[Federal Register Volume 67, Number 53 (Tuesday, March 19, 2002)]
[Rules and Regulations]
[Pages 12474-12478]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-6613]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[NV 074-CORR; FRL-7159-6]


Designations of Areas for Air Quality Planning Purposes; State of 
Nevada; Technical Correction

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is clarifying and correcting the tables in the Code of 
Federal Regulations that identify the Agency's designations and 
classifications of nonattainment, attainment, and unclassifiable areas 
for criteria pollutants within the State of Nevada. Specifically, EPA 
is clarifying the tables for Nevada to indicate the specific geographic 
areas that comprise the attainment and unclassifiable areas in the 
State and to reflect changes in the Agency's regulations implementing 
the prevention of significant deterioration program. EPA is also 
correcting the table that shows the classification of the Las Vegas 
Valley nonattainment area for the National Ambient Air Quality Standard 
for carbon monoxide.

EFFECTIVE DATE: This action is effective on March 19, 2002.

ADDRESSES: Copies of documents relevant to this action are available 
for public inspection during normal business hours at the Permits 
Office of the Air Division, Environmental Protection Agency, Region 9, 
75 Hawthorne Street, San Francisco, California 94105-3901.

FOR FURTHER INFORMATION CONTACT: David Albright, Permits Office (AIR-
3), U.S. Environmental Protection Agency, Region 9, (415) 972-3971 or 
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, wherever ``we'', 
``us'', or ``our'' are used, we mean the Environmental Protection 
Agency (EPA).
    This section contains additional information about our final 
rulemaking, organized as follows:

    I. Clarification of the TSP, SO2, and NO2 
tables.
    II. Clarification of the PM10 table.

[[Page 12475]]

    III. Correction of the CO table.
    IV. EPA's final action.
    V. Effective date of EPA's final action.

I. Clarification of the TSP, SO2, and NO2 
Tables

    EPA's designations of nonattainment, attainment, and unclassifiable 
areas pursuant to section 107(d) of the Clean Air Act are contained in 
part 81 of title 40 of the code of federal regulations (40 CFR part 
81). Our designations for such areas in the State of Nevada are located 
in 40 CFR 81.329 and are presented separately for each of the criteria 
pollutants.\1\ All of the applicable tables in 40 CFR 81.329 contain 
the term ``rest of state'' or ``entire state'' to describe the 
attainment or unclassifiable areas within Nevada. We are aware that the 
term ``rest of state'' or ``entire state'' in these tables at 40 CFR 
81.329 could be misinterpreted as designating a single attainment or 
unclassifiable area. However, based on the regulatory history 
summarized below, dating back to our initial area designations in 1978, 
the terms ``rest of state'' and ``entire state'' in the applicable 
section 81.329 tables actually refer to more than 250 individual 
section 107(d) attainment or unclassifiable areas.
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    \1\ 40 CFR 81.329 does not contain a table for lead. The entire 
State of Nevada is in attainment with the national ambient air 
quality standard for lead.
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    In 1977, pursuant to section 107(d) of the Clean Air Act Amendments 
of 1977, the State of Nevada submitted their recommendations to EPA for 
nonattainment, attainment and unclassifiable areas for TSP (total 
suspended particulate), SO2 (sulfur dioxide), and 
NO2 (nitrogen dioxide) within the State.\2\ Dated November 
25, 1977, the State's letter containing the recommendations cites 
hydrographic areas (delineated by the Nevada Division of Water 
Resources) as the geographic unit for such areas in Nevada, 
specifically noting that, ``the name and definition of Nevada's water 
basins are now being utilized as the reference unit for air basins.'' 
The letter with the State's 1977 submission indicated that there were 
253 such air basins in the State. A careful review of the air basins 
listed in the documentation provided with the 1977 letter indicates 
that the State had identified 254 such areas. These areas are referred 
to herein as ``section 107(d) areas.''
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    \2\ The state also submitted recommendations for carbon monoxide 
and oxidant (subsequently replaced by ozone). Today's action does 
not address area designations in Nevada for either of these two 
pollutants, with the exception of a correction in the classification 
shown in 40 CFR 81.329 for Las Vegas Valley as a carbon monoxide 
nonattainment area.
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    In 1978, we designated section 107(d) areas based on the State's 
recommendations (contained in the November 1977 letter described above) 
with certain modifications (that are not relevant for the purposes of 
this action) and codified these areas in 40 CFR part 81.329. See 43 FR 
8962, 9012 (March 3, 1978). In our 1978 rule, we noted: ``In some 
instances, the descriptions of the designated areas submitted by the 
States were so lengthy as to prohibit their publication in the limited 
space available in the tables presented below. Exact descriptions of 
all areas designated are available at the appropriate Regional Offices 
or the State in question.'' See 43 FR 8962, 8964 (March 3, 1978). 
Nevada was one of those States which submitted a lengthy description of 
section 107(d) areas. In the tables published in the Federal Register 
and codified in 40 CFR 81.329, the short-hand notation ``rest of 
state'' and ``entire state'' were used to refer to attainment and 
unclassifiable areas in the State of Nevada, in lieu of the lengthy 
description of 254 hydrographic areas submitted by the State. Thus, our 
1978 rule, despite the use of the short-hand notation in the CFR, 
approved the hydrographic areas as the attainment or unclassifiable 
areas (for TSP, SO2, and NO2) in the State of 
Nevada.
    Since our 1978 rule, we have twice taken action under section 
107(d) of the Clean Air Act to increase the number of designated 
section 107(d) areas in the State of Nevada. In 1980, we approved a 
division of hydrographic area 101 (Carson Desert) into two section 
107(d) areas for TSP: 101 (a smaller area referred to as Carson 
Desert); and 101A (referred to as Packard Valley). See 45 FR 46807 
(July 11, 1980). In 1982, we approved a division of hydrographic area 
179 (Steptoe Valley) into three areas for SO2: central; 
northern; and southern. See 47 FR 20772 (May 14, 1982). Upon the 
effective date of our 1982 rule (June 14, 1982), there have been a 
total of 256 section 107(d) areas in the State of Nevada for 
SO2, 255 section 107(d) areas for TSP, and 254 section 
107(d) areas for NO2.
    Therefore, in this action, we are clarifying 40 CFR 81.329 to 
indicate clearly that the term ``rest of state'' or ``entire state'' in 
the Nevada tables for TSP, SO2, and NO2 refers to 
the hydrographic areas designated by EPA in 1978, revised for TSP in 
1980, and then revised for SO2 in 1982.

II. Clarification of the PM10 Table

    In 40 CFR 81.329, there are two tables that list the nonattainment, 
attainment, and unclassifiable areas in the State of Nevada for 
particulate matter: one relates to TSP and the other relates to 
PM10. Today's action clarifies the PM10 table to 
reflect the relationship between that table and the TSP area 
designations table for the purposes of implementing the PSD program.\3\
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    \1\ Although EPA indicated that we would delete the TSP 
designations in 40 CFR part 81 when EPA approves a State's revised 
PSD program containing the PM10 increments, promulgates 
the PM10 increments into a State's SIP where the State 
chooses not to adopt the increments on their own, or approves a 
State's request for delegation of PSD responsibility under 40 CFR 
52.21(u) (See 58 FR 31622, 31635 (June 3, 1993)), we are not 
deleting any section 81.329 TSP designations in today's action, 
because of the significance of the designations to the 
implementation of the PSD program for PM10. EPA believes 
this is a reasonable approach given the confusion that has arisen in 
the State of Nevada regarding implementation of the PSD program for 
PM10.
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    In 1991, pursuant to the Clean Air Act Amendments of 1990, the 
State of Nevada submitted their recommendations concerning 
nonattainment areas for particulate matter with an aerodynamic diameter 
less than or equal to a nominal 10 micrometers (PM10) 
(PM10 replaced TSP as the criteria pollutant for particulate 
matter.) Dated March 15, 1991, the State's letter containing their 
recommendations did not refer to PM10 attainment or 
unclassifiable areas, instead focussing solely on the identification of 
nonattainment areas. Later in 1991, based on the State's 
recommendations, we revised the nonattainment areas under section 
107(d) for PM10. See 56 FR 56694 (November 6, 1991). Our 
1991 rule did not identify attainment or unclassifiable areas for 
PM10.
    In 1992, we recognized that we had neglected to identify attainment 
or unclassifiable areas for PM10 in our 1991 rule and thus 
added the designation ``unclassifiable'' for the areas not otherwise 
designated nonattainment for PM10, using the term ``rest of 
state.'' See 57 FR 56762 (November 30, 1992). In this context, the use 
of the term ``rest of state'' in the PM10 table in section 
81.329 was only identifying the portion of the State that EPA had not 
designated nonattainment for PM10.
    Unfortunately, the use of the term ``rest of state'' in the 
PM10 table could lead members of the public to conclude that 
there is a single unclassifiable PM10 area in the State for 
the purposes of the prevention of significant deterioration (PSD) 
program. However, based on the regulatory history described below, for 
PSD baseline purposes, the term ``rest of state'' in the 
PM10 table for the State of Nevada refers to hydrographic 
areas, and in this action, we are clarifying the PM10 table 
accordingly to avoid further confusion.

[[Page 12476]]

    In 1980, EPA revised the regulations implementing the PSD program 
to define ``baseline areas'' in terms of the attainment or 
unclassifiable areas listed in 40 CFR part 81, i.e., the section 107(d) 
areas. 45 FR 52676 (August 7, 1980). In 1987, we revised the National 
Ambient Air Quality Standard (NAAQS) for particulate matter (52 FR 
24634), replacing TSP as the indicator for particulate matter with 
PM10, and in 1993, we revised our PSD regulations to address 
the revision in the NAAQS for particulate matter from TSP to 
PM10. Among other changes in our 1993 rule related to PSD, 
we decided to retain the TSP baseline areas as part of the program for 
implementing the newly-promulgated PM10 increments. See 58 
FR 31622, 31630 (June 3, 1993). The TSP baseline areas had been defined 
as the section 107(d) areas, and in the State of Nevada, as discussed 
in the previous section, the section 107(d) areas for TSP are comprised 
of hydrographic areas. Thus, the effect of our 1993 rule was to retain 
the hydrographic areas as PM10 baseline areas for the 
purposes of implementing the PM10 increments in the State of 
Nevada. Today's action clarifies the PM10 table in 40 CFR 
81.329 to indicate, in accordance with EPA's 1993 rule, that for PSD 
baseline area purposes, the term ``rest of state'' refers to the 
hydrographic areas that had been approved by EPA as TSP baseline areas 
in the State of Nevada.

III. Correction of CO Table

    On October 2, 1997, we published a final rule that found that the 
Las Vegas Valley carbon monoxide (CO) nonattainment area did not attain 
the NAAQS for CO by the applicable attainment date. Our final rule 
reclassified the area from ``moderate'' to ``serious'' nonattainment 
under section 186(b)(2) of the Act. See 62 FR 51604 (October 2, 1997). 
However, we inadvertently failed to codify this final action in the CO 
table for Nevada in 40 CFR 81.329. The CO table in 40 CFR 81.329 
currently lists the prior classification (``Moderate > 12.7 ppm'') for 
Las Vegas Valley Hydrographic Area 212. In this action, we are 
therefore correcting the CO table so that the classification of Las 
Vegas Valley Hydrographic Area 212 is correctly identified as 
``serious,'' effective November 3, 1997, reflecting our final action 
published on October 2, 1997 in the Federal Register.

IV. EPA's Final Action

    In this action, we are clarifying and correcting the tables in 40 
CFR 81.329 that identify nonattainment, attainment, and unclassifiable 
areas designated by EPA under the Clean Air Act within the State of 
Nevada. Specifically, we are clarifying the TSP, SO2, and 
NO2 tables to identify exactly which geographic areas 
comprise the attainment or unclassifiable areas in the State of Nevada 
consistent with our final rules published in the Federal Register on 
March 3, 1978 (43 FR 8962); July 11, 1980 (45 FR 46807); and May 14, 
1982 (47 FR 20772). We are also clarifying the PM10 table 
consistent with our final rule related to PSD published in the Federal 
Register on June 3, 1993 (58 FR 31622). Lastly, we are correcting the 
table showing the classification of the Las Vegas Valley nonattainment 
area for the NAAQS for CO consistent with our final rule published in 
the Federal Register on October 2, 1997 (62 FR 51604). In so doing, we 
are not revising any area designations or classifications in the State 
of Nevada nor are we changing the underlying method used by the State 
of Nevada in implementing the PSD program in that State. (The State has 
been implementing the PSD program on the basis of hydrographic areas 
consistent with our designations of such areas in 1978.) Rather, we are 
aligning the contents of the tables in 40 CFR 81.329 with the effective 
results of prior EPA rules that did establish or revise the area 
designations or classifications.

V. Effective Date of EPA's Final Action

    Section 553 of the Administrative Procedure Act, 5 U.S.C. 
553(b)(B), provides that, when an agency for good cause finds that 
notice and public procedure are impracticable, unnecessary or contrary 
to the public interest, the agency may issue a rule without providing 
notice and an opportunity for public comment. EPA has determined that 
there is good cause for making today's rule final without prior 
proposal and opportunity for comment because EPA is clarifying and 
correcting the section of the CFR that lists designations and 
classifications under the Clean Air Act to reflect prior EPA rules 
rather than promulgating new or revised designations or 
classifications. These prior rules had been subject to notice and 
comment. Thus, notice and public procedure are unnecessary. EPA finds 
that this constitutes good cause under 5 U.S.C. 553(b)(B). Also, 
because the contents of the existing tables of section 107(d) areas in 
40 CFR 81.329 have lead to confusion, particularly in the context of 
implementing the PSD program in Nevada, we are invoking the good cause 
exception to the 30-day notice requirement of the Administrative 
Procedure Act and making today's final action immediately effective. 
See 5 U.S.C. 553(d)(3).

Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and is therefore 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). Because the 
agency has made a ``good cause'' finding that this action is not 
subject to notice-and-comment requirements under the Administrative 
Procedure Act or any other statute (see section V., above), it is not 
subject to the regulatory flexibility provisions of the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.), or to sections 202 and 205 of 
the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). In 
addition, this action does not significantly or uniquely affect small 
governments or impose a significant intergovernmental mandate, as 
described in sections 203 and 204 of UMRA. 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 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). This rule also is not subject to Executive Order 
13045 (62 FR 19885, April 23, 1997), because it is not economically 
significant.
    This technical correction does not contain technical standards; 
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. 
The rule also does not involve special consideration of environmental 
justice related issues as required by Executive Order 12898 (59 FR 
7629, February 16, 1994). In issuing this rule, EPA has taken the 
necessary steps to eliminate drafting errors and ambiguity, minimize 
potential litigation, and provide a clear legal standard for affected 
conduct, as required by section 3 of Executive Order 12988 (61 FR 4729, 
February 7, 1996).

[[Page 12477]]

EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 
1988) by examining the takings implications of the rule in accordance 
with the ``Attorney General's Supplemental Guidelines for the 
Evaluation of Risk and Avoidance of Unanticipated Takings'' issued 
under the executive order. 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. Section 808 allows the issuing agency to 
make a rule effective sooner than otherwise provided by the CRA if the 
agency makes a good cause finding that notice and public procedure is 
impracticable, unnecessary or contrary to the public interest. This 
determination must be supported by a brief statement. 5 U.S.C. 808(2). 
As stated previously, EPA has made such a good cause finding, including 
the reasons therefor, and established an effective date of March 19, 
2002. 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. 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 May 20, 2002. 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 81

    Environmental protection, Air pollution control, National Parks, 
Wilderness areas.

    Dated: March 8, 2002.
Wayne Nastri,
Regional Administrator, Region 9.

    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.

Subpart C--Section 107 Attainment Status Designations

    2. Section 81.329 is amended by:
    a. Revising the tables for ``Nevada--TSP'' and ``Nevada--
SO2''.
    b. In the table for ``Nevada--Carbon Monoxide'' by revising the 
entry for Las Vegas Area.
    c. Revising the tables for ``Nevada--PM-10'' and ``Nevada--
NO2''.
    The revisions read as follows:


Sec. 81.329  Nevada.

                                                   Nevada--TSP
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                                               Does not meet    Does not meet                      Better than
               Designated area                    primary         secondary        Cannot be         national
                                                 standards        standards        classified       standards
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(Township Range):
    Las Vegas Valley (212) (15-24S, 56-64E).               X   ...............  ...............  ...............
    Carson Desert (101) (15-24.5N, 25-35E)..               X   ...............  ...............  ...............
    Packard Valley (101A) (24.5-28N, 31-34E)  ...............  ...............  ...............               X
    Winnemucca Segment (70) (34-38N, 34-41E)               X   ...............  ...............  ...............
    Lower Reese Valley (59) (27-32N, 42-48E)  ...............               X   ...............  ...............
    Gabbs Valley............................  ...............  ...............               X   ...............
    Fernley Area (76) (19-21N, 23-26E)......               X   ...............  ...............  ...............
    Truckee Meadows (87) (17-20N, 18-21E)...               X   ...............  ...............  ...............
    Mason Valley (108) (9-16N, 24-26E)......               X   ...............  ...............  ...............
    San Emido Desert (22) (27-32N, 22-24E)..  ...............  ...............           \1\ X   ...............
    Colorado River Valley (213) (22-33S, 63-  ...............  ...............           \1\ X   ...............
     66E)...................................
    Steptoe Valley (179) (10-29N, 61-67E)...  ...............  ...............           \1\ X   ...............
    Clovers Area (64) (32-39N, 42-46E)......  ...............               X   ...............  ...............
    Rest of State \2\.......................  ...............  ...............  ...............              X
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\1\ EPA designation replaces State designation.
\2\ Rest of State refers to hydrographic areas as shown on the State of Nevada Division of Water Resources' map
  titled Water Resources and Inter-basin Flows (September 1971).


                                                   Nevada--SO2
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                                               Does not meet    Does not meet                      Better than
               Designated area                    primary         secondary        Cannot be         national
                                                 standards        standards        classified       standards
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(Township Range):
    Steptoe Valley (179)(10-29N, 61-67E):
Central.....................................               X   ...............  ...............  ...............
        Northern (area which is north of      ...............  ...............               X   ...............
         Township 21 North and within the
         drainage basin of the Steptoe
         Valley)............................
        Southern (area which is south of      ...............  ...............               X   ...............
         Township 15 North and within the
         drainage basin of the Steptoe
         Valley)............................

[[Page 12478]]

 
    Rest of State \1\.......................  ...............  ...............  ...............              X
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\1\ Rest of State refers to hydrographic areas as shown on the State of Nevada Division of Water Resources' map
  titled Water Resources and Inter-basin Flows (September 1971).


                                             Nevada--Carbon Monoxide
----------------------------------------------------------------------------------------------------------------
                                                Designation                            Classification
        Designated area         --------------------------------------------------------------------------------
                                      Date \1\               Type                Date \1\             Type
----------------------------------------------------------------------------------------------------------------
 
*                  *                  *                  *                  *                  *
                                                        *
Las Vegas Area:
    Clark County (part):
        Las Vegas Valley                            Nonattainment           11/03/97           Serious.
         Hydrographic Area 212.
 
*                  *                  *                  *                  *                  *
                                                        *
----------------------------------------------------------------------------------------------------------------

* * * * *

                                                  Nevada-PM-10
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                                                Designation                            Classification
        Designated area         --------------------------------------------------------------------------------
                                        Date                 Type                  Date               Type
----------------------------------------------------------------------------------------------------------------
Washoe County:
    Reno planning area.........  11/15/90           Nonattainment           02/07/01           Serious.
        Hydrographic area 87
Clark County:
    Las Vegas planning area....  11/15/90           Nonattainment           02/08/93           Serious.
        Hydrographic area 212
Rest of State \1\..............  11/15/90           Unclassifiable
----------------------------------------------------------------------------------------------------------------
\1\ For PSD baseline area purposes, ``rest of state'' refers to hydrographic areas as shown on the State of
  Nevada Division of Water Resources' map titled Water Resources and Inter-basin Flows (September 1971), as
  revised to include a division of Carson Desert (area 101) into two areas, a smaller area 101 and area 101A.


                               Nevada--NO2
------------------------------------------------------------------------
                                                           Cannot be
                                       Does not meet     classified or
          Designated area                 primary         better than
                                         standards          national
                                                           standards
------------------------------------------------------------------------
Entire State \1\...................  ................                X
------------------------------------------------------------------------
\1\ Entire State refers to hydrographic areas as shown on the State of
  Nevada Division of Water Resources' map titled Water Resources and
  Inter-basin Flows (September 1971).

[FR Doc. 02-6613 Filed 3-18-02; 8:45 am]
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