Federal Register / Vol. 70, No. 95 / Wednesday, May 18, 2005 / Rules and Regulations 28429

Reduction Act of 1995 (44 U.S.C. 3501–

3520). 

Federalism 

A rule has implications for federalism 

under Executive Order 13132, 

Federalism, if it has a substantial direct 

effect on State or local governments and 

would either preempt State law or 

impose a substantial direct cost of 

compliance on them. We have analyzed 

this rule under that Order and have 

determined that it does not have 

implications for federalism. 

Unfunded Mandates Reform Act 

The Unfunded Mandates Reform Act 

of 1995 (2 U.S.C. 1531–1538) requires 

Federal agencies to assess the effects of 

their discretionary regulatory actions. In 

particular, the Act addresses actions 

that may result in the expenditure by a 

State, local, or tribal government, in the 

aggregate, or by the private sector of 

$100,000,000 or more in any one year. 

Though this rule will not result in such 

an expenditure, we do discuss the 

effects of this rule elsewhere in this 

preamble.

Taking of Private Property 

This rule will not affect a taking of 

private property or otherwise have 

taking implications under Executive 

Order 12630, Governmental Actions and 

Interference with Constitutionally 

Protected Property Rights. 

Civil Justice Reform 

This rule meets applicable standards 

in sections 3(a) and 3(b)(2) of Executive 

Order 12988, Civil Justice Reform, to 

minimize litigation, eliminate 

ambiguity, and reduce burden. 

Protection of Children 

We have analyzed this rule under 

Executive Order 13045, Protection of 

Children from Environmental Health 

Risks and Safety Risks. This rule is not 

an economically significant rule and 

does not create an environmental risk to 

health or risk to safety that may 

disproportionately affect children. 

Indian Tribal Governments 

This rule does not have tribal 

implications under Executive Order 

13175, Consultation and Coordination 

with Indian Tribal Governments, 

because it does 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. 

Energy Effects 

We have analyzed this rule under 

Executive Order 13211, Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use. We have 

determined that it is not a ‘‘significant 

energy action’’ under that order because 

it is not a ‘‘significant regulatory action’’

under Executive Order 12866 and is not 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy. The Administrator of the Office 

of Information and Regulatory Affairs 

has not designated it as a significant 

energy action. Therefore, it does not 

require a Statement of Energy Effects 

under Executive Order 13211. 

Technical Standards 

The National Technology Transfer 

and Advancement Act (NTTAA) (15 

U.S.C. 272 note) directs agencies to use 

voluntary consensus standards in their 

regulatory activities unless the agency 

provides Congress, through the Office of 

Management and Budget, with an 

explanation of why using these 

standards would be inconsistent with 

applicable law or otherwise impractical. 

Voluntary consensus standards are 

technical standards (e.g., specifications 

of materials, performance, design, or 

operation; test methods; sampling 

procedures; and related management 

systems practices) that are developed or 

adopted by voluntary consensus 

standards bodies. 

This rule does not use technical 

standards. Therefore, we did not 

consider the use of voluntary consensus 

standards. 

Environment 

We have analyzed this rule under 

Commandant Instruction M16475.lD, 

which guides the Coast Guard in 

complying with the National 

Environmental Policy Act of 1969 

(NEPA) (42 U.S.C. 4321–4370f). A final 

‘‘Environmental Analysis Check List’’

and a final ‘‘Categorical Exclusion 

Determination’’ will be available in the 

docket where indicated under 

ADDRESSES.

List of Subjects in 33 CFR Part 165 

Harbors, Marine safety, Navigation 

(water), Reporting and record keeping 

requirements, Security measures, 

Waterways.

■ For the reasons set out in the preamble, 

the Coast Guard amends 33 CFR part 165 

as follows:

■ 1. The authority citation for part 165 

continues to read as follows:

Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. 

Chapter 701; 50 U.S.C. 191, 195; 33 CFR 

1.05–1(g), 6.04–1, 6.04–6, and 160.5; Pub. L. 

107–295, 116 Stat. 2064; Department of 

Homeland Security Delegation No. 0170.1.

■ 2. From June 12, 2004 to November 30, 

2005, add temporary § 165.T17–010 to 

read as follows:

§ 165.T17–010 Safety Zone; Bering Sea, 

Aleutian Islands, Unalaska Island, AK. 

(a) Description. This safety zone is 

defined by a point at the western tip of 

Cape Kovrizhka, Unalaska Island, 

located at 53°51.0′ N, 167°9.5′ W, then 

west 10 nautical miles to a point located 

at 53°51.0′ N, 167°26′ W, then south to 

the northern tip of Wedge Point, 

Unalaska Island, located at 53°27′ N, 

167°24′ W. All coordinates reference 

Datum: NAD 1983. 

(b) Enforcement period. The safety 

zone in this section will be enforced 

from June 12, 2005 through November 

30, 2005. 

(c) Regulations. (1) The Captain of the 

Port and the Duty Officer at Marine 

Safety Office, Anchorage, Alaska can be 

contacted at telephone number (907) 

271–6700. 

(2) The Captain of the Port may 

authorize and designate any Coast 

Guard commissioned, warrant, or petty 

officer to act on his behalf in enforcing 

the safety zone. 

(3) The general regulations governing 

safety zones contained in § 165.23 

apply. No person or vessel may enter or 

remain in this safety zone, with the 

exception of attending vessels, without 

first obtaining permission from the 

Captain of the Port or his on-scene 

representative.

Dated: May 3, 2005. 

R.J. Morris, 

Captain, U.S. Coast Guard, Captain of the 

Port, Western Alaska.

[FR Doc. 05–9925 Filed 5–17–05; 8:45 am] 

BILLING CODE 4910–15–P

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[R04–OAR–2004–KY–0002–200511; FRL–

7914–5] 

Approval and Promulgation of 

Implementation Plans for Kentucky: 

Inspection and Maintenance Program 

Removal for Jefferson County, 

Kentucky; Source-Specific Nitrogen 

Oxides Emission Rate for Kosmos 

Cement Kiln

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Final rule.

28430 Federal Register / Vol. 70, No. 95 / Wednesday, May 18, 2005 / Rules and Regulations 

SUMMARY: EPA is approving a revision to 

the Jefferson County, Kentucky, portion 

of the Kentucky State Implementation 

Plan (SIP) requesting removal of three 

regulations from the regulatory portion 

of the Kentucky SIP related to the 

Jefferson County inspection and 

maintenance (I/M) program. EPA is 

approving Kentucky’s September 22, 

2003, SIP revision to move these I/M 

regulations to the contingency measures 

section of the Kentucky portion of the 

Louisville 1-Hour Ozone Maintenance 

Plan. EPA is also approving a sourcespecific SIP revision amending the 

nitrogen oxides (NOX) emission rate for 

Kosmos Cement Company’s cement 

kiln. This final rule addresses comments 

made on EPA’s proposed rulemaking 

previously published for this action.

DATES: This rule will be effective June 

17, 2005.

ADDRESSES: EPA has established a 

docket for this action under Regional 

Material in EDocket (RME) ID No. R04–

OAR–2004–KY–0002. All documents in 

the docket are listed in the RME index 

at http://docket.epa.gov/rmepub/, once 

in the system, select ‘‘quick search,’’

then key in the appropriate RME Docket 

identification number. 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 in RME 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 contact 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:

Michele Notarianni, 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. Ms. Notarianni can be 

reached via telephone number at (404) 

562–9031 or electronic mail at 

notarianni.michele@epa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents 

I. Today’s Action 

II. Background 

III. Response to Comments 

IV. Final Action 

V. Statutory and Executive Order Reviews

I. Today’s Action 

EPA is approving revisions to the 

Jefferson County, Kentucky, portion of 

the Kentucky SIP related to the Jefferson 

County I/M program, also known as the 

Jefferson County Vehicle Emissions 

Testing (VET) Program. Through this 

final action, EPA is approving the 

movement of three regulations which 

comprise the Jefferson County VET 

Program from the regulatory portion of 

the Kentucky SIP to the contingency 

measures section of the Kentucky 

portion of the Louisville 1-Hour Ozone 

Maintenance Plan, which is part of the 

Kentucky SIP. The three Jefferson 

County VET Program regulations which 

are subject to today’s action are: 

Regulation 8.01, ‘‘Mobile Source 

Emissions Control Requirements,’’

Regulation 8.02, ‘‘Vehicle Emissions 

Testing Procedure,’’ and Regulation 

8.03, ‘‘Commuter Vehicle Testing 

Requirements.’’ Also in this final action 

EPA is approving a source-specific SIP 

revision for changes reflected in the 

May 3, 2004, Board Order for the 

Kosmos Cement Company’s cement 

kiln. EPA is approving the revisions to 

the Board Order which lower the kiln’s 

NOX emission rate to 4.755 pounds per 

ton of clinker produced (pptcp) by the 

kiln, based upon a rolling 30-day 

average. In addition, EPA is responding 

to the adverse comments received on 

the January 3, 2005, rulemaking 

proposing to approve the 

aforementioned revisions (70 FR 53). 

II. Background

On January 3, 2005, EPA proposed 

approval of Kentucky’s September 22, 

2003, SIP revision request to move the 

three, SIP-approved Jefferson County 

VET Program regulations to the 

contingency measures section of the 

Kentucky SIP, and to lower the NOX

emission rate for the Kosmos Cement 

Company’s cement kiln (70 FR 53). The 

emissions reductions from the Kosmos 

Cement Company provide 

compensating, equivalent emissions 

reductions for the Jefferson County VET 

Program. (See the proposed rule 

published January 3, 2005, at 70 FR 53 

for further background and a detailed 

analysis of the complete September 22, 

2003, SIP revision.) EPA received 

adverse comments on the proposed rule. 

In today’s action, EPA is responding to 

the adverse comments received. 

III. Response to Comments 

Comment 1: The commenter writes 

that the SIP revision is unapprovable 

because Jefferson County is violating 

both the 8-hour ozone and fine 

particulate matter (PM2.5) NAAQS, to 

which the VET Program contributed 

emissions reductions. A plain reading of 

Section 110(l) of the Clean Air Act 

(CAA) requires that the Louisville Metro 

Air Pollution Control District 

(LMAPCD) first determine whether the 

I/M program will be necessary for 

achievement of the 8-hour ozone (and 

PM2.5) standards prior to approval of 

removal of the measure from the current 

SIP. Another commenter also questions 

what is the justification for terminating 

the VET Program. 

Response 1: Jefferson County, 

Kentucky is designated nonattainment 

for the 8-hour ozone and PM2.5 NAAQS. 

Control strategy SIP revisions showing 

how the area will attain these NAAQS 

are due June 15, 2007, for the 8-hour 

ozone standard and April 5, 2008, for 

the PM2.5 standard, unless the area 

attains the standards prior to these due 

dates. These control strategy SIPs will 

identify the control measures that will 

be used to help the area attain the 

NAAQS. The control measures will be 

selected by the Commonwealth of 

Kentucky after public notice and 

comment. 

In a May 11, 2004, letter from EPA to 

Louisville’s Assistant County Attorney, 

EPA provided its interpretation of 

section 110(l) of the Clean Air Act as 

guidance in relation to an area such as 

Jefferson County that does not yet have 

an attainment demonstration for the 8-

hour ozone nor for the PM2.5 NAAQS. 

Prior to the time when the control 

strategy SIP revisions are due, to 

demonstrate no interference with any 

applicable NAAQS or requirement of 

the Clean Air Act under section 110(l), 

EPA has interpreted this section such 

that States can substitute equivalent (or 

greater) emissions reductions to 

compensate for the control measure 

being moved from the regulatory portion 

of the SIP to the contingency provisions. 

As long as actual emissions in the air 

are not increased, EPA believes that 

equivalent (or greater) emissions 

reductions will be acceptable to 

demonstrate non-interference. EPA does 

not believe that areas must wait to 

produce a complete attainment 

demonstration to make any revisions to 

the SIP, provided the status quo air 

quality is preserved. EPA believes this 

will not interfere with an area’s ability 

to develop a timely attainment 

demonstration. As an acceptable means 

to demonstrate no interference in order 

Federal Register / Vol. 70, No. 95 / Wednesday, May 18, 2005 / Rules and Regulations 28431

to satisfy section 110(l) of the CAA, the 

submittal provides for equivalent 

emissions reductions from the Kosmos 

Cement Company to replace the NOX

and volatile organic compound (VOC) 

emissions reductions previously gained 

from the VET Program to ensure actual 

emissions in the air are not increased 

pending development of a complete 

attainment demonstration for the new 8-

hour ozone and PM2.5 standards. Even if 

the area ultimately determines that an I/

M program should again be instituted as 

part of those future attainment 

demonstrations, since air quality has not 

been adversely affected in the interim, 

EPA believes that 110(l) will be 

satisfied. 

As for the 1-hour ozone and carbon 

monoxide (CO) NAAQS, Kentucky has 

demonstrated through air quality 

analyses that the VET Program is not 

needed for the Kentucky portion of the 

Louisville area in order to continue to 

maintain those NAAQS. VOC and NOX

emissions remain below 1999 

attainment year levels to support 

movement of the program to a 

contingency measure in the Kentucky 

portion of the Louisville 1-Hour Ozone 

Maintenance Plan. Finally, since mobile 

source winter CO emission levels 

continuously decline from 1999 through 

2020, EPA concludes that no potential 

interference with the CO standard will 

result from this action. (For the 

complete analysis, see pages 56–57 of 

proposed rule, 70 FR 53, published 

January 3, 2005.) 

The commenter also questions 

whether a demonstration of noninterference is needed for air toxics, also 

known as hazardous air pollutants 

(HAPs). An I/M program is not designed 

to reduce HAPs, however, the program 

does reduce emissions of VOCs, several 

of which are HAPs. Since there are no 

ambient air quality standards 

established for HAPs, the area must 

demonstrate that the SIP revision will 

not interfere with any applicable air 

toxics rules. There are no air toxics rules 

that apply to motor vehicles, thus 

removal of the VET Program does not 

interfere with any Federal standards 

that might apply. Furthermore, a change 

to requirements that apply to mobile 

sources in the area does not interfere 

with implementation of Federal air 

toxics rules i.e., maximum achievable 

control technology (MACT) standards, 

that apply to stationary sources in the 

area. The EPA thus concludes that noninterference relative to air toxics has 

been demonstrated. 

Comment 2: The commenter states 

that, ‘‘EPA has issued policy 

interpretations that sweep the noninterference obligation under the 

regulatory rug and which clearly 

undercut 110(l) through a substantive 

agency interpretation, not properly 

promulgated as a regulation under 5 

U.S.C. 553 despite an obvious and 

dramatic effect of altering the 

applicability of law, and which proffers 

an interpretation of 110(l) that flunks 

the first step of Chevron.’’ The 

commenter believes the ‘‘strict’’

interpretation of Section 110(l) which 

EPA describes in its May 11, 2004, letter 

to the District is the only interpretation 

consistent with the plain language and 

intent of the Act, and that removal of an 

approved and implemented control 

measure controlling both precursors of 

ozone and particulates, at a time when 

it is not known what additional 

reductions will be needed to attain the 

8-hour ozone and fine particulates 

standard in the Jefferson County 

airshed, is of questionable legality. Until 

EPA completes the guidance on what 

constitutes ‘‘interference,’’ EPA defense 

of an ad-hoc finding of ‘‘noninterference’’ appears unsubstantiated. 

Response 2: EPA is authorized by 

Congress to issue interpretations of 

ambiguous provisions of the Clean Air 

Act without promulgating a regulation. 

Through the January 3, 2005, proposed 

rule (70 FR 53), EPA sought public 

comment on its current interpretation of 

110(l) of the Act. EPA has evaluated the 

comments and believes its 

interpretation to be reasonable. EPA is 

taking final action on this interpretation 

in this rulemaking action, which has 

undergone appropriate notice-andcomment procedures, and EPA is here 

responding to all comments submitted 

on this issue. EPA concludes that the 

language in section 110(l) is not clear on 

its face with respect to the 

demonstrations necessary to show noninterference in the absence of an 

approved attainment demonstration. 

Rather, EPA believes section 110(l) is 

ambiguous with respect to the 

appropriate test for these areas, and 

consequently EPA has the discretion to 

interpret section 110(l) for these areas 

consistent with the Act as a whole. EPA 

believes that so long as substitute 

reductions are achieved such that 

ambient air quality levels in the area are 

not adversely affected in the interim, 

SIP revisions will not interfere with an 

area’s obligations to develop timely 

demonstrations of attainment and 

reasonable further progress. 

Consequently, since substitute 

reductions have been submitted in this 

case, EPA concludes that the Agency is 

authorized to approve this SIP revision 

consistent with section 110(l). 

Comment 3: The commenter states 

that the NOX reductions achieved by 

Kosmos occurred prior to the 2003 

ozone season, yet the community had 

numerous incidents of exceedances of 

ozone standards even with the Kosmos 

emissions reductions and the VET 

Program. Substituting already-achieved 

emissions reductions that were 

insufficient to prevent violations during 

the previous ozone season do not 

provide any new reductions to offset 

those lost. The District must provide 

new actual reductions, not ones that 

have already been achieved.

Response 3: EPA clarifies that the 

Louisville area has had no 1-hour ozone 

NAAQS exceedances since the area was 

redesignated to attainment for that 

standard in a final action published 

October 23, 2001, 66 FR 53665. 

Regarding exceedances of the 8-hour 

ozone NAAQS during the 2003 ozone 

season, Kentucky has provided 

substitute, equivalent emissions 

reductions that meet the criteria set 

forth in EPA’s proposed rulemaking 

published January 3, 2005 (70 FR 53) to 

demonstrate no interference with the 8-

hour ozone and PM2.5 NAAQS. (See 

Response #1.) EPA believes that this 

equivalent substitution of emissions to 

ensure no net emissions change into the 

air is allowable regardless of whether 

the area is meeting the 8-hour ozone or 

PM2.5 NAAQS. Enacting the equivalent 

reductions at Kosmos prior to (rather 

than after) the cessation of the VET 

Program provides additional assurance 

that there is no net emissions increase 

to the air for any period of time. The 

control strategy SIP for the area will 

ultimately demonstrate how the 

Louisville area will meet the 8-hour 

ozone and PM2.5 NAAQS as noted in 

Response #1. 

The NOX emissions reductions at 

Kosmos, as reflected in the emission 

rate reduction to 4.755 pptcp of NOX, 

are new or ‘‘surplus’’ for two reasons. 

The reduction is not from a Federal 

Control Measure that would occur 

without any state or local action and the 

emission rate reduction is below what is 

already required in the Jefferson County 

portion of the Kentucky SIP. (For 

additional details, refer to the proposed 

rulemaking published January 3, 2005, 

at 70 FR 53.) Although the NOX

emissions reductions at Kosmos 

occurred eight months prior to the 

closing of the VET Program, these 

reductions are considered new 

reductions based on EPA’s policy of 

supporting early implementation of 

control measures to achieve early 

emissions reductions. This policy is 

commonly applied, for example, to 

enact contingency measures prior to the 

occurrence of a NAAQS violation in an 

area. This policy of allowing early 

28432 Federal Register / Vol. 70, No. 95 / Wednesday, May 18, 2005 / Rules and Regulations 

emissions reductions was upheld in the 

September 8, 2004, 5th Circuit decision 

(Louisiana Environmental Action 

Network v. EPA, 382 F.3d 575 (5th Cir. 

2004)). 

Comment 4: Is there a guidance 

document EPA uses to determine 

whether proposed substitutions of 

emissions reductions are acceptable? 

Response 4: Yes, the Agency is using 

several guidance documents to assess 

the legality of accepting compensating 

emissions reductions. These guidance 

documents are listed below, and further 

described in the January 3, 2005, 

proposed rule (70 FR 53) with 

information on how to obtain copies. 

The EPA guidance memorandum from 

John Calcagni, Director, Air Quality 

Management Division, to the Air 

Directors in EPA Regions 1–10, 

‘‘Procedures for Processing Requests to 

Redesignate Areas to Attainment,’’

September 4, 1992, is currently being 

used. On pages 10 and 13, the guidance 

allows areas redesignated to attainment 

for the NAAQS to move control 

measures from the regulatory portion of 

the SIP to the contingency plan if they 

are not needed to maintain the NAAQS 

and if compensating equivalent 

emissions reductions are provided. The 

guidance notes that a demonstration 

that measures are equivalent would 

have to include appropriate modeling or 

an adequate justification. This 1992 

memorandum pertains to the NAAQS in 

existence at the time, which include the 

1-hour ozone and CO NAAQS. EPA is 

currently drafting guidance that 

specifically addresses section 110(l). 

Guidance EPA is using as precedence 

to determine the acceptability of 

substituting NOX for VOC emissions 

reductions in the Louisville case is the 

August 5, 1994, EPA memorandum, 

‘‘Clarification of Policy for Nitrogen 

Oxides (NOX) Substitution,’’ from John 

Seitz, Director, Office of Air Quality 

Planning and Standards. This 

memorandum pertains to EPA’s ‘‘NOX

Substitution Guidance’’ (December 

1993). The guidance acknowledges that 

controlling only VOCs may not be the 

most effective approach in all areas for 

attaining the ozone standard and allows 

for substitution of NOX emissions 

reductions for VOC emissions 

reductions as appropriate, contingent 

upon approval by EPA. 

Two items of correspondence from 

EPA that serve as guidance are also 

described in the January 3, 2005, 

proposed rule (70 FR 53). The Agency 

is using the May 12, 2004, EPA 

Memorandum from Tom Helms, Group 

Leader, Ozone Policy and Strategies 

Group, Office of Air Quality Planning 

and Standards, and Leila H. Cook, 

Group Leader, State Measures and 

Conformity Group, Office of 

Transportation and Air Quality, to the 

Air Program Managers, the subject of 

which is ‘‘1-Hour Ozone Maintenance 

Plans Containing Basic I/M Programs.’’

The May 12, 2004, memorandum 

addresses the application of 8-hour 

ozone anti-backsliding provisions to 

basic I/M programs in 1-hour ozone 

maintenance areas. In addition, EPA is 

using a May 11, 2004, letter from the 

Agency to Louisville’s Assistant County 

Attorney to provide the Agency’s 

current interpretation of section 110(l) 

of the Clean Air Act as guidance in 

relation to an area such as Jefferson 

County that does not yet have an 

attainment demonstration for the new 8-

hour ozone and PM2.5 NAAQS.

Comment 5: The commenter states 

that it has not been demonstrated, 

through appropriate modeling and 

analysis, that reductions of NOX from 

tall stack emissions controls would 

yield the same or better air quality 

benefit in ozone formation reduction as 

from ground-level exhaust emissions of 

both VOCs and NOX from continued 

implementation of the I/M program. 

Response 5: The May 26, 2004, 

supplement to the September 22, 2003, 

SIP submittal provides information to 

address the equivalency of NOX

emissions reductions from Kosmos 

Cement Company, a point source, to 

replace low-level, area reductions of 

NOX and VOC gained by the VET 

Program. This information is discussed 

under the third response of the 

LMAPCD Comment and Response 

document. In summary, the LMAPCD 

document provides existing modeling 

for the area that shows NOX emissions 

reductions are beneficial to the 

Louisville area and that NOX emissions 

reduction scenarios in all cases in the 

Louisville area resulted in a greater 

reduction of ozone concentrations than 

the VOC reduction scenarios. Modeling 

to demonstrate the air quality impacts 

from this specific scenario was not 

developed. Modeling was not needed to 

support this equivalency demonstration 

because it is unlikely that the small 

emission changes involved in the 

removal of the VET Program and 

additional reductions from the Kosmos 

cement kiln would be noticeable in the 

modeling or have any noticeable effects 

on ozone formation in the modeling. 

The photochemical models are more 

suited to assessing the aggregate effects 

of the many control measures used in an 

attainment strategy for an urban area. 

However, sensitivity modeling of 

emissions reductions on source 

categories can be used to provide 

directional information on the 

effectiveness of precursor reductions. 

Such information was provided through 

the sensitivity modeling developed for 

the 1-hour ozone NAAQS for the 

Louisville area. This modeling 

demonstrates that areawide ozone 

coverages for concentrations greater 

than the ozone standard are more 

effectively reduced with NOX emissions 

reductions than with VOC reductions. 

The Louisville modeling does show that 

VOC emissions reductions are 

beneficial, but on a more localized level, 

whereas NOX emissions reductions are 

beneficial over a larger area. In 

conclusion, EPA finds the analysis 

detailed in the Comment and Response 

document adequate to demonstrate that 

point source NOX reductions will yield 

the same or better air quality benefit in 

reducing ozone formation as low-level, 

areawide emissions reductions of VOC 

and NOX. 

Comment 6: The commenter states 

that the emissions reductions at Kosmos 

are clearly not contemporaneous since 

they occurred in March 2003, nearly 

two years ago. The use of the November 

2003 date to measure the 

contemporaneousness of the emissions 

reductions would reward Louisville for 

having terminated the program 

unlawfully, and is inappropriate given 

that the termination of the program has 

not yet been lawfully approved and it 

remains a component of the SIP. The 

time frame in which the reductions 

must be viewed as ‘‘contemporaneous’’

for purposes of substituting other 

measures in a maintenance plan, must 

be the date of lawful cessation of the

I/M Program on approval by EPA. 

Response 6: While 

‘‘contemporaneous’’ is not explicitly 

defined in the Clean Air Act, EPA 

believes a reasonable interpretation is to 

enact the compensating, equivalent 

emissions reductions within a 

maximum of one year (prior to or 

following) the cessation of the 

substituted control measure. The actual 

dates of occurrence of the start and end 

of substituted control measures, rather 

than the effective date of EPA action on 

a SIP revision, are used to ensure that 

the status quo level of emissions in the 

air is maintained. EPA acknowledges 

that Louisville inappropriately 

terminated the program before obtaining 

EPA approval of a SIP revision, however 

EPA does not believe this is relevant to 

determining the contemporaneousness 

of substitute reductions. Since the 

concept of contemporaneous reductions 

is to address ambient air quality levels, 

EPA believes it should be measured 

with respect to actual program 

implementation. Kosmos’ March 2003 

emissions reductions occurred well 

Federal Register / Vol. 70, No. 95 / Wednesday, May 18, 2005 / Rules and Regulations 28433

within a year of the end of the actual 

termination of the VET Program, which 

occurred as of November 1, 2003. EPA 

agrees that the VET Program remains an 

enforceable component of the SIP, and 

will not become a contingency measure 

until the effective date of this final 

action. (See also Response #7 regarding 

legal consequences of terminating the 

VET Program without EPA approval.) 

Comment 7: Unless the EPA approves 

an amendment to the Kentucky SIP to 

remove the VET Program, the approved 

SIP, including the VET Program, must 

continue to be maintained and enforced 

as a matter of federal law. The 

commenter expresses that the illegal 

termination of the VET Program has 

gone without sanction by the EPA.

Response 7: EPA exercises its 

discretion whether to issue a finding of 

failure to implement the SIP for the 

discontinuation of the VET Program. 

EPA recognized that the LMAPCD was 

actively working with the Agency to 

develop an approvable SIP revision to 

provide compensating emissions 

reductions as expeditiously as possible. 

EPA also notes that in a Memorandum 

Opinion dated January 29, 2004, the 

U.S. District Court concluded that the 

District violated the Clean Air Act by 

terminating the VET Program, an 

approved element of the Kentucky SIP, 

without EPA’s prior approval. 

(Memorandum Opinion, P.20, Case 

Number 3:03CV–712–H) In a court order 

issued June 10, 2004, the Court ordered 

the LMAPCD, the agency responsible for 

implementation of the Jefferson County, 

Kentucky portion of the state SIP, to pay 

a fine of $100,000 in connection with 

this termination of the program. The 

Court subsequently distributed these 

funds to the Kentucky Resources 

Council for use in the Council’s 

environmental projects as specified by 

the Court. The Court did not order the 

District to restart the VET Program due 

to the status of the pending SIP revision 

at that time and the likely timing and 

potential substance of an EPA response. 

(Memorandum and Order, Case Number 

3:03CV–712–H, June 10, 2004) Upon the 

effective date of this final action, the 

issue of not implementing and enforcing 

a control measure in the SIP is resolved. 

Comment 8: The commenter writes 

that the Kosmos reductions are not 

enforceable and equivalent to the lost 

VET Program reductions, because the 

new Kosmos proposed limits are a 

rolling 30-day average rather than a 

maximum instantaneous cap. The 

commenter notes there may be times 

(including days where ozone levels are 

otherwise elevated) in which the 

emissions will exceed the proposed 

average and will not offset what would 

have been captured on a continuous 

basis by the operation of the VET 

Program. The commenter also expressed 

that the modifications resulting in NOX

reductions were undertaken to avoid 

NOX spikes that were in excess of 

permit limits and that as such, those 

reductions would not appear to be 

surplus since they were undertaken to 

achieve compliance with permit 

requirements that would have occurred 

regardless of the termination of the VET 

Program. 

Response 8: The May 3, 2004, 

amended Board Order for the Kosmos 

cement kiln requires that NOX

emissions (expressed as NO2) from the 

cement kiln shall not exceed 4.755 

pptcp by the kiln, based upon a rolling 

30-day average. In this final action, EPA 

is approving the proposed revisions in 

the May 3, 2004, Board Order, including 

this lowered NOX emission rate, into the 

Kentucky SIP. To comply with this 

lower emission rate and the SIP, the 

average of daily NOX emissions from 

Kosmos’ cement kiln over 30 

consecutive days must be below the rate 

approved into the SIP. Any daily 

fluctuations above the emission rate are 

compliant with the SIP as long as this 

30-day rolling average condition is met. 

For this reason, the emissions 

reductions, as reflected in the lowered 

NOX emission rate for Kosmos, are 

surplus and are not a violation of SIP 

requirements. 

Through this final action, the 30-day 

rolling average condition for Kosmos 

becomes federally enforceable. Kosmos 

is required to maintain and operate a 

continuous emission monitoring system 

(CEMS) to measure daily NOX emissions 

into the atmosphere from the cement 

kiln (Appendix A of Kosmos’ NOX

Reasonably Available Control 

Technology (RACT) Plan). This 

requirement to record and submit CEMS 

data allows for monitoring of the 

lowered NOX emission rate at Kosmos 

on a daily basis which will assure 

compliance with the new limit on a 30 

day basis. The VET Program was 

designed with the presumption that the 

vehicle would maintain compliance for 

the year. 

Regarding concerns expressed on high 

ozone days, an emission rate based 

upon a rolling 30-day average is set to 

accommodate normal fluctuations in 

operating conditions while remaining 

protective of public health. EPA notes 

that other programs use a 30-day rolling 

average and have been effective in 

controlling emissions, including NOX

RACT (see page 55625 of 57 FR 55620, 

November 25, 1992) and New Source 

Performance Standards for boilers (see 

page 49444 of 63 FR 49442, September 

16, 1998). Furthermore, EPA believes 

even longer term compliance averaging 

periods have demonstrated their 

effectiveness, e.g., EPA’s NOX SIP Call 

trading program’s ozone season 

averaging time period (‘‘NOX Budget 

Trading Program,’’ August 2004, EPA–

430–R–04–010). Should the rolling 30-

day average NOX emission rate ever 

exceed the established NOX emissions 

standard, Section II.A.4. of Appendix A 

of Kosmos’ NOX RACT Plan contains 

specific reporting and recordkeeping 

requirements for Kosmos to submit 

excess emissions reports that document 

the amount, dates, and timeframes of 

the excess emissions and corrective 

actions taken or preventive measures 

adopted. 

Comment 9: The commenter writes 

that the emissions reductions at Kosmos 

from the installation of controls 

preclude emission at levels contained in 

the former permit even under full 

operating conditions, and that the 

elimination of the increment of 

allowable emissions from the former 

permit limits to the actual potential 

emissions is a ‘‘phantom paper 

reduction’’ rather than a real emissions 

reduction.

Response 9: EPA first clarifies that 

Kosmos made changes to its operating 

procedures, not installed controls, to 

achieve the equivalent emissions 

reductions achieved in March 2003. As 

described in LMAPCD’s Comment and 

Response Document on page 5, by 

requiring all kiln operators to operate 

the kiln in the same manner, the cement 

kiln ran more efficiently and thus used 

less fuel and emitted less pollutants. 

The resulting NOX emissions reductions 

at Kosmos were verified using CEMS, 

which is a monitoring system for 

continuously measuring and recording 

the emissions of a pollutant. The 

Agency’s evaluation of the SIP submittal 

supports that Kosmos will have 

achieved the predicted 8,672 pounds 

per summer day (ppsd) of NOX

emissions reductions in 2004. It is 

EPA’s practice to approve control 

measures into the SIP using projected 

emissions reduction data as long as the 

baseline data and emission projection 

methodology are based on sound 

science. In the proposed approval, 

EPA’s analysis is based on the change in 

the allowable emission rate (6.6 to 4.755 

pptcp NOX) at a constant production 

rate (4700 tons of clinker/day). The 

procedure EPA used in the proposal 

assumes: (1) Kosmos emitted at its 

maximum allowable rate of 6.6 pptcp 

NOX, on average in 2002, under the 

previous Board Order approved into the 

Kentucky SIP and (2) Kosmos will emit 

no more than 4.755 pptcp NOX, on 

28434 Federal Register / Vol. 70, No. 95 / Wednesday, May 18, 2005 / Rules and Regulations 

average, under the new Board Order 

dated May 3, 2004 (see 70 FR 58, 

January 3, 2005). Kosmos was emitting 

at 2.1–4.1 pptcp NOX in 2003 under the 

6.6 limit due to the operational changes 

made in March 2003. To prevent 

Kosmos from changing the cement kiln’s 

operation and increasing emissions in 

2004 or later up to 6.6, a revised Board 

Order with the lower emission rate of 

4.755 pptcp NOX was adopted by the 

Board on May 3, 2004, and will become 

part of the federally enforceable 

Kentucky SIP as of the effective date of 

this final action. Kosmos’ cement kiln 

cannot emit up to 6.6 pptcp NOX

without violating the new SIP limit for 

Kosmos of 4.755 pptcp NOX, and 

therefore, the proposed calculation 

procedure remains valid. 

Comment 10: The commenter 

expressed that eliminating the VET 

Program may increase cost of a program 

restart should the area’s control strategy 

be required to use an I/M program if 

Louisville is classified as a moderate 8-

hour ozone nonattainment area. 

Response 10: EPA acknowledges that 

there would be additional costs to 

restart the VET Program since it has 

been terminated. The Louisville area is 

designated nonattainment under subpart 

1, ‘‘Nonattainment Areas in General,’’ of 

Title I Part D of the Clean Air Act for 

the 8-hour ozone NAAQS. An I/M 

program is not required for these 

subpart 1 nonattainment areas. The 

statutory authority to implement an I/M 

program remains intact in Kentucky 

Revised Statute (KRS) 77.320, 

‘‘Elimination of vehicle emissions 

testing program in county containing 

consolidated local government—

Determination of need for program,’’

and in KRS 77.180, ‘‘Orders, rules and 

regulations.’’ KRS 77.180 is the cited 

statute in the VET Program regulations 

now located in the contingency portion 

of the Louisville 1-Hour Ozone 

Maintenance Plan as of the effective 

date of this action. Thus, should the 

area become classified moderate and 

need to implement I/M, it would 

already have the statutory authority to 

do so. (To access KRS 77.320 and KRS 

77.180 within Chapter 77, ‘‘Air 

Pollution Control,’’ access the following 

Web site: http://lrc.ky.gov/KRS/077–00/

CHAPTER.HTM.) 

Comment 11: The commenter states 

that the law that repealed the VET 

Program, KRS 77.320, should be 

repealed. The commenter suggests that 

the VET Program was the only effective 

means of air management in the 

metropolitan area and should be 

reinstated. 

Response 11: The LMAPCD adopted 

several regulatory programs that helped 

the area to attain the 1-hour ozone 

NAAQS. The Louisville area has had no 

1-hour ozone NAAQS exceedances 

since the area was redesignated to 

attainment in a final action published 

October 23, 2001 (66 FR 53665). 

Louisville was able to demonstrate 

continued maintenance of the 1-hour 

ozone NAAQS without the I/M program. 

In addition, the provision of substitute 

reductions from the Kosmos cement kiln 

will prevent increases in ambient air 

levels pending development of 8-hour 

and PM2.5 attainment demonstrations. 

The 8-hour ozone and PM2.5 control 

strategy SIP revisions for the area due in 

2007 and 2008, respectively, will 

identify control strategies to help the 

area meet these NAAQS as 

expeditiously as practicable. These SIP 

revisions will include a demonstration 

that the selected control measures will 

timely achieve the relevant NAAQS. 

Comment 12: The commenter states 

that in addition to businesses, each 

individual who drives should be 

responsible for cleaner, healthier air. 

The commenter suggests that the VET 

Program could be required only every 

other year and exclude cars less than 

five years old to reduce the burden. 

Response 12: Under Jefferson 

County’s present 8-hour ozone and 

PM2.5 nonattainment classifications, and 

1-hour ozone maintenance status, 

Kentucky has discretion which control 

measures to apply to help the County 

attain and maintain these NAAQS. So 

long as the area meets all applicable 

CAA requirements, EPA cannot dictate 

that each individual residing in the area 

must personally contribute to required 

emissions reductions. 

Comment 13: Mobile source 

emissions comprise a significant 

component of the emissions profile for 

the county, and the VET program has 

been responsible for moderating the 

effects of the increase in vehicle miles 

traveled in this region, and in reducing 

the contribution of ozone precursors 

from the mobile sector. For this reason, 

the proposed repeal of the VET Program 

is troubling. 

Response 13: The Kentucky portion of 

the Louisville 1-Hour Ozone 

Maintenance Plan provides emissions 

data and emissions projections covering 

the year 2005 for this maintenance area. 

The Kentucky portion of the Louisville 

1-Hour Ozone Maintenance Area is 

comprised of Jefferson County, and 

portions of Bullitt and Oldham Counties 

in Kentucky. EPA acknowledges that 

projected 2005 emissions from mobile 

sources contribute almost one-third of 

the VOC emissions and nearly one-half 

of the NOX emissions in the Kentucky 

portion of the Louisville area. The 

equivalent emissions reductions from 

Kosmos that are replacing those 

previously gained from the VET 

Program, in addition to meeting all 

other applicable requirements for the 

area, help to ensure that the current air 

quality is maintained. The 8-hour ozone 

and PM2.5 attainment demonstrations 

due in 2007 and 2008, respectively, will 

address, as appropriate, any needed 

mobile source controls for the 

designated nonattainment areas under 

these standards. See also Response #1.

Comment 14: When will the public 

review and formal comment period 

begin on the January 3, 2005, proposed 

rule (70 FR 53)? 

Response 14: The public comment 

period on the proposed rulemaking was 

from January 3, 2005 to February 2, 

2005, as stated in the proposed 

rulemaking published January 3, 2005, 

at 70 FR 53. 

Comment 15: The commenter notes 

that the problems that come with global 

warming and pollution are not going to 

go away anytime soon, and that these 

issues will only get worse until action 

is taken. 

Response 15: This comment is not 

relevant nor specific to issues contained 

in the January 3, 2005, proposed rule 

(70 FR 53). 

Comment 16: The commenter notes 

that the United States of America needs 

to do much more to clean up the air and 

atmosphere to protect the ozone layer 

from getting worse. The commenter also 

states that the country’s per capita 

output of air pollutants and many other 

environmentally damaging pollutants is 

‘‘shamefully high.’’

Response 16: This comment is not 

relevant nor specific to issues contained 

in the January 3, 2005, proposed rule 

(70 FR 53). 

Comment 17: The commenter states 

that with respect to Louisville Gas & 

Electric (LG&E), it is inappropriate to 

claim credit for reductions achieved by 

the company as a result of its 

compliance strategy with the NOX SIP 

call, since those reductions were made 

in response to existing legal obligation 

and would have been achieved 

irrespective of any District action to 

execute an ‘‘Agreement.’’ The 

commenter also notes that substituting 

LG&E emissions of NOX for lost VOC 

and NOX emissions from motor vehicles 

is not equivalent because LG&E has 

presented modeling in the past 

demonstrating that NOX emissions from 

the LG&E stacks did not contribute 

appreciably to the local ozone problem 

in the Louisville area. 

Response 17: The comments received 

regarding emissions reductions from 

LG&E are not relevant nor specific to 

Federal Register / Vol. 70, No. 95 / Wednesday, May 18, 2005 / Rules and Regulations 28435

issues contained in the January 3, 2005, 

proposed rule (70 FR 53). 

IV. Final Action 

EPA is approving a revision to the 

Jefferson County, Kentucky portion of 

the Kentucky SIP which moves 

Regulations 8.01, 8.02, and 8.03 from 

the regulatory portion of the Jefferson 

County part of the Kentucky SIP to the 

contingency measures section of the 

Kentucky portion of the Louisville 1-

Hour Ozone Maintenance Plan. EPA is 

also approving a source-specific SIP 

revision amending the NOX emission 

rate for Kosmos Cement Company’s 

cement kiln. 

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 

(Public Law 104–4). 

This rule also does not have tribal 

implications because it will not have a 

substantial direct effect on one or more 

Indian tribes, on the relationship 

between the Federal Government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian tribes, 

as specified by Executive Order 13175 

(65 FR 67249, November 9, 2000). This 

action also does not have Federalism 

implications because it does not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132 (64 FR 43255, 

August 10, 1999). This action merely 

approves a state rule implementing a 

Federal standard, and does not alter the 

relationship or the distribution of power 

and responsibilities established in the 

Clean Air Act. This rule also is not 

subject to Executive Order 13045 

‘‘Protection of Children from 

Environmental Health Risks and Safety 

Risks’’ (62 FR 19885, April 23, 1997), 

because it is not economically 

significant. 

In reviewing SIP submissions, EPA’s 

role is to approve state choices, 

provided that they meet the criteria of 

the Clean Air Act. In this context, in the 

absence of a prior existing requirement 

for the State to use voluntary consensus 

standards (VCS), EPA has no authority 

to disapprove a SIP submission for 

failure to use VCS. It would thus be 

inconsistent with applicable law for 

EPA, when it reviews a SIP submission, 

to use VCS in place of a SIP submission 

that otherwise satisfies the provisions of 

the Clean Air Act. Thus, the 

requirements of section 12(d) of the 

National Technology Transfer and 

Advancement Act of 1995 (15 U.S.C. 

272 note) do not apply. This rule does 

not impose an information collection 

burden under the provisions of the 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.). 

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). 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by July 18, 2005. 

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 section 

307(b)(2).)

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Intergovernmental relations, Nitrogen 

dioxide, Ozone, Particulate matter, 

Reporting and recordkeeping 

requirements, Volatile organic 

compounds.

Dated: May 11, 2005. 

J.I. Palmer, Jr., 

Regional Administrator, Region 4.

■ Part 52 of chapter I, title 40, Code of 

Federal Regulations, is amended as 

follows:

PART 52—[AMENDED]

■ 1. The authority citation for part 52 

continues to read as follows:

Authority: 42.U.S.C. 7401 et seq.

Subpart S—Kentucky

■ 2. Section 52.920 is amended as 

follows:

■ a. in paragraph (c) by removing from 

Table 2, Regulation 8.01 titled, ‘‘Mobile 

Source Emissions Control 

Requirements,’’ Regulation 8.02 titled, 

‘‘Vehicle Emissions Testing Procedure,’’

and Regulation 8.03 titled, ‘‘Commuter 

Vehicle Testing Requirements,’’

■ b. in paragraph (d) by revising the 

entry for ‘‘Board Order Kosmos Cement 

Company,’’ and

■ c. in paragraph (e) by revising the entry 

for ‘‘Louisville 1-hour Ozone 

Maintenance Plan’’ to read as follows:

§ 52.920 Identification of plan.

* * * * *

(d) * * *

28436 Federal Register / Vol. 70, No. 95 / Wednesday, May 18, 2005 / Rules and Regulations 

EPA-APPROVED KENTUCKY SOURCE—SPECIFIC REQUIREMENTS

Name of source Permit number 

State

effective 

date 

EPA

approval 

date 

Explanation 

* * * * * * * 

Board Order Kosmos Cement Company.NOX RACT Plan 05/03/04 ...................................................................... 05/03/04 05/18/05 

[Insert 

first 

page 

number 

of publication] 

* * * * * * * 

(e) * * *

EPA-APPROVED KENTUCKY NON-REGULATORY PROVISIONS

Name of regulatory SIP

provision Applicable geographic or nonattainment area 

State

submittal 

date/effective date 

EPA

approval 

date 

Explanation 

* * * * * * * 

Louisville 1-Hour Ozone 

Maintenance Plan.

Jefferson County and portions of Bullitt and Oldham Counties ............. 11/1/03 05/18/05 

[Insert 

first 

page 

number 

of publication] 

* * * * * * * 

[FR Doc. 05–9905 Filed 5–17–05; 8:45 am] 

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION 

AGENCY

40 CFR Part 80

[OPP –2005–0109; FRL–7711–4] 

Dimethyl Ether; Exemption from the 

Requirement of a Tolerance

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Final rule.

SUMMARY: This regulation establishes an 

exemption from the requirement of a 

tolerance for residues of dimethyl ether 

or methane, oxybis- as an inert 

ingredient (propellant) in pesticide 

formulations applied to growing crops 

or to raw agricultural commodities 

(RAC) after harvest. The DuPont 

Company, DuPont Fluoroproducts 

submitted a petition to EPA under the 

Federal Food, Drug, and Cosmetic Act 

(FFDCA), as amended by the Food 

Quality Protection Act of 1996 (FQPA), 

requesting an exemption from the 

requirement of a tolerance. This 

regulation eliminates the need to 

establish a maximum permissible level 

for residues of dimethyl ether.

DATES: This regulation is effective May 

18, 2005. Objections and requests for 

hearings must be received on or before 

July 18, 2005.

ADDRESSES: To submit a written 

objection or hearing request follow the 

detailed instructions as provided in 

Unit XIV. of the SUPPLEMENTARY

INFORMATION. EPA has established a 

docket for this action under Docket 

identification (ID) number OPP–2005–

0109. All documents in the docket are 

listed in the EDOCKET index at

http://www.epa.gov/edocket. 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 in EDOCKET or in hard 

copy at the Public Information and 

Records Integrity Branch (PIRIB), Rm. 

119, Crystal Mall #2, 1801 S. Bell St., 

Arlington, VA. This docket facility is 

open from 8:30 a.m. to 4 p.m., Monday 

through Friday, excluding legal 

holidays. The docket telephone number 

is (703) 305–5805.

FOR FURTHER INFORMATION CONTACT:

Kathryn Boyle, Registration Division 

(7505C), Office of Pesticide Programs, 

Environmental Protection Agency, 1200 

Pennsylvania Ave., NW., Washington, 

DC 20460–0001; telephone number: 

(703) 305–6304; e-mail address: 

boyle.kathryn@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this Action apply to Me?

You may be potentially affected by 

this action if you are an agricultural 

producer, food manufacturer, or 

pesticide manufacturer. Potentially 

affected entities may include, but are 

not limited to: • Crop production (NAICS 111) • Animal production (NAICS 112) • Food manufacturing (NAICS 311) • Pesticide manufacturing (NAICS 

32532)

This listing is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

affected by this action. Other types of