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Proposed Rule

Partial Approval and Partial Disapproval of Air Quality Implementation Plans; California; San Joaquin Valley; Reasonably Available Control Technology for Ozone

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Information about this document as published in the Federal Register.

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AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

EPA is proposing to partially approve and partially disapprove a revision to the San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD or SJV) portion of the California State Implementation Plan (SIP). Specifically, we propose to partially approve and partially disapprove SJVUAPCD's “Reasonably Available Control Technology (RACT) Demonstration for Ozone State Implementation Plan (SIP)” (RACT SIP) for the 8-hour ozone National Ambient Air Quality Standard (NAAQS) under the Clean Air Act as amended in 1990 (CAA or the Act). We are taking comments on this proposal and plan to follow with a final action.

DATES:

Any comments must arrive by October 11, 2011.

ADDRESSES:

Submit comments, identified by docket number EPA-R09-OAR-2011-0723, by one of the following methods:

1. Federal eRulemaking Portal: http://www.regulations.gov. Follow the on-line instructions.

2. E-mail: steckel.andrew@epa.gov.

3. Mail or deliver: Andrew Steckel (Air-4), U.S. Environmental Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901.

Instructions: All comments 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 Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Information that you consider CBI or otherwise protected should be clearly identified as such and should not be submitted through http://www.regulations.gov or e-mail. http://www.regulations.gov is an “anonymous access” system, and EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send e-mail directly to EPA, your e-mail address will be automatically captured and included as part of the public comment. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.

Docket: Generally, documents in the docket for this action are available electronically at http://www.regulations.gov and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed at http://www.regulations.gov, some information may be publicly available only at the hard copy location (e.g., copyrighted material, large maps), and some may not be publicly available in either location (e.g., CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section.

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FOR FURTHER INFORMATION CONTACT:

Stanley Tong, EPA Region IX, (415) 947-4122, tong.stanley@epa.gov.

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SUPPLEMENTARY INFORMATION:

Throughout this document, “we,” “us,” and “our” refer to EPA.

Table of Contents

I. The State's Submittal

A. What document did the State submit?

B. Are there other versions of this document?

C. What is the purpose of the submitted RACT SIP?

II. EPA's Evaluation and Action

A. How is EPA evaluating the RACT SIP?

B. Does the RACT SIP meet the evaluation criteria?

C. What are the deficiencies?

D. Proposed Action and Public Comment

III. Statutory and Executive Order Reviews

I. The State's Submittal

A. What document did the State submit?

Table 1 lists the document proposed for partial approval and partial disapproval with the date that it was adopted and submitted by the SJV.

Table 1—Submitted Document

Local agencyDocumentAdoptedSubmitted
SJVUAPCDReasonably Available Control Technology (RACT) Demonstration for Ozone State Implementation Plan (SIP)04/16/200906/18/2009

On December 11, 2009, EPA determined that the submittal for SJV's RACT SIP met the completeness criteria in 40 CFR part 51 Appendix V, which must be met before formal EPA review.

B. Are there other versions of this document?

On October 8, 2004, SJV adopted its “Extreme Ozone Attainment Demonstration Plan” for the 1-hour ozone standard (2004 SIP). The plan was amended on October 20, 2005 and included 1-hour ozone RACT provisions. On September 5, 2008, the State withdrew the RACT provisions from the 2004 SIP and indicated SJV would satisfy its RACT obligation for the 1-hour ozone standard with a revised 8-hour ozone RACT SIP. Subsequent to the State's withdrawal of the RACT element, EPA published a Finding of Failure to Submit a required SIP revision for the 1-hour ozone standard (74 FR 3442, January 21, 2009). In this action, we indicated that first, offset sanctions as identified in CAA section 179(b) would apply, and next, highway funding sanctions would apply if the State failed to submit a SIP revision which included all required RACT rules and the supporting RACT demonstrations to meet CAA sections 172(c)(1), 182(b)(2), and 182(f) within the time frames specified in the CAA. See 74 FR at 3443. On June 18, 2009, the California Air Resources Board (CARB) submitted a revised RACT SIP demonstration for the 8-hour ozone standard. EPA's December 11, 2009 completeness determination turned off the sanctions clocks.

There is no previous version of this document in the SJV portion of the California SIP, although the SJV adopted Start Printed Page 55843a prior version of the RACT SIP on August 17, 2006, and submitted it to us on January 31, 2007.[1] We are proposing to act on only the most recently submitted version, but we have also reviewed materials provided with the 2007 submittal.

C. What is the purpose of the submitted RACT SIP?

Volatile Organic Compounds (VOC) and Oxides of Nitrogen (NOX) help produce ground-level ozone, or smog, which harms human health and the environment. Section 110(a) of the CAA requires States to submit enforceable regulations that control VOC and NOX emissions. Sections 182(b)(2) and (f) require that SIPs for ozone nonattainment areas classified as moderate or above include implementation of RACT for any source covered by a Control Techniques Guidelines (CTG) document and for any major source of VOC or NOX. The SJV is subject to these requirements because it is designated and classified as an extreme ozone nonattainment area for the 8-hour ozone NAAQS (40 CFR 81.305). Therefore, SJVUAPCD must adopt RACT level controls for all sources covered by a CTG document and for all major non-CTG sources of VOC or NOX.

Section IV.G. of the preamble to EPA's final rule to implement the 8-hour ozone NAAQS (70 FR 71612, November 29, 2005) discusses RACT SIP requirements. It states in part that where a RACT SIP is required, States implementing the 8-hour ozone standard must assure that RACT is met, either through a certification that previously required RACT controls represent RACT for 8-hour implementation purposes or through a new RACT determination. Since RACT may change over time as new technology becomes available or the cost of existing technology decreases, States must use the latest information available to demonstrate that their ozone SIPs continue to require RACT based on the current availability of technically and economically feasible controls. 70 FR at 71655. The submitted RACT SIP provides SJV's analyses of the District's compliance with the section 182 RACT requirements for both the 1-hour and 8-hour ozone NAAQS. EPA's technical support document (TSD) has more information about SJV's analyses.

II. EPA's Evaluation and Action

A. How is EPA evaluating the RACT SIP?

The rules and guidance documents that we used to evaluate SJV's RACT SIP include the following:

1. “Final Rule to Implement the 8-Hour Ozone National Ambient Air Quality Standard—Phase 2” (70 FR 71612; November 29, 2005).

2. “State Implementation Plans, General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990” (57 FR 13498; April 16, 1992).

3. Enforceability—Section 110(a) of the CAA requires enforceable emission limitations and other control measures. Several EPA guidance documents are used to evaluate rule enforceability, including Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations: Clarification to Appendix D of November 24, 1987 Federal Register, May 25, 1988 (“The Blue Book”), and EPA Region IX's Guidance Document for Correcting Common VOC and Other Rule Deficiencies, August 21, 2001 (the “Little Bluebook”).

4. “State Implementation Plans; Nitrogen Oxides Supplement to the General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990” (57 FR 55620, November 25, 1992) (“the NOX Supplement”).

5. Memorandum from William T. Harnett to Regional Air Division Directors (May 18, 2006), “RACT Qs & As—Reasonably Available Control Technology (RACT) Questions and Answers”.

6. RACT SIPs, Letter dated March 9, 2006 from EPA Region IX (Andrew Steckel) to CARB (Kurt Karperos) describing Region IX's understanding of what constitutes a minimally acceptable RACT SIP.

7. RACT SIPs, Letter dated April 4, 2006 from EPA Region IX (Andrew Steckel) to CARB (Kurt Karperos) listing EPA's current CTGs, ACTs, and other documents which may help to establish RACT.

8. Comment letter dated May 18, 2006 from EPA Region IX (Andrew Steckel) to SJV (George Heinen) on the 8-hour Ozone Reasonably Available Control Technology—State Implementation Plan (RACT SIP) Analysis, draft staff report dated April 18, 2006.

9. Comment letter dated June 29, 2006 from EPA Region IX (Andrew Steckel) to SJV (George Heinen) on the 8-hour Ozone Reasonably Available Control Technology—State Implementation Plan (RACT SIP) Analysis, final draft staff report dated June 15, 2006.

10. Comment letter dated February 7, 2008 from EPA Region IX (Andrew Steckel) to SJV (George Heinen) on the 8-hour Ozone Reasonably Available Control Technology—State Implementation Plan (RACT SIP) Analysis, draft staff report dated December 17, 2007.

11. Comment letter dated April 1, 2009 from EPA Region IX (Andrew Steckel) to SJV (Errol Villegas) on the 8-hour Ozone Reasonably Available Control Technology—State Implementation Plan (RACT SIP) Analysis, for the April 16, 2009 Hearing.

B. Does the RACT SIP meet the evaluation criteria?

SJV's staff report includes a table (Table 2-1) which lists all the CTG source categories and matches those CTG categories with the corresponding District rule that implements RACT. Given its designation and classification as an extreme ozone nonattainment area, SJV is also required to implement RACT for all “major stationary sources” of VOC or NOXi.e., sources that emit or have the potential to emit at least 10 tpy (CAA 182(e)). SJV staff searched for all source categories covered by a CTG and for sources that emit or have the potential to emit at least 10 tpy of VOC or NOX.

EPA's review of CARB's emissions inventory Web site indicated the District had identified all major sources except for potentially four sources. Further discussion with CARB and the District indicates that three of these facilities are subject to permit conditions limiting their emissions to below 10 tpy, and the fourth does not have VOC emission sources. See TSD at 8.

SJV identified two CTG categories (Shipbuilding and Ship Repair Operations—surface coating; and Manufacture of Synthesized Pharmaceutical Products), for which no sources covered by the CTGs currently operate in SJV. Further discussion with the District revealed a third CTG category (Manufacture of Pneumatic Rubber Tires), for which no covered sources operate in SJV. SJV has adopted and submitted, through CARB, negative declarations for all three of these CTG source categories.

SJV's RACT SIP analysis is extensive. For the most part, the District compared its rules against Federal and state regulations and to similar rules in the South Coast Air Quality Management District, Bay Area Air Quality Management District, Sacramento Metropolitan Air Quality Management District, and Ventura County Air Pollution Control District. In a few cases, the District concluded that a Start Printed Page 55844recently approved SIP rule fulfills RACT because EPA evaluated it for RACT. We note that EPA's approval of a rule into the SIP does not necessarily mean that we have approved it as satisfying RACT—for example, EPA sometimes approves a rule only as a SIP strengthening action (e.g., to update definitions, add test methods, or remove exemptions) or only to incorporate non-substantive changes.

We have independently evaluated each of the SJV rules and associated analysis to determine whether the RACT SIP meets CAA Section 182 RACT requirements.

Specifically, we divided SJV's rules into the following categories and evaluated each rule for compliance with RACT requirements.

Group 1: Rules that EPA recently approved or proposed to approve as implementing RACT.

Group 2: Rules for which we are not aware of more stringent controls that are reasonably available.

Group 3: Rules that EPA has disapproved or proposed to disapprove, in full or in part, because SJV has failed to demonstrate they fully satisfy current RACT requirements.

We identify below the rules in Group 3. Our TSD contains more detailed analysis.

C. What are the deficiencies?

The District has not demonstrated that the following rules fully satisfy current RACT requirements. SJV is working to address our comments and has held or is scheduled to hold public workshops to amend the rules or provide additional analysis. Several of these rules were recently amended and submitted to EPA.

1. Rule 4352—Solid Fuel Fired Boilers, Steam Generators, and Process Heaters—final limited approval/disapproval October 1, 2010 (75 FR 60623). District workshop tentatively planned for October 2011.

2. Rule 4401—Steam Enhanced Crude Oil Production Wells—final limited approval/disapproval January 26, 2010 (75 FR 3996). Amendments submitted to EPA on July 28, 2011.

3. Rule 4402—Crude Oil Production Sumps—final limited approval/disapproval July 7, 2011 (76 FR 39777). District workshop tentatively planned for October 2011.

4. Rule 4605—Aerospace Assembly and Component Coating Operations—final limited approval/disapproval January 26, 2010 (75 FR 3996). Amendments submitted to EPA on July 28, 2011.

5. Rule 4625—Wastewater Separators—final limited approval/disapproval July 7, 2011 (76 FR 39777). District workshop tentatively planned for October 2011.

6. Rule 4682—Polystyrene, Polyethylene, And Polypropylene Products Manufacturing—proposed disapproval July 15, 2011 (76 FR 41745). District workshop tentatively planned for October 2011.

7. Rule 4684—Polyester Resin Operations—final limited approval/disapproval January 26, 2010 (75 FR 3996). Amendments adopted August 18, 2011, not yet submitted to EPA.

In addition, EPA is currently evaluating three rules not included in Groups 1, 2, or 3. These rules are listed below and identified under Group 4 in our TSD as rules for which we have not yet made a RACT determination. EPA will determine whether these rules satisfy RACT through separate rulemaking actions, subject to public notice and comment.

1. Rule 4566—Compost—adopted August 18, 2011, not yet submitted to EPA.

2. Rule 4694—Wine Fermentation and Storage Tanks—amendments adopted August 18, 2011, not yet submitted to EPA.

3. Fumigant Volatile Organic Compound Regulations—California Department of Pesticide Regulation—submitted August 2, 2011.

D. EPA's Proposed Actions and Potential Consequences

1. EPA's Proposed Approvals and Disapprovals

For the reasons discussed above and explained more fully in the TSD, EPA proposes to partially approve and partially disapprove SJVUAPCD's RACT SIP submitted June 18, 2009. Specifically, under CAA section 110(k)(3), we propose to approve those elements of the RACT SIP that pertain to the SJV rules identified in Groups 1 or 2, which EPA has either fully approved or proposed to fully approve as satisfying the RACT requirements of CAA sections 182(b)(2) and (f).

Also under CAA section 110(k)(3), we propose to disapprove those elements of the RACT SIP that pertain to the SJV rules identified in Group 3, which EPA has either disapproved or proposed to disapprove in whole or in part, for failure to satisfy RACT requirements, and those elements of the RACT SIP that pertain to the rules in Group 4, for which EPA has not yet made a RACT determination. We will not finalize this partial disapproval, however, with respect to any rule that we fully approve as satisfying RACT before finalizing action on this RACT SIP.

We will accept comments from the public on this proposed partial approval and partial disapproval for the next 30 days.

2. CAA Consequences of a Final Disapproval

EPA is committed to working with CARB and the District to resolve the remaining RACT deficiencies identified in this proposed action. However, should we finalize the proposed partial disapproval of the RACT SIP, the offset sanction in CAA section 179(b)(2) would apply in the SJV ozone nonattainment area 18 months after the effective date of such final disapproval. The highway funding sanctions in CAA section 179(b)(1) would apply in the area six months after the offset sanction is imposed. Neither sanction will be imposed if California submits and we approve prior to implementation of sanctions, SIP revisions that correct the deficiencies identified in our proposed action.

In addition, CAA section 110(c)(1) provides that EPA must promulgate a Federal Implementation Plan (FIP) within two years after finding that a State has failed to make a required submission or disapproving a State implementation plan submission in whole or in part, unless EPA approves a SIP revision correcting the deficiencies within that two-year period. EPA previously found that the State had failed to submit a plan revision for SJV addressing the CAA section 182 RACT requirements for the 1-hour ozone standard, starting a FIP clock that expired on January 21, 2011. See 74 FR 3442 (January 21, 2009). EPA is currently in litigation with environmental groups concerning this previous FIP deadline.

III. Statutory and Executive Order Reviews

Under the CAA, the Administrator is required to approve a SIP submittal that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submittals, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. This action merely proposes to partially approve and partially disapprove State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law.

A. Executive Order 12866, Regulatory Planning and Review

This proposed action is not a “significant regulatory action” under the terms of Executive Order (EO) 12866 Start Printed Page 55845(58 FR 51735, October 4, 1993) and is therefore not subject to review under the EO.

B. Paperwork Reduction Act

This proposed action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq, because this proposed partial approval and partial disapproval under section 110 and subchapter I, part D of the Clean Air Act will not in-and-of itself create any new information collection burdens but simply proposes to disapprove certain State requirements submitted for inclusion in the SIP. Burden is defined at 5 CFR 1320.3(b).

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions. For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of today's proposed rule on small entities, I certify that this proposed action will not have a significant impact on a substantial number of small entities. This proposed rule does not impose any requirements or create impacts on small entities. This proposed partial approval and partial disapproval of the SIP under CAA section 110 and subchapter I, part D of the Clean Air Act will not in-and-of itself create any new requirements but simply disapproves certain State requirements submitted for inclusion in the SIP. Accordingly, it affords no opportunity for EPA to fashion for small entities less burdensome compliance or reporting requirements or timetables or exemptions from all or part of the rule. The fact that the Clean Air Act prescribes that various consequences (e.g., higher offset requirements) may or will flow from a final disapproval does not mean that EPA either can or must conduct a regulatory flexibility analysis for this action. Therefore, this proposed action will not have a significant economic impact on a substantial number of small entities.

We continue to be interested in the potential impacts of this proposed rule on small entities and welcome comments on issues related to such impacts.

D. Unfunded Mandates Reform Act

This proposed action contains no Federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538 for State, local, or Tribal governments or the private sector. EPA has determined that the proposed disapproval action does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or Tribal governments in the aggregate, or to the private sector. This action proposes to partially approve and partially disapprove pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or Tribal governments, or to the private sector, result from this action.

E. Executive Order 13132, Federalism

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that 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.”

This proposed action does not have federalism implications. It will 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, because it merely proposes to partially approve and partially disapprove certain State requirements submitted for inclusion in the SIP and does not alter the relationship or the distribution of power and responsibilities established in the CAA. Thus, Executive Order 13132 does not apply to this action.

F. Executive Order 13175, Coordination With Indian Tribal Governments

This proposed action does not have Tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP EPA is proposing to partially approve and partially disapprove would not apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on Tribal governments or preempt Tribal law. Thus, Executive Order 13175 does not apply to this action.

G. Executive Order 13045, Protection of Children From Environmental Health Risks and Safety Risks

EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the EO has the potential to influence the regulation. This proposed action is not subject to EO 13045 because it is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997). This proposed partial approval and partial disapproval of the SIP under section 110 and subchapter I, part D of the Clean Air Act will not in and of itself create any new regulations but simply disapproves certain State requirements submitted for inclusion in the SIP.

H. Executive Order 13211, Actions That Significantly Affect Energy Supply, Distribution, or Use

This proposed rule is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.Start Printed Page 55846

The EPA believes that this proposed action is not subject to requirements of Section 12(d) of NTTAA because application of those requirements would be inconsistent with the CAA.

J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Population

Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.

EPA lacks the discretionary authority to address environmental justice in this proposed rule. In reviewing SIP submittals, EPA's role is to approve or disapprove State choices, based on the criteria of the CAA. This action merely proposes to approve certain State requirements submitted for inclusion in the SIP under CAA section 110 and subchapter I, part D and to disapprove others, and will not in and of itself create any new requirements. Accordingly, it does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898.

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List of Subjects in 40 CFR Part 52

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

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Dated: August 31, 2011.

Jared Blumenfeld,

Regional Administrator, Region IX.

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Footnotes

1.  The SJV also revised the RACT SIP on December 28, 2007 to lower the major source threshold to 10 tons per year (tpy) and to address four new Control Techniques Guidelines (CTG) documents. This revision was not submitted to EPA. See SJV 2009 RACT SIP dated April 16, 2009 pg. 1-3.

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[FR Doc. 2011-23151 Filed 9-8-11; 8:45 am]

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