[Federal Register Volume 65, Number 46 (Wednesday, March 8, 2000)]
[Rules and Regulations]
[Pages 12118-12122]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-5502]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 179-0178; FRL-6546-6]


Approval and Promulgation of Implementation Plans; California 
State Implementation Plan Revision, San Joaquin Valley Unified Air 
Pollution Control District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing a limited approval and limited disapproval 
of revisions to the California State Implementation Plan (SIP) proposed 
in the Federal Register on September 23, 1999. This final action will 
incorporate several San Joaquin rules into the federally approved SIP. 
The intended effect of finalizing this action is to regulate 
particulate matter (PM-10) emissions in accordance with the 
requirements of the Clean Air Act, as amended in 1990 (CAA or the Act). 
The rules control PM-10 emissions from fugitive dust sources. EPA is 
finalizing a simultaneous limited approval and limited disapproval 
under CAA provisions regarding EPA action on SIP submittals and general 
rulemaking authority because these revisions, while strengthening the 
SIP, also do not fully meet the CAA provisions regarding plan 
submissions and requirements for nonattainment areas. As a result of 
this limited disapproval, the emission offset sanction will 
automatically apply unless the State submits and EPA approves 
corrections to the identified deficiencies within 18 months of the 
effective date of this disapproval and the highway funding sanction 
will automatically apply 6 months later. (59 FR 39832, August 4, 1994.) 
Moreover, EPA will be required to promulgate a Federal implementation 
plan (FIP) unless the deficiencies are corrected within 24 months of 
the effective date of this disapproval.

EFFECTIVE DATE: This action is effective on April 7, 2000.

ADDRESSES: Copies of the rules and EPA's Technical Support Document are 
available for public inspection at EPA's Region IX office during normal 
business hours. Copies of the submitted rules are available for 
inspection at the following locations:

Rulemaking Office, (AIR-4), Air Division, U.S. Environmental Protection 
Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105
Environmental Protection Agency, Air Docket (6102), 401 ``M'' Street, 
S.W., Washington, D.C. 20460
California Air Resources Board, Stationary Source Division, Rule 
Evaluation Section, 2020 ``L'' Street, Sacramento, CA 95814
San Joaquin Valley Unified Air Pollution Control District, 1990 E. 
Gettysburg Ave., Fresno, CA 93726

FOR FURTHER INFORMATION CONTACT: Karen Irwin, Rulemaking Office, AIR-4, 
Air Division, U.S. Environmental Protection Agency, Region IX, 75 
Hawthorne Street, San Francisco, CA 94105, Telephone: (415) 744-1903.

SUPPLEMENTARY INFORMATION:

I. Background

    On September 23, 1999 in 64 FR 51489, EPA proposed granting limited 
approval and limited disapproval of the following rules into the 
California SIP: San Joaquin Valley Unified Air Pollution Control 
District (SJVUAPCD) Rule 8010, Fugitive Dust Administrative 
Requirements for Control of Fine Particulate Matter (PM-10); SJVUAPCD 
Rule 8020, Fugitive Dust Requirements for Control of Fine Particulate 
Matter (PM-10) from Construction, Demolition, Excavation, Extraction 
Activities; SJVUAPCD Rule 8030, Fugitive Dust Requirements for Control 
of Fine Particulate Matter (PM-10) from Handling and Storage of Bulk 
Materials; SJVUAPCD Rule 8040, Fugitive Dust Requirements for Control 
of Fine Particulate Matter (PM-10) from Landfill Disposal Sites; 
SJVUAPCD Rule 8060, Fugitive Dust Requirements for Control of Fine 
Particulate Matter (PM-10) from Paved and Unpaved Roads and; SJVUAPCD 
Rule 8070, Fugitive Dust Requirements for Control of Fine Particulate 
Matter (PM-10) from Vehicle and/or Equipment Parking, Shipping,

[[Page 12119]]

Receiving, Transfer, Fueling, and Service Areas. These rules were 
adopted by SJVUAPCD on April 25, 1996 and submitted by the California 
Air Resources Board to EPA on July 23, 1996. A detailed discussion of 
the background for each of the above rules and nonattainment areas is 
provided in the proposed rule (PR) cited above.
    EPA has evaluated all of the above rules for consistency with the 
requirements of the CAA and EPA regulations and EPA's interpretation of 
these requirements as expressed in the various EPA policy guidance 
documents referenced in the PR. EPA is finalizing the limited approval 
of these rules in order to strengthen the SIP and finalizing the 
limited disapproval because of the remaining deficiencies. Rule 
deficiencies include lack of appropriate standards and/or test methods 
that would ensure a level of control consistent with RACM or BACM, 
unsupported source exemptions, clauses containing inappropriate 
Executive Officer discretion or language that does not establish a firm 
threshold upon which to base compliance with rule requirements, and 
lack of recordkeeping. A detailed discussion of the rule provisions and 
evaluations has been provided in the PR and in the Technical Support 
Document (TSD) for the PR, which is available at EPA's Region IX office 
(TSD dated August 31, 1999).

II. Response to Public Comments

    A 45-day public comment period was provided in 64 FR 51498, 
September 23, 1999, which was extended an additional 30 days in 64 FR 
61051, November 9, 1999. EPA received four comment letters \1\ on the 
PR from the California Cotton Ginners and Growers Association (CCGGA), 
the Nisei Farmers League (NFL), the Western States Petroleum 
Association (WSPA), and SJVUAPCD. The comments have been evaluated by 
EPA and a summary of the major comments and EPA's responses are set 
forth below. EPA has responded to all comments in a TSD associated with 
this final rulemaking.
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    \1\ EPA also received comments from the Kings County Farm Bureau 
(KCFB) following expiration of the public comment period. 
Nevertheless, EPA has considered and responded to KCFB's comments 
along with the comments received within the allowed timeframe.
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Introduction to EPA's Responses to Comments

    The commenters \2\ generally express a concern with the 
implementation of control measures for fugitive dust sources, in the 
belief that the state of scientific research concerning PM-10 sources 
in the San Joaquin Valley is not advanced enough to support such 
measures. This concern suggests that the commenters do not support the 
current requirements imposed by the Regulation VIII fugitive dust 
rules, nor the District's consideration of adopting additional rules 
for fugitive dust sources until they are satisfied with the state of 
scientific research. In their letters to EPA, the commenters also 
incorporate concepts that are typically evaluated in the context of a 
Serious PM-10 Nonattainment Area State Implementation Plan, such as 
consideration of which control measures are needed to reach attainment 
of federal ambient air quality standards, and which may not be needed.
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    \2\ EPA's use of ``commenters'' here does not refer to SJVUAPCD.
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    While EPA addresses the commenters' concerns in terms of how they 
relate specifically to this final rulemaking, EPA does not address here 
the broader questions raised by the commenters due to the limited 
nature of this rulemaking. The Regulation VIII rules are already 
imposed by the SJVUAPCD. With this action, EPA is simply carrying out 
its responsibility under section 110(k) of the CAA concerning State 
submittals. The State of California submitted to EPA the Regulation 
VIII fugitive dust rules that the SJVUAPCD adopted to address PM-10 
emissions in the San Joaquin Valley. Once the State submits such rules, 
EPA must evaluate them and determine if they can be approved into the 
California PM-10 SIP. In conducting its evaluation, EPA must apply the 
applicable provisions of the CAA and its regulations and guidance to 
the rules submitted by the State.
    Comment: CCGGA, NFL, WSPA and KCFB comment that many of EPA's 
comments (in the proposed rule) center on the comparison to EPA's BACM 
Guidance Document \3\. The commenters believe this may be inappropriate 
because EPA's guidance document is primarily based on wind erosion 
derived emission factors. They contend that wind erosion is not an 
issue in the San Joaquin Valley with respect to exceedences of the 
federal ambient air quality standard for PM-10.
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    \3\ ``Fugitive Dust Background Document and Technical 
Information Document for Best Available Control Measures'', U.S. 
EPA, September 1992.
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    Response: The rule deficiencies identified by EPA predominantly 
address PM-10 emissions from mechanical operations such as earthmoving 
at construction sites and driving on paved and unpaved surfaces. EPA's 
BACM Guidance Document does include information and emission factors 
for such sources. EPA also identified a few deficiencies with the 
rules' windblown dust requirements. However, SJVUAPCD has not 
demonstrated that inactive surfaces and storage piles subject to 
Regulation VIII are insignificant sources.
    Comment: CCGGA, NFL, WSPA and KCFB comment that EPA is focussed on 
primary particulate matter and that preliminary studies in the San 
Joaquin Valley indicate that this may be inaccurate. Actual ambient 
measurements of PM/NOX ratios indicate that the current 
emission inventory PM/NOX ratios are two to three times 
higher than the measured ambient PM/NOX ratios, 
scientifically verifying that an overestimating of primary PM exists. 
Additionally, other studies have indicated that secondary aerosols, 
such as ammonium nitrate and ammonium sulfate may contribute as much as 
35 percent of the total ambient PM-10 on an annual average basis in the 
San Joaquin Valley. This is dramatically increased during the winter 
months.
    Response: EPA believes it is important to consider the contribution 
of both secondary and primary particulates to the PM-10 levels in the 
San Joaquin Valley. EPA's action on these fugitive dust rules does not 
preclude additional control measures in the San Joaquin Valley that 
focus on secondary aerosols. However, the information presented by the 
commenters does not support the elimination of RACM/BACM requirements 
for primary particulate sources. Primary particulates are a significant 
portion of the emissions inventory (according to the commenters' 
information, as much as 65% on an annual average basis). The RACM/BACM 
requirements of the Act apply unless a PM-10 source is demonstrated to 
be de minimis.
    Comment: CCGGA, NFL, WSPA and KCFB comment that control measures 
must not be implemented until such time as they can be demonstrated 
with sound scientific research. CCGGA, NFL and WSPA comment that the 
California Regional Particulate Matter Air Quality Study is the most 
sophisticated, comprehensive PM-10 study in the world.
    Response: Current research efforts are improving the available 
information on PM-10 emissions in San Joaquin Valley. However, 
scientific studies already confirm that PM-10 is generated from the 
types of sources targeted by Regulation VIII, such as unpaved roads, 
paved roads and earthmoving

[[Page 12120]]

activities.\4\ EPA's BACM Guidance document \5\ and numerous other 
reports set forth basic and practical controls that effectively reduce 
PM-10 from fugitive dust sources, such as applying water and paving, 
that are being effectively implemented on fugitive dust sources in PM-
10 nonattainment areas. The exemption of relevant agricultural sources 
from the Regulation VIII requirements has not been justified under BACM 
criteria.
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    \4\ See J. Watson, J. Chow, J. Gillies et al, ``Effectiveness 
Demonstration of Fugitive Dust Control Methods for Public Unpaved 
Roads and Unpaved Shoulders on Paved Roads'', Desert Research 
Institute, December 31, 1996, and ``Improvement of Specific Emission 
Factors (BACM Project No. 1)'', Midwest Research Institute, March 
29, 1996.
    \5\ Op. Cit.
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    Comment: CCGGA, NFL, WSPA and KCFB comment that EPA must also 
consider the time of year when the San Joaquin Valley is subject to 
exceedances of the PM-10 standard, and then reassess their comments in 
light of that information.
    Response: EPA's action on these rules does not preclude seasonal 
control measures. If seasonal control measures are developed by San 
Joaquin, EPA will evaluate them in light of CAA requirements and EPA 
policy.
    Comment: CCGGA, NFL, WSPA and KCFB comment that recent development 
of the concept of a voluntary plan for reducing emissions at 
agricultural operations should be considered by EPA when discussing 
unpaved roads, mud and dirt track-out, and equipment yards at farming 
operations. KCFB comments that the agricultural industry has 
successfully regulated themselves in many environmental arenas using 
incentives and voluntary strategies. SJVUAPCD requests EPA to delay the 
final rulemaking for Regulation VIII until the completion of the U.S. 
Department of Agriculture/EPA Agriculture Air Quality Task Force 
Voluntary Compliance Policy. SJVUAPCD states that this delay would 
allow District staff sufficient time to incorporate appropriate 
strategies during the development of Rule 8080 \6\ before the 
expiration of the 18-month sanction deadline. SJVUAPCD also asks that 
EPA revise the Technical Support Document for the Regulation VIII 
rulemaking to reflect the final Voluntary Compliance Policy.
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    \6\ SJVUAPCD indicates that Rule 8080 is potentially a new rule 
that would affect agricultural activities on non-cultivated land.
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    Response: The exemptions for agricultural sources that EPA has 
listed as deficiencies in this final rulemaking are based on the fact 
that: (1) The District has not demonstrated that the exempt sources are 
de minimis and therefore not subject to BACM and; (2) BACM is not being 
implemented through some alternative means to Regulation VIII. While 
EPA is actively participating on the referenced Agricultural Air 
Quality Task Force, only draft principles have been developed thus far. 
The Agency has not published a Voluntary Compliance Policy and it is 
unclear when, if ever, such a policy would be finalized. EPA has 
exceeded the statutory deadline for action on these rules.\7\ When EPA 
takes action on SIP submittals, the Agency must apply EPA guidance that 
exists at the time. If the SJVUAPCD develops and the State submits 
voluntary measures to address the BACM requirements for agricultural 
sources associated with this final rulemaking, EPA will evaluate the 
submittal under the CAA 189(b)(1) BACM and other applicable CAA 
requirements and Agency policy.
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    \7\ The statutory deadline expired 18 months following EPA's 
receipt of the rules' submittal.
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III. EPA Action

    None of the comments received provided sufficient basis for EPA to 
alter its proposed action. Therefore, EPA is finalizing a limited 
approval and a limited disapproval of the above-referenced rules. The 
limited approval of these rules is being finalized under section 
110(k)(3) in light of EPA's authority pursuant to section 301(a) to 
adopt regulations necessary to further air quality by strengthening the 
SIP. This action approves the rules into the SIP as federally 
enforceable rules.
    At the same time, EPA is finalizing the limited disapproval of 
these rules because they contain deficiencies that have not been 
corrected as required by section 182(a)(2)(A) of the CAA, and, as such, 
the rules do not fully meet the requirements of Part D of the Act. 
These deficiencies were discussed in the PR. As stated in the PR, upon 
the effective date of this final rule, the 18 month clock for sanctions 
and the 24 month FIP clock will begin pursuant to Sections 179(a) and 
110(c). If the State does not submit the required corrections and EPA 
does not approve the submittal within 18 months of the effective date 
of the final rule, the emission offset sanction will automatically 
apply at the 18 month mark and the highway funding sanction will 
automatically apply 6 months later. (59 FR 39832, August 4, 1994.) It 
should be noted that the rules covered by this FR have been adopted by 
the SJVUAPCD and are currently in effect in the SJVUAPCD. EPA's limited 
disapproval action will not prevent the SJVUAPCD or EPA from enforcing 
these rules.

IV. Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order (E.O.) 12866, entitled 
``Regulatory Planning and Review.''

B. Executive Order 13132

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces 
Executive Orders 12612, Federalism and 12875, Enhancing the 
Intergovernmental Partnership. Executive Order 13132 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 rule 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 (64 FR 
43255, August 10, 1999), because it 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. Thus, the requirements of section 6 of the Executive Order do 
not apply to this rule.

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C. 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 E.O. 
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 rule is not subject to E.O. 13045 because it does not involve 
decisions intended to mitigate environmental health or safety risks.

D. Executive Order 13084

    Under E.O. 13084, Consultation and Coordination with Indian Tribal 
Governments, EPA may not issue a regulation that is not required by 
statute, that significantly affects or uniquely affects the communities 
of Indian tribal governments, and that imposes substantial direct 
compliance costs on those communities, unless the Federal government 
provides the funds necessary to pay the direct compliance costs 
incurred by the tribal governments. If the mandate is unfunded, EPA 
must provide to the Office of Management and Budget, in a separately 
identified section of the preamble to the rule, a description of the 
extent of EPA's prior consultation with representatives of affected 
tribal governments, a summary of the nature of their concerns, and a 
statement supporting the need to issue the regulation.
    In addition, E.O. 13084 requires EPA to develop an effective 
process permitting elected and other representatives of Indian tribal 
governments ``to provide meaningful and timely input in the development 
of regulatory policies on matters that significantly or uniquely affect 
their communities.'' Today's rule does not significantly or uniquely 
affect the communities of Indian tribal governments. Accordingly, the 
requirements of section 3(b) of E.O. 13084 do not apply to this rule.

E. 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.
    This final rule will not have a significant impact on a substantial 
number of small entities because SIP approvals under section 110 and 
subchapter I, part D of the Clean Air Act do not create any new 
requirements but simply approve requirements that the State is already 
imposing. Therefore, because the Federal SIP approval does not create 
any new requirements, I certify that this action will not have a 
significant economic impact on a substantial number of small entities.
    Moreover, due to the nature of the Federal-State relationship under 
the Clean Air Act, preparation of flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of state action. The 
Clean Air Act forbids EPA to base its actions concerning SIPs on such 
grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 
42 U.S.C. 7410(a)(2).

F. Unfunded Mandates

    Under Section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
annual costs to State, local, or tribal governments in the aggregate; 
or to private sector, of $100 million or more. Under Section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the approval action promulgated does not 
include a Federal mandate that may result in estimated annual costs of 
$100 million or more to either State, local, or tribal governments in 
the aggregate, or to the private sector. This Federal action approves 
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.

G. Submission to Congress and the Comptroller General

    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 rule is not a ``major'' rule as defined by 5 U.S.C. 
804(2).

H. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical.
    The EPA believes that VCS are inapplicable to this action. Today's 
action does not require the public to perform activities conducive to 
the use of VCS.

I. Petitions for Judicial Review

    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 May 8, 2000. 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, Incorporation by 
reference, Intergovernmental relations, Particulate matter, Reporting 
and recordkeeping requirements.


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    Dated: February 17, 2000.
Felicia Marcus,
Regional Administrator, Region IX.


    Part 52, chapter I, title 40 of the 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 F--California

    2. Section 52.220 is amended by adding paragraph (c)(239)(i)(F) to 
read as follows:


Sec. 52.220  Identification of plan.

* * * * *
    (c) * * *
    (239) * * *
    (i) * * *
    (F) San Joaquin Valley Unified Air Pollution Control District.
    (1) Rules 8010, 8020, 8030, 8040, 8060, and 8070 adopted on April 
25, 1996.
* * * * *
[FR Doc. 00-5502 Filed 3-7-00; 8:45 am]
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