commenter failed to state 

any reason why the comment period for 

the present proposal (67 FR 79543) 

should be reopened. 

Third, the commenter’s request to 

expand the applicability of 40 CFR part 

124 is not relevant to the present action 

which does not propose any changes to 

40 CFR part 124. 40 CFR part 124 

governs EPA procedures for certain 

permit actions (e.g., issuance, 

termination), but it does not apply to 

PSD permits issued by approved state 

agencies (40 CFR 124.1(e)). Rather, the 

public review procedures of PSD 

permits issued by an approved state are 

governed by 40 CFR 51.166(q). 

Kentucky’s PSD regulations (401 KAR 

51:017) require that Kentucky follow the 

public review procedures in 40 CFR 

51.166(q), and any more stringent 

requirements existing in 401 KAR 

52:100. 

Fourth, the present action does not 

relate to Kentucky’s authority to issue 

PSD permits, and therefore, EPA cannot 

‘‘cancel’’ Kentucky’s authority to issue 

PSD permits at this time. 

Comment: EPA must act to provide a 

‘‘swift and certain remedy,’’ (1) where 

KAR is different from 40 CFR 52.21(b) 

through (w); or (2) where KAR provides 

less effective technical environmental 

protection, less effective opportunity for 

public participation in the permitting 

process, or less effective legal forums 

and processes for review of questioned 

decisions. 

Response: The proposed SIP revision 

at issue (67 FR 79543) relates only to 

specific portions of the KAR and it does 

not relate to Kentucky’s PSD 

regulations. Therefore, the comment is 

not relevant to the proposed action. 

Nonetheless, as a point of clarification, 

40 CFR 52.21 contains the Federal PSD 

program (i.e., if EPA were administering 

the PSD program). States may meet the 

requirements of the federal regulations 

with different but equivalent rules. As 

noted earlier, Kentucky recently revised 

its PSD program. That revision was 

noticed in the Federal Register and no 

public comments were received. It is not 

clear from the comment what ‘‘swift and 

certain remedy’’ the commenter requests 

EPA to take, but the comment is not 

relevant to the proposed action at issue 

at this time. 

Comment: 401 KAR 52:100 is patently 

and callously contemptuous of the 

intent of the Federal Clean Air Act. 

Response: The commenter fails to 

provide information demonstrating how 

401 KAR 52:100 is ‘‘contemptuous’’ of 

the Clean Air Act (CAA). 401 KAR 

52:100 is consistent with federal 

regulations promulgated pursuant to 

EPA’s authority under the Clean Air 

Act. 

Comment: There appears to be no 

parallel in the CAA or the CFR to 401 

KAR 52:100, Section 2(3)(c), which 

grants the applicant ten (10) days of 

exclusive lawful speech. The 

commenter believes that this provision 

is not consistent with the CAA and 40 

CFR 124.13. The commenter also 

believes that if the applicant cannot 

comment within the same timeframe as 

the public, then the PSD permit should 

not be issued to the applicant. 

Response: As noted earlier, the 

provisions included in 40 CFR part 124 

do not apply to the issuance of PSD 

permits by approved states. With regard 

to the comment about 401 KAR 52:100, 

Section 2(3)(c), a state may satisfy the 

Federal regulations with different but 

equivalent regulations, and a state may 

include additional procedures not 

included in the Federal regulations so 

long as the rule is not less stringent. 

This provision is not less stringent and 

does not impact the public’s ability to 

comment on the proposed action. 401 

KAR 52:100 is equivalent to the Federal 

regulations for the programs to which it 

applies and it is approvable into the 

Kentucky SIP. 

As a point of clarification, this 

additional comment period is not an 

opportunity for the applicant to 

comment on the proposed permit, but 

rather, an opportunity for the applicant 

to respond to public comments received 

during the public comment period. This 

response to comments by the applicant 

is discretionary (i.e., the applicant may 

or may not actually provide such 

comments). Further, the response by the 

applicant is useful for both the 

reviewing agency and the public 

because it establishes a forum in which 


jlentini on PROD1PC65 with RULES
52462 Federal Register / Vol. 71, No. 172 / Wednesday, September 6, 2006 / Rules and Regulations 

the applicant is responding to the 

public’s concerns. The response to 

comments document is made part of the 

public record. Many state permitting 

programs include this provision to 

allow for a forum in which the applicant 

can respond to public comments and 

assist in public understanding of the 

issues in the application. 

Comment: There appears to be no 

effective provision in 401 KAR 52:100 

for extension of comment time. The 

commenter references 40 CFR 124.13, 

which allows for a comment period 

longer than 30 days to give reasonable 

opportunity to reply if such a need for 

time is demonstrated. 

Response: As a general matter, the 

provisions of 40 CFR part 124 apply 

only to EPA and not to approved states. 

For state approved programs, such as 

CAA title V or PSD permit programs, the 

applicable public participation 

regulations are found in the federal 

regulations applicable to that specific 

state approved program. For example, 

for title V purposes, state programs must 

comply with the public participation 

provisions described in 40 CFR part 70; 

for PSD purposes, state programs must 

comply with the public participation 

provisions described in 40 CFR 

51.166(q). 401 KAR 52:100 is consistent 

with the federal regulations for the 

programs to which it applies. 

Comment: The commenter expresses 

that Section 3 of 401 KAR 52:100 is 

written as if a public hearing is optional. 

The commenter refers to the CAA and 

suggests that a hearing is obligated for 

many PSD matters. 

Response: Kentucky’s PSD regulations 

(401 KAR 51:017) require that the 

permitting authority follow the 

applicable procedures of 40 CFR 

51.166(q) and 401 KAR 52:100. 

Comment: The commenter states that 

citizens, in an area where a new major 

source is to be located or where an 

existing source is requesting a major 

modification, should be entitled and 

informed of the public participation 

process including five elements. These 

elements obligate a hearing if there is a 

request; affords time, such as at least 30 

calendar days prior to the hearing 

during which citizens may familiarize 

themselves with the draft, the technical 

support of the draft, and the application; 

grant to anyone who makes some cogent 

timely comment, the legal standing right 

to appeal any issue raised by anyone’s 

cogent timely comment; obligate that if 

a cogent technical comment is made 

orally at the hearing, that it has the full 

force of law and that it need not be 

submitted by the speaker in writing in 

order to be an item preserved for review 

(although encouraging written 

submissions for accuracy and courtesy 

to the permitting agency is proper), and; 

afford time, such as at least 12 calendar 

days following the hearing, during 

which citizens may timely file written 

comment on the draft after having had 

the opportunity to have heard the 

matters expressed in the hearing. The 

commenter further requests that EPA 

initiate rulemaking for various 

regulatory permit programs to ‘‘codify’’

certain public participation elements. 

Response: With regard to the actions 

at issue at this time, Kentucky’s 

provisions are equivalent to applicable 

federal regulations. Therefore, 

Kentucky’s rules proposed for inclusion 

into the SIP are approvable by EPA. 

Comment: The commenter expresses 

that Section 5 of 401 KAR 52:100 does 

not contain ‘‘identical, synonymous, or 

superior text as a notice requirement.’’

The commenter points to a January 2002 

legal notice published by the Kentucky 

Division for Air Quality (KDAQ) as an 

example of a deficient public notice. 

Response: In accordance with 

Kentucky’s rules, public notice and 

participation on PSD permits is 

governed by 40 CFR 51.166(q). It is 

unclear whether the commenter believes 

that the KDAQ January 2002 legal notice 

fails to comply with the provisions in 

the Kentucky rules which apply to such 

notices. Nonetheless, the SIP action 

proposed by EPA on December 30, 2002, 

does not relate to the January 2002 

public notice on a PSD permit discussed 

by the commenter. Comments regarding 

specific PSD permits and corresponding 

public notices should be raised during 

the public comment period on that 

permit and addressed to the agency 

responsible for issuing that permit. This 

comment is not relevant to the action at 

issue at this time. 

Comment: The commenter asserts that 

the requirements of 40 CFR 51.166 are 

‘‘terse to the point of near 

meaninglessness’’ and do not comply 

with Congressional intent for public 

participation. The commenter makes a 

similar statement regarding portions of 

40 CFR part 124. The commenter gives 

specific examples of what a public 

notice could include. 

Response: Neither of the provisions 

cited by the commenter are at issue in 

this final action regarding Kentucky’s 

SIP. Both provisions are final federal 

rules that have been in effect for years. 

Comments regarding federal rules 

should have been provided within the 

timeframes for challenging such rules 

(i.e., when EPA proposes changes to 

federal rules, comments must be 

submitted within the stated timeframes 

in order to be considered by EPA for 

that rulemaking). The present action 

will have no impact on 40 CFR 51.166 

or 40 CFR part 124. 

Comment: The commenter notes that 

Section 2(4) of 401 KAR 52:100 will 

make public comments available upon 

request and believes the comments may 

be abridged, which does not meet the 

requirements set forth in 40 CFR 51.166. 

Response: The commenter appears 

confused about the application of 401 

KAR 52:100 to different air permit 

programs. As noted earlier, Kentucky’s 

PSD permitting regulations require that 

the permitting authority follow the 

provisions described in 40 CFR 51.166 

for public participation. 401 KAR 

52:100 applies specifically to CAA title 

V operating permits (401 KAR 52:020) 

and Federally Enforceable State 

Operating Permits (FESOPs) (401 KAR 

52:030). The language included in 401 

KAR 52:100 is equivalent to federal 

regulations regarding public 

participation for the programs to which 

it applies. Therefore, the regulations 

proposed by Kentucky for inclusion in 

the Kentucky SIP are approvable. 

Comment: The commenter states that 

much of 401 KAR 52:001 does not meet 

requirements established in 40 CFR 

51.166(a). The commenter identifies 

several examples where the commenter 

believes that definitions in 401 KAR 

52:001 are less stringent than the federal 

definitions, or otherwise problematic. 

As examples, the commenter cites to the 

definition of ‘‘electric utility steam 

generating unit,’’ ‘‘commence,’’ and 

‘‘major modification.’’

Response: Kentucky’s PSD permitting 

definitions are found in 401 KAR 

51:001, not 52:001. Kentucky’s rules, 

including 401 KAR 52:001, are 

equivalent to the applicable federal 

regulations, and are approvable into the 

Kentucky SIP. Notably, the definitions 

included in Kentucky’s PSD permit 

program (401 KAR Chapter 51) were 

recently revised by Kentucky to include 

new regulations promulgated by EPA in 

December, 2002. EPA published a notice 

regarding Kentucky’s PSD program in 

the Federal Register on February 10, 

2006 (71 FR 9688); no public comments 

were received on that proposed action. 

EPA took final action to approve those 

changes on July 11, 2006 (71 FR 38990). 

Comment: With regard to a statement 

in 67 FR 79524 (the direct final rule that 

was withdrawn), the commenter states 

that ‘‘[t]he people are reasonably 

entitled to review EPA’s work again 

prior to EPA granting any additional 

misplaced authority to a rogue state.’’

Response: The procedure followed by 

EPA in the present action included the 

simultaneous publication of both a 

direct final rule (67 FR 79524, December 

30, 2002) and a proposed rule (67 FR 


jlentini on PROD1PC65 with RULES
Federal Register / Vol. 71, No. 172 / Wednesday, September 6, 2006 / Rules and Regulations 52463 

79543, December 30, 2002). As noted in 

the direct final action, when EPA 

receives adverse comments on direct 

final rules, EPA withdraws the direct 

final rule and issues a final rule based 

on the simultaneously published 

proposed rule. EPA withdrew the direct 

final rule on February 10, 2003 (68 FR 

6629). EPA’s review of the proposed SIP 

revision by Kentucky was 

comprehensive. EPA is now taking final 

action based on the proposal, and 

addressing the one set of adverse 

comments received on the proposed 

action. 

Comment: The commenter states that 

67 FR 79523 and 79543 are devoid of 

explanation for the proposed addition of 

401 KAR 52:001 and 401 KAR 52:100. 

The commenter further notes that 40 

CFR part 52, subpart S is defective. 

Response: EPA disagrees with the 

commenter’s statement. The two 

Federal Register notices cited by the 

commenter include specific information 

regarding what actions are being taken 

by EPA. The Kentucky SIP contains 

rules that are equivalent to the 

applicable Federal rules. The 

commenter fails to provide any reason 

why 40 CFR part 52, subpart S is 

defective. 

Comment: The commenter states that 

Kentucky should be sanctioned for 

having acted in contempt of the CAA. 

Response: The commenter has not 

provided any information 

demonstrating how Kentucky has acted 

in ‘‘contempt’’ of the CAA. This 

comment does not appear relevant to 

the action proposed by EPA regarding 

the Kentucky SIP. EPA disagrees with 

the commenter’s conclusion regarding 

sanctions. 

Comment: The commenter states that 

there can be no doubt that Kentucky 

knowingly and intentionally submitted 

to EPA rules that provide less effective 

technical environmental protection; less 

effective opportunity for informed 

public participation in the permitting 

process; and less effective legal forums 

and processes for review of questioned 

decisions than that given to those where 

40 CFR 52.21 and 40 CFR part 124 are 

fully applicable to PSD permits. 

Response: EPA has no information or 

evidence suggesting that Kentucky has 

knowingly and intentionally violated 

any provision of the CAA or its 

implementing regulations. As noted 

earlier, 40 CFR part 124 does not apply 

to PSD permits issued by state 

permitting authorities and likewise, the 

provisions in 40 CFR 52.21 govern only 

EPA issuance of PSD permits. 

Comment: The commenter appears to 

state concern regarding the time that 

EPA took to review the Kentucky SIP 

revision at issue. 

Response: In reviewing the Kentucky 

SIP revision at issue, EPA followed its 

SIP processing guidance, its regulations 

at 40 CFR part 51, Appendix V, and the 

requirements of Section 110 of the Clean 

Air Act. 

IV. Final Action 

EPA is now taking final action to 

approve two of four requested revisions 

to the SIP for the Commonwealth of 

Kentucky submitted to EPA on March 

15, 2001. The first revision being 

approved regards the removal and 

separation of rule 401 Kentucky 

Administrative Regulations (KAR) 

50:035 (‘‘Permits’’) into three separate 

rules under a new Chapter 52 (Permits, 

Registrations, and Prohibitory Rules). 

Specifically, these rules are 52:001 

(Definitions for 401 KAR Chapter 52), 

52:030 (Federally-enforceable permits 

for non-major sources), and 52:100 

(‘‘Public, affected state, and U.S. EPA 

review’’). The second change involves 

corrections to grammatical errors in rule 

50:032 (‘‘Prohibitory Rule for Hot Mix 

Asphalt Plants’’) and the removal of rule 

50:032 from Chapter 50 and adding it to 

Chapter 52, under 52:090 (‘‘Prohibitory 

Rule for Hot Mix Asphalt Plants’’). 

V. Statutory and Executive Order 

Reviews 

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 Commonwealth 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.). 

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. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 


jlentini on PROD1PC65 with RULES
52464 Federal Register / Vol. 71, No. 172 / Wednesday, September 6, 2006 / Rules and Regulations 

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 6, 

2006. 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 may not be 

challenged later in proceedings to 

enforce its requirements. See Clean Air 

Act section 307(b)(2). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Ozone, Reporting and 

recordkeeping requirements, Volatile 

organic compounds. 

Dated: August 25, 2006. 

A. Stanley Meiburg, 

Acting Regional Administrator, Region 4. 

■ 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 S—Kentucky 

■ 2. Section 52.920(c) Table 1 is 

amended: 

■ a. In paragraph (c) by removing entries 

for 401 KAR 50:035 titled ‘‘Permits’’ and 

401 KAR 50:032 titled ‘‘Prohibitory rule 

for hot mix asphalt plants’’, 

■ b. In paragraph (c) adding in 

numerical order a new chapter heading 

‘‘Chapter 52 Permits, Registrations, and 

Prohibitory Rules’’ and entries for 401 

KAR 52:001 titled ‘‘Definitions for 401 

KAR Chapter 52’’, 401 KAR 52:030 

titled ‘‘Federally enforceable permits for 

non-major sources’’, 401 KAR 52:090 

titled ‘‘Prohibitory rule for hot mix 

asphalt plants’’ and 401 KAR 52:100 

titled ‘‘Public, affected state, and U.S. 

EPA review’’ to read as follows: 

§ 52.920 Identification of plan. 

* * * * * 

(c) * * * 

TABLE 1.—EPA-APPROVED KENTUCKY REGULATIONS

State citation Title/subject State effective date EPA approval date Explanation 

* * * * * * * 

Chapter 52 Permits, Registrations, and Prohibitory Rules 

401 KAR 52:001 ................ Definitions for 401 KAR Chapter 52 ............................. 01/15/01 09/06/06 [Insert citation of 

publication].

401 KAR 52:030 ................ Federally enforceable permits for non-major sources .. 01/15/01 09/06/06 [Insert citation of 

publication].

401 KAR 52:090 ................ Prohibitory rule for hot mix asphalt plants .................... 01/15/01 09/06/06 [Insert citation of 

publication].

401 KAR 52:100 ................ Public, affected state, and U.S. EPA review ................ 01/15/01 09/06/06 [Insert citation of 

publication].

* * * * * * * 

* * * * * 

[FR Doc. 06–7415 Filed 9–5–06; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R05–OAR–2006–0436; FRL–8214–2] 

Approval and Promulgation of Air 

Quality Implementation Plans; Illinois; 

Ford Motor Company Adjusted 

Standard 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is approving a January 4, 

2006, request from Illinois for a site 

specific revision to the State 

Implementation Plan (SIP) for the Ford 

Motor Company (Ford). The revision 

will allow Ford to discontinue use of its 

Stage II vapor recovery system (Stage II) 

at its Chicago Assembly Plant. In place 

of Stage II, Ford will comply with the 

standards of the federal onboard 

refueling vapor recovery (ORVR) 

regulations, as well as meet other minor 

conditions. The exclusive use of ORVR 

will provide at least an equivalent 

amount of gasoline vapor capture as 

Stage II. 

DATES: This direct final rule will be 

effective November 6, 2006, unless EPA 

receives adverse comments by October 

6, 2006. If adverse comments are 

received, EPA will publish a timely 

withdrawal of the direct final rule in the 

Federal Register informing the public 

that the rule will not take effect. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R05–

OAR–2006–0436, by one of the 

following methods: 

• http://www.regulations.gov: Follow 

the on-line instructions for submitting 

comments. 

• E-mail: mooney.john@epa.gov. 

• Fax: (312) 886–5824. 

• Mail: John M. Mooney, Chief, 

Criteria Pollutant Section, Air Programs 

Branch (AR–18J), U.S. Environmental 

Protection Agency, 77 West Jackson 

Boulevard, Chicago, Illinois 60604. 

• Hand Delivery: John M. Mooney, 

Chief, Criteria Pollutant Section, Air 

Programs Branch (AR–18J), U.S. 

Environmental Protection Agency, 77 

West Jackson Boulevard, Chicago, 

Illinois 60604. Such deliveries are only 

accepted during the Regional Office 

normal hours of operation, and special 

arrangements should be made for 

deliveries of boxed information. The 

Regional Office official hours of 

business are Monday through Friday, 

8:30 a.m. to 4:30 p.m. excluding Federal 

holidays. 

Instructions: Direct your comments to 

Docket ID No. EPA–R05–OAR–2006–

0436. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 


jlentini on PROD1PC65 with RULES