[Federal Register Volume 67, Number 161 (Tuesday, August 20, 2002)]
[Rules and Regulations]
[Pages 53882-53886]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-21195]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[FRL-7262-3]


Final Effective Date Modification for the Determination of 
Nonattainment as of November 15, 1999, and Reclassification of the 
Baton Rouge Ozone Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rulemaking; delay of effective date.

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SUMMARY: On June 24, 2002, EPA published a final rule entitled 
``Determination of Nonattainment as of November 15, 1999, and 
Reclassification of the Baton Rouge Ozone Nonattainment Area'' (67 FR 
42688). The effective date for the final rule was August 23, 2002. At 
the same time, EPA also published its proposal to delay the effective 
date of the determination and reclassification until October 4, 2002. 
The 30-day comment period on our June 24, 2002, proposal to extend the 
effective date has ended and EPA received twenty-seven comment letters 
of which twenty-six comment letters expressed support for the delayed 
effective date. Today EPA is finalizing the modification of the 
effective date of our June 24, 2002, rule from August 23, 2002, until 
October 4, 2002. Section 553(d) of the Administrative Procedure Act 
generally provides that rules may not take effect earlier than 30 days 
after they are published in the Federal Register. However, if an Agency 
identifies a good cause, section 553(d)(3) allows a rule to take effect 
earlier, provided that the Agency publishes its reasoning in the final 
rule. EPA is making this action effective immediately because the 
effective date of the underlying nonattainment determination and 
reclassification is imminent, and delaying the effective date of this 
action would negate the purpose of this rule. In addition, EPA finds 
good cause for making this action effective immediately because it 
relieves a restriction that would otherwise go into effect.

DATES: As of August 20, 2002, the effective date of the final rule 
amending 40 CFR part 81 published at 67 FR 42688, June 24, 2002, is 
delayed for six weeks, from August 23, 2002, to a new effective date of 
October 4, 2002. The amendment to 40 CFR part 81 in this final rule is 
effective October 4, 2002.

ADDRESSES: Copies of documents relevant to this action area available 
for public inspection during normal business hours at the Environmental 
Protection Agency, Region 6, Air Planning Section (6PD-L), 1445 Ross 
Avenue, Dallas, Texas 75202-2733; and the Louisiana Department of 
Environmental Quality (LDEQ), 7920 Bluebonnet Boulevard, Baton Rouge, 
Louisiana 70884. Please contact the appropriate office at least 24 
hours in advance.

FOR FURTHER INFORMATION CONTACT: Ms. Maria L. Martinez, EPA Region 6, 
1445 Ross Avenue, Dallas, Texas 75202-2733, telephone (214) 665-2230.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we, us, 
or our'' is used, we mean EPA. Throughout this document, whenever 
``Baton Rouge Area,'' ``Baton Rouge Nonattainment Area,'' or ``Baton 
Rouge Ozone Nonattainment Area'' is used, we mean the area which 
includes the parishes of Ascension, East Baton Rouge, Iberville, 
Livingston, and West Baton Rouge in the State of Louisiana.

Background

    In a Judgment entered on March 7, 2002, the United States District 
Court for the Middle District of Louisiana, ordered EPA to determine, 
by June 5, 2002, whether the Baton Rouge area had attained the 
applicable ozone standard under the Clean Air Act (hereinafter referred 
to as the CAA or Act). Louisiana Environmental Action Network (LEAN) v. 
Whitman, 00-879-A. The Court also ordered EPA to publish in the Federal 
Register a notice of a final action reflecting both the determination 
and any reclassification of the area required as a result of the 
determination. The Court also held that it was not acting to restrict 
the effective date that EPA selects for its action. See the Court's 
February 27, 2002, Ruling.\1\ EPA published its determination on June 
24, 2002, in response to the Court's order.
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    \1\ For additional information on other court rulings on the 
issue of an effective date for such action, see, Sierra Club v. 
Browner, 130 F. Supp. 2d 78 (D.D.C. 2001), aff'd., 285 F. 3d 63 
(D.C. Cir. 2002).
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    On June 24, 2002, EPA concurrently published its proposal to delay 
the effective date of the determination and reclassification from 
August 23, 2002, until October 4, 2002 (67 FR 42697). EPA has 
determined that the delay of the effective date of the determination of 
nonattainment and reclassification is necessary to allow regulated 
entities in the Baton Rouge area time to prepare for the new 
requirements that are applicable to severe nonattainment areas. In the 
June 24, 2002, proposal, EPA noted that on the effective date of the 
reclassification to severe, the major stationary source threshold for 
the Baton Rouge area will be reduced from 50 tons of emissions on an 
annual basis to 25 tons. Thus a number of facilities with volatile 
organic compounds (VOCs) or nitrogen oxide (NOX) emission 
levels between 25 and 50 tons per year may become subject to major 
source requirements for the first time.\2\ Extending the effective date 
of our June 24, 2002, determination to October 4, 2002, will provide 
adequate time for the facilities affected by the reclassification to 
comply with the new technical requirements. EPA has determined that 
sources possibly subject to these new requirements should have 
additional time to prepare for the impact of these requirements. EPA's 
decision to extend the effective date for this reason is supported by a 
number of commenters.
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    \2\ See section 182(d) in conjunction with section 182(f) of the 
Act for the severe area major source thresholds for these 
pollutants.
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    In addition, as EPA stated in its June 24, 2002, proposal, we will 
continue to work on completing a separate rulemaking on the issue of 
whether the Baton Rouge area should be granted an extension of its 
attainment date pursuant to EPA's ``Guidance on Extension of Air 
Quality Attainment Dates for Downwind Transport Areas'' Federal 
Register document (64 FR 14441, March 25, 1999) (hereinafter referred 
to as EPA's extension policy), and remain classified as a serious 
nonattainment area. By taking this final action to extend the effective 
date for the nonattainment determination, EPA is in a position to take 
final action on the proposal to extend the attainment date for the 
Baton Rouge area before the nonattainment determination becomes 
effective. Section 181(b)(2)(A) of the Act

[[Page 53883]]

requires that EPA determine attainment within six months of the 
attainment date. If the attainment date were extended, there would be a 
new deadline for the determination. Thus, if the attainment date were 
extended, EPA's obligation to determine attainment would not yet have 
occurred. If EPA were to extend the attainment date for the Baton Rouge 
area, EPA would withdraw the published nonattainment determination and 
the consequent reclassification, which would not yet have gone into 
effect.
    In light of the fact that Louisiana has submitted its final SIP 
submissions, EPA believes that it will be able to complete rulemaking 
on the attainment date extension request by October 4, 2002. On August 
2, 2002, EPA published its proposal to: (1) Approve the Baton Rouge 
area's ozone attainment demonstration and transport SIP which proposes 
an attainment date of November 15, 2005, (2) determine that the Baton 
Rouge area meets the reasonably available control measures (RACM) 
requirements of the Act, (3) approve the motor vehicle emission budgets 
associated with the attainment demonstration, (4) approve the 
enforceable commitments regarding MOBILE6 and to perform a mid-course 
review and submit a SIP revision to EPA by May 1, 2004, (5) approve an 
enforceable transportation control measure (TCM), (6) approve 
corrections to the 1990 Base Year Emissions Inventory, the 9% Rate-of-
Progress Plan, and the 15% Rate-of Progress Plan and, (7) withdraw its 
June 24, 2002 (67 FR 42688), rulemaking determining nonattainment and 
reclassifying the Baton Rouge nonattainment area as a severe 
nonattainment area for ozone. (67 FR 50391). EPA is taking separate 
actions on other related revisions of the Baton Rouge SIP, including 
the Inspection and Maintenance Program (67 FR 44410, July 2, 2002), 
NOX regulations (67 FR 30638, May 7, 2002, and 67 FR 48095, 
July 23, 2002), New Source Review (see 67 FR 48090, July 23, 2002), 
emissions reductions credit banking (see 67 FR 48083, July 23, 2002), 
Contingency Measures (see 67 FR 35468, May 20, 2002), and SIP revisions 
dealing with VOC emissions from industrial wastewater (67 FR 41840, 
June 20, 2002).
    If, prior to the reclassification delayed effective date of October 
4, 2002, EPA finalizes an extension of the attainment date for the 
Baton Rouge area pursuant to EPA's extension policy, then EPA would 
rescind its determination of nonattainment and notice of 
reclassification of the area and the area would retain its 
classification as a serious nonattainment area for ozone.
    Such a course would allow the Agency to fulfill its duty to take 
into account upwind transport and allow an opportunity for the Baton 
Rouge area to qualify for an extension under the attainment date 
extension policy which EPA has applied in other areas affected by 
transport. EPA recently issued final rulemakings granting requests for 
attainment date extensions based on its policy in six ozone 
nonattainment areas: Washington, DC,\3\ (66 FR 568, January 3, 2001); 
Greater Connecticut, (66 FR 634, January 3, 2001); Springfield, 
Massachusetts, (66 FR 666, January 3, 2001); and Beaumont/Port Arthur, 
Texas (66 FR 26913, May 15, 2001); St. Louis, Missouri (66 FR 33996, 
June 26, 2001).
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    \3\ On July 2, 2002, the U.S. Court of Appeals for the District 
of Columbia vacated EPA's approval of an attainment date extension 
for the Washington, DC ozone nonattainment area. Sierra Club v. EPA, 
2002 WL 1407009 (D.C. Cir. July 2, 2002). EPA is currently 
evaluating this decision and considering what impact it may have on 
EPA's future actions concerning the Baton Rouge area.
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What Comments Were Received on the Proposed Effective Date Modification 
for the Determination of Nonattainment and How Has EPA Responded?

    EPA received letters from twenty-six commenters in support of the 
proposal to delay the effective date. We also received one letter 
opposing the delayed effective date.
    Comment 1: Twenty-six commenters supported delaying the effective 
date of our June 24, 2002, determination to October 4, 2002.
    Response 1: EPA has determined that the delay of the effective date 
of the determination of nonattainment and reclassification is necessary 
to allow regulated entities in the Baton Rouge area a period of time to 
prepare for the new requirements that are applicable to severe 
nonattainment areas.
    Comment 2: A commenter contends that delaying the effective date is 
not necessary for the purpose of allowing facilities to prepare for new 
requirements applicable to severe nonattainment areas. The commenter 
argues that the reclassification of the area should have occurred on 
May 15, 2000, and that therefore regulated facilities in the Baton 
Rouge area have had abundant time to prepare for the new requirements.
    Response 2: Contrary to the commenter's contention, it was not 
clear until the Court's March, 2002, Order that EPA would be required 
to make an attainment determination prior to concluding its review of 
whether the Baton Rouge area qualified for an attainment date 
extension. Therefore, entities affected by a reclassification did not 
have much notice of the new controls to which they would be subject. In 
EPA's May 9, 2001 (66 FR 23646) and July 25, 2001 (66 FR 38608) 
proposals on the Baton Rouge area, EPA proposed to finalize the 
nonattainment determination and reclassification notice for the Baton 
Rouge area only after the area had had an opportunity to qualify for an 
attainment date extension under the extension policy. As a result, the 
commenter is incorrect in its assertion that regulated entities were on 
notice that the area would be reclassified. The commenter has not 
identified any basis for questioning EPA's determination that regulated 
entities require additional time to prepare for the impact of the June 
24, 2002, final rulemaking. See also the comments submitted in support 
of extending the effective date for this reason.
    Comment 3: Several commenters strongly support EPA's proposal to 
extend the effective date of its June 24, 2002, determination on the 
basis that this action will allow EPA sufficient time to work on 
completing a separate rulemaking on the issue of whether the Baton 
Rouge area should be granted an extension of its attainment date 
pursuant to EPA's extension policy, and remain classified as a serious 
nonattainment area. One commenter takes issue with EPA's use of the 
period of the delayed effective date to allow EPA to complete 
consideration of Louisiana's request for an attainment date extension. 
The commenter asserts that the attainment date extension violates the 
Clean Air Act, and that a federal Court of Appeals found that EPA had 
violated the CAA when it extended the attainment deadline for the 
Washington, DC area. The commenter argues that since EPA cannot grant 
an attainment date extension, it cannot delay the effective date of the 
June 24, 2002, rule.
    Response 3: On July 2, 2002, the U.S. Court of Appeals for the 
District of Columbia vacated EPA's approval of an attainment date 
extension for the Washington, D.C. ozone nonattainment area. Sierra 
Club v. EPA, 2002 WL 1407009 (D.C. Cir. July 2, 2002). EPA is currently 
evaluating this decision and considering what impact it may have on 
EPA's future actions concerning the Baton Rouge area. Regardless of 
whether EPA continues to process the attainment date extension during 
the period prior to the effective date of the June 24, 2002, rule, EPA 
has concluded that the need for regulated entities to have additional 
time to prepare for reclassification

[[Page 53884]]

provides a sufficient, separate, and independent basis for extending 
the effective date, and therefore EPA does not rely on the activities 
relating to the attainment date extension in concluding that the 
effective date should be extended until October 4, 2002.
    Comment 4: A number of commenters note that a ``bump-up'' of the 
Baton Rouge area from ``serious'' to ``severe'' ozone nonattainment 
would ignore the efforts of the Baton Rouge Ozone Task Force and the 
progress toward attainment already achieved by the Baton Rouge area, 
would result in the implementation of emissions control measures that 
will produce negligible air quality benefits for the cost, and would 
cause great harm to economic development of the area. These commenters 
contend that the revised State Implementation Plan (SIP) submitted to 
EPA by Louisiana on December 31, 2001, provides the most reasonable, 
effective and expeditious path to the attainment of the 1-hour ozone 
NAAQS.
    Response 4: The substance of Louisiana's revised SIP is the subject 
of a separate rulemaking (67 FR 50391, August 2, 2002) and is not under 
consideration is this action. EPA will address comments regarding 
Louisiana's revised SIP, as appropriate, in that separate rulemaking. 
EPA has acknowledged that during the period of the delayed effective 
date, it will continue to work on completing a separate rulemaking on 
the issue of whether the Baton Rouge area should be granted an 
extension of its attainment date pursuant to EPA's extension policy, 
and remain classified as a serious nonattainment area. However, as 
noted above, EPA is currently evaluating the recent U.S. Court of 
Appeals' decision and is considering what impact it may have on EPA's 
future actions concerning the Baton Rouge area. Regardless of whether 
EPA continues to process the attainment date extension during the 
period prior to the effective date of the June 24, 2002, rule, EPA has 
concluded that the need for regulated entities to have additional time 
to prepare for reclassification provides a sufficient, separate, and 
independent basis for extending the effective date, and therefore EPA 
does not rely on the activities relating to the attainment date 
extension in concluding that the effective date should be extended 
until October 4, 2002.
    Comment 5: A number of commenters base their support of EPA's 
proposal on the grounds that the delayed effective date will alleviate 
some of the supply impacts of the ``severe'' area requirement to use 
and sell reformulated gasoline (RFG) in the Baton Rouge area.
    Response 5: EPA believes that the need for regulated entities to 
have additional time to prepare for reclassification provides a 
sufficient, separate, and independent basis for extending the effective 
date. EPA expresses no view as to other grounds of support for its 
action. However, we note the commenters are correct that the Clean Air 
Act requires mandatory participation in the federal RFG program for an 
ozone non-attainment area which is reclassified as severe, effective 
one year after the reclassification. See section 211(k)(10)(D) of the 
CAA. This requirement under the Clean Air Act is implemented as a 
matter of law; EPA does not have discretion to change, waive, or fail 
to implement this requirement.

Final Action

    For the reasons stated above, and in the June 24, 2002, proposal, 
EPA is taking final action to extend to October 4, 2002, the effective 
date of the final rule entitled ``Determination of Nonattainment as of 
November 15, 1999, and Reclassification of the Baton Rouge Ozone 
Nonattainment Area; State of Louisiana'' (67 FR 42688). Section 553(d) 
of the Administrative Procedure Act generally provides that rules may 
not take effect earlier than 30 days after they are published in the 
Federal Register. However, if an Agency identifies a good cause, 
section 553(d)(3) allows a rule to take effect earlier, provided that 
the Agency publishes its reasoning in the final rule. EPA is making 
this action effective immediately because the effective date of the 
underlying nonattainment determination and reclassification is 
imminent, and delaying the effective date of this action would negate 
the purpose of this rule. In addition, EPA finds good cause for making 
this action effective immediately because it relieves a restriction 
that would otherwise go into effect.

Administrative Requirements

A. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735 (October 4, 1993)), EPA is 
required to determine whether regulatory actions are significant and 
therefore should be subject to Office of Management and Budget (OMB) 
review, economic analysis, and the requirements of the Executive Order. 
The Executive Order defines a ``significant regulatory action'' as one 
that is likely to result in a rule that may meet at least one of the 
four criteria identified in section 3(f), including, under paragraph 
(1), that the rule may ``have an annual effect on the economy of $100 
million or more or adversely affect, in a material way, the economy, a 
sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or state, local, or tribal 
governments or communities.''
    The Agency has determined that this effective date modification 
would result in none of the effects identified in section 3(f) of the 
Executive Order. This final rulemaking merely delays the effective date 
of EPA's determination of nonattainment and would not impose any new 
requirements on any sectors of the economy, or on state, local, or 
tribal governments or communities.

B. Executive Order 13045

    Executive Order 13045, Protection of Children from Environmental 
Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to 
any rule that: (1) Is determined to be economically significant as 
defined under Executive Order 12866, and (2) concerns an environmental 
health or safety risk that EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency. This 
proposed action is not subject to Executive Order 13045 because this is 
not an economically significant regulatory action as defined by 
Executive Order 12866.

C. Executive Order 13175

    On November 6, 2000, the President issued Executive Order 13175 (65 
FR 67249) entitled, ``Consultation and Coordination with Indian Tribal 
Governments.'' Executive Order 13175 took effect on January 6, 2001, 
and revokes Executive Order 13084 (Tribal Consultation) as of that 
date. This rulemaking does not affect the communities of Indian tribal 
governments. Accordingly, the requirements of Executive Order 13175 do 
not apply.

D. 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

[[Page 53885]]

a substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions.
    This rulemaking to delay the effective date of EPA's nonattainment 
determination does not create any new requirements. Instead, this 
rulemaking only delays the effective date of a factual determination, 
and would not regulate any entities. Therefore, pursuant to 5 U.S.C. 
605(b), I certify that today's proposal would not have a significant 
impact on a substantial number of small entities within the meaning of 
those terms for RFA purposes.

E. Unfunded Mandates Reform Act

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(UMRA), signed into law on March 22, 1995, EPA must prepare a budgetary 
impact statement to accompany any proposed or final rule that includes 
a Federal mandate that may result in estimated annual costs to state, 
local, or tribal governments in the aggregate, or to the private 
sector, of $100 million or more. Under section 205, EPA must select the 
most cost-effective and least burdensome alternative that achieves the 
objectives of the rule and is consistent with statutory requirements. 
Section 203 requires EPA to establish a plan for informing and advising 
any small governments that may be significantly or uniquely impacted by 
the rule.
    EPA believes, as discussed above, that the delay of the effective 
date of a determination of nonattainment does not constitute a Federal 
mandate, as defined in section 101 of the UMRA, because it does not 
impose an enforceable duty on any entity.

F. Executive Order 13132

    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.'' Under 
Executive Order 13132, EPA may not issue a regulation that has 
federalism implications, that imposes substantial direct compliance 
costs, and that is not required by statute, unless the Federal 
Government provides the funds necessary to pay the direct compliance 
costs incurred by state and local governments, or EPA consults with 
state and local officials early in the process of developing the 
proposed regulation. EPA also may not issue a regulation that has 
federalism implications and that preempts state law unless the Agency 
consults with state and local officials early in the process of 
developing the proposed regulation.
    This delay of the effective date of a nonattainment determination 
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), because this action does not impose any new requirements on 
any sectors of the economy, and does not alter the relationship or the 
distribution of power and responsibilities established in the CAA. 
Thus, the requirements of section 6 of the Executive Order do not apply 
to this final action.

G. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law 104-113, section 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. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards.
    This final action does not involve technical standards. Therefore, 
EPA did not consider the use of any voluntary consensus standards.

List of Subjects in 40 CFR Part 81

    Environmental protection, Air pollution control, Carbon monoxide, 
Nitrogen dioxides, Ozone, Reporting and recordkeeping requirements.

    Dated: August 12, 2002.
Gregg A. Cooke,
Regional Administrator, Region 6.

    Part 81, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 81--[AMENDED]

    1. The authority citation for part 81 continues to read as follows:

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

    2. In Sec. 81.319 the table for ``Louisiana--Ozone (1-hour 
Standard)'' is amended by revising the entry for the Baton Rouge area 
to read as follows:


Sec. 81.319  Louisiana.

* * * * *

                                        Louisiana-Ozone (1-Hour Standard)
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                                                      Designation                        Classification
            Designated area            -------------------------------------------------------------------------
                                           1Date                Type               1Date             Type
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Baton Rouge Area:
    Ascension Parish..................     11/15/90  Nonattainment............     10/04/02  Severe.
    East Baton Rouge Parish...........     11/15/90  Nonattainment............     10/04/02  Severe.
    Iberville Parish..................     11/15/90  Nonattainment............     10/04/02  Severe.
    Livingston Parish.................     11/15/90  Nonattainment............     10/04/02  Severe.
    West Baton Rouge Parish...........     11/15/90  Nonattainment............     10/04/02  Severe.
 
*                  *                  *                  *                  *                  *
                                                        *
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1 This date is October 18, 2000, unless otherwise noted.


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[FR Doc. 02-21195 Filed 8-19-02; 8:45 am]
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