[Federal Register Volume 67, Number 83 (Tuesday, April 30, 2002)]
[Proposed Rules]
[Pages 21194-21197]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-10628]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[FRL-7203-6]


Designation of Areas for Air Quality Planning Purposes; 
Redesignation of Particulate Matter Unclassifiable Areas; Redesignation 
of Hydrographic Area 61 for Particulate Matter, Sulfur Dioxide, and 
Nitrogen Dioxide; State of Nevada

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: In this document, EPA is proposing to approve requests from 
the State of Nevada, pursuant to section 107(d) of the Clean Air Act 
(Act), to redesignate the current single unclassifiable area for 
particulate matter with an aerodynamic diameter less than or equal to a 
nominal 10 micrometers (PM10) into numerous individual areas 
to be consistent with the area definitions for other pollutants. EPA is 
also proposing to approve a state-requested subdivision of one of those 
individual areas, referred to as hydrographic area 61 (Boulder Flat), 
into two areas. EPA's approval of these requests would establish 
hydrographic areas as the section 107(d) unclassifiable areas for 
PM10 and would replace hydrographic area 61 with two new 
section 107(d) areas for PM10, sulfur dioxide 
(SO2), and nitrogen dioxide (NO2): Upper area 61 
and lower area 61. In this action, EPA is also proposing to delete 
certain total suspended particulate (TSP) area designations that are no 
longer necessary. EPA believes that the State's requests comply with 
the federal standards for approval of section 107(d) redesignations and 
that approving the State's request is appropriate.

DATES: Comments on this proposed rule must be received in writing by 
May 30, 2002.

ADDRESSES: Written comments on this action should be addressed to 
Gerardo Rios, Chief, Permits Office, Air Division (AIR-3), EPA Region 
9, 75 Hawthorne Street, San Francisco, California 94105.
    You can inspect copies of the State's submittal, and other 
supporting documentation relevant to this action, during normal 
business hours at Air Division, EPA Region 9, 75 Hawthorne Street, San 
Francisco, California 94105.
    You may also see copies of the State's submittal at the Nevada 
Division of Environmental Protection, 333 W. Nye Lane, Room 138, Carson 
City, Nevada 89706.

FOR FURTHER INFORMATION CONTACT: David Albright, EPA Region 9, Air 
Division, Permits Office (AIR-3), at (415) 972-3971 or 
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and 
``our'' refer to EPA.

Table of Contents

I. Evaluation of State's Request To Redesignate PM10 
Unclassifiable Area
II. Removing Unnecessary TSP Area Designations from Part 81
III. Proposed Redesignation of Hydrographic Area 61
IV. Proposed Action
V. Request for Public Comment
VI. Administrative Requirements

I. Evaluation of State's Request To Redesignate PM10 
Unclassifiable Area

    Section 107(d)(1) of the 1977 Amendments to the Act required each 
State to submit to the Administrator a list identifying those areas 
which (1) do not meet a national ambient air quality standard (NAAQS) 
(nonattainment areas), (2) cannot be classified on the basis of 
available ambient data (unclassifiable areas), and (3) have ambient air 
quality levels better than the NAAQS (attainment areas). In 1978, we 
published the original list of all area designations pursuant to 
section 107(d)(2) (commonly referred to as ``section 107 areas''), 
including those designations for TSP. See 43 FR 8962 (March 3, 1978). 
EPA's designations of nonattainment, attainment, and unclassifiable 
areas in the State of Nevada are codified at 40 CFR 81.329. The 
designations for Nevada have been the subject of a recent technical 
correction by EPA. See 67 FR 12474 (March 19, 2002). This recent EPA 
action clarified that the TSP (as well as the NO2 and 
SO2) designations in the State of Nevada are based on 
hydrographic areas \1\ as delineated by

[[Page 21195]]

the Nevada Division of Water Resources in 1971 with one exception: the 
split of the Carson Desert hydrographic area (101) into two areas: A 
smaller Carson Desert (101) and Packard Valley (101A). See 45 FR 46807 
(July 11, 1980). The total number of TSP section 107 areas in the State 
of Nevada is 255.
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    \1\ The State of Nevada is divided into 14 distinct hydrologic 
units called hydrographic regions. The hydrographic regions (or 
waterbasins or watersheds) have been further disaggregated into 256 
hydrographic areas and sub-areas. The hydrographic areas and sub-
areas, which Nevada also uses to define their air quality management 
areas, typically comprise a valley, a portion of a valley, or a 
terminal basin. For simplicity, in this notice we use the term 
``hydrographic areas'' to refer to both the hydrographic areas and 
the sub-areas.
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    EPA revised the primary and secondary NAAQS for particulate matter 
on July 1, 1987 (52 FR 24634), eliminating TSP as the indicator for the 
NAAQS and replacing it with the PM10 indicator. However, we 
did not establish PM10 area designations at the time we 
established PM10 as the new indicator for the particulate 
matter NAAQS. Instead, Congress established a process for 
PM10 area designations in the Clean Air Act Amendments of 
1990. In 1991, pursuant to the 1990 Amendments, the State of Nevada 
submitted their recommendations concerning nonattainment areas for 
PM10. Dated March 15, 1991, the State's letter containing 
their recommendations did not refer to PM10 attainment or 
unclassifiable areas, instead focusing 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, but we did not identify attainment or 
unclassifiable areas for PM10 at that time. See 56 FR 56694 
(November 6, 1991). 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 40 CFR 81.329 was only identifying the portion 
of the State that EPA had not designated nonattainment for 
PM10. However, as EPA clarified in our recent action cited 
above, the designation ``rest of state'' in the PM10 table 
refers to previously designated hydrographic areas for the purposes of 
the PSD program. See 67 FR 12474 (March 19, 2002).
    Pursuant to the redesignation procedures of section 107(d)(3) of 
the Act, States may request EPA's approval of area redesignations 
(including boundary changes to existing areas), and on April 16, 2002, 
the State of Nevada submitted a request to EPA to redesignate the 
existing PM10 section 107 unclassifiable area by 
establishing hydrographic areas within the State as the PM10 
unclassifiable areas.
    The State of Nevada's request to establish the hydrographic areas 
as section 107 unclassifiable areas for PM10 is supported by 
the fact that the State has a long history, dating to the 1970s, of 
relying upon the hydrographic areas as air quality management areas. 
EPA approved the use of hydrographic areas as section 107 areas in 1978 
(see 43 FR 8962, March 3, 1978). In fact, the hydrographic area-based 
approach has been used by the State since 1978 to manage particulate 
matter (and other criteria pollutant) emissions, and it remains the 
basis on which they implement their federally delegated PSD program for 
all pollutants. Thus, the effect of finalizing today's proposal to 
approve the State's request to establish the hydrographic areas as the 
section 107 unclassifiable areas for PM10 would be to 
synchronize the classification of designated PM10 section 
107 areas with the current and longstanding approach the State has used 
to manage its air quality.
    In summary, we are proposing to approve the State's request to 
establish the statewide hydrographic areas (previously established for 
TSP) as the PM10 unclassifiable areas under section 107(d) 
of the Act.\2\ Our proposed action would replace the single 
unclassifiable area designated for Nevada for PM10 with 253 
unclassifiable areas. These areas would be defined as the hydrographic 
areas delineated by the Nevada Division of Water Resources in 1971, as 
adjusted in 1980 to recognize an additional hydrographic area (101A) 
referred to as Packard Valley. Together with the two PM10 
nonattainment areas in Nevada (Las Vegas and Reno planning areas), the 
total number of PM10 section 107 areas would become 255; 
these are the same 255 section 107 areas currently designated for TSP.
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    \2\ It is important to note that hydrographic areas are already 
established as the PSD baseline areas for PM10 (and other 
pollutants), so finalization of today's proposal will not effect any 
change in how the State manages their federally delegated PSD 
program. For example, pursuant to 40 CFR 52.21(b)(14)(iv), minor 
source baseline dates originally established for the TSP increments 
would not be rescinded by finalization of this proposed action and 
would remain in effect and continue to apply for purposes of 
determining the amount of available PM10 increment. For 
further explanation see 67 FR 12474 (March 19, 2002), which includes 
a detailed explanation of EPA's prior approval of the use of 
hydrographic areas for PSD baseline purposes.
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II. Removing Unnecessary TSP Area Designations from Part 81

    The PSD provisions of part C (of title I) of the Act apply in all 
section 107 areas that are designated attainment or unclassifiable (40 
CFR 52.21(i)(3)). Under the PSD program, the air quality in an 
attainment or unclassifiable area is not allowed to deteriorate beyond 
prescribed maximum allowable increases in pollutant concentrations 
(i.e., increments). As discussed above, EPA revised the primary and 
secondary NAAQS for particulate matter on July 1, 1987 (52 FR 24634), 
eliminating TSP as the indicator for the NAAQS and replacing it with 
the PM10 indicator. However, EPA did not revise 40 CFR part 
81 at that time to delete the areas designated as attainment or 
unclassifiable for TSP because the Agency had not yet promulgated 
increments for PM10. In 1990, Congress provided (in section 
107(d)(4)(B) of the amended Act) that the designations for TSP existing 
immediately prior to the enactment date of the amendments (November 15, 
1990) would remain in effect until EPA determined that the designations 
were no longer necessary for implementing the maximum allowable 
increases in concentrations of particulate matter pursuant to section 
163(b) of the amended Act.
    In 1993, EPA promulgated the PM10 increments and revised 
the PSD regulations accordingly. See 58 FR 31622 (June 3, 1993). In our 
1993 PSD rule, we indicated that the replacement of the TSP increments 
with PM10 increments (which operate independently from the 
section 107 area designations for TSP) negates the need for the TSP 
attainment or unclassifiable area designations to be retained. We also 
indicated that we would delete such TSP designations in 40 CFR part 81 
upon the occurrence of one of the following events: EPA's approval of a 
State's revised PSD program containing the PM10 increments; 
EPA's promulgation of the PM10 increments into a State's SIP 
where the State chooses not to adopt the increments on their own; or 
EPA's approval of a State's request for delegation of PSD 
responsibility under 40 CFR 52.21(u). See 58 FR 31622, 31635 (June 3, 
1993). In some instances, where a State's request for delegation of PSD 
responsibility (and EPA's approval of that request) occurred prior to 
our 1993 PSD rule, the Sec. 52.21 delegation automatically extended to 
subsequent revisions to the PSD regulations (such as implementation of 
the PM10 increment). Our 1993 PSD rule became effective on 
June 3, 1994.
    For PSD implementation and enforcement purposes, the State of 
Nevada is divided into three jurisdictions: the Nevada Department of 
Conservation and Natural Resources (DCNR), Washoe County District 
Health Department (WCDHD), and the Clark County Department of Air 
Quality Management (CCDAQM). EPA has delegated authority under 40 CFR 
52.21(u) to implement and enforce the

[[Page 21196]]

federal PSD program to DCNR for those PSD major sources or major 
modifications locating in or constructing in its jurisdiction, which 
includes the entire State with the exception of Washoe and Clark 
counties. This delegation agreement covers any revisions that EPA makes 
to the PSD regulations. See 48 FR 28269 (June 21, 1983), as amended at 
54 FR 22888 (May 30, 1989). With certain exceptions not relevant here, 
EPA did the same for the WCDHD, pursuant to an agreement effective May 
9, 1985.
    As noted above, for delegated PSD programs, such as those 
administered by DCNR and WCDHD, the listing of designated TSP 
attainment or unclassifiable areas became unnecessary on the effective 
date of our 1993 PSD rule (i.e., June 3, 1994) because, from that date 
onward, the PM10 increments and baseline areas replaced the 
TSP increments and baseline areas for the purposes of the federal PSD 
program. Therefore, if EPA finalizes today's proposal, we will 
eliminate the listing of designated TSP attainment or unclassifiable 
areas in Nevada, except for the designations in Clark County. In 
contrast to NDEP and WCDHD, CCDAQM administers an EPA-approved PSD 
program (rather than administering a delegated federal PSD program) for 
PSD sources in Clark County (see 47 FR 26620 (June 21, 1982)). We will 
delete the appropriate TSP designations for Clark County when we 
approve revisions to their PSD program that include the PM10 
increments.
    In summary, we are proposing to update the TSP table in 40 CFR part 
81 for Nevada to delete those designations that are no longer 
necessary. Specifically, we are proposing to delete the TSP attainment 
and unclassifiable area designations statewide, except for those in 
Clark County.

III. Proposed Redesignation of Hydrographic Area 61

A. Nevada's Submittal

    In a letter dated November 6, 2001, the State of Nevada requested 
EPA's approval of a redesignation of the boundary of hydrographic area 
61 to create two new PSD baseline areas for PM10, 
NO2, and SO2. The State's redesignation request 
was made pursuant to section 107(d)(3)(D) of the Act, which states: 
``the Governor of any State may, on the Governor's own motion, submit 
to the Administrator a revised designation of any area or portion 
thereof within the State.''
    The State's redesignation submittal included substantial 
documentation supporting their request. They provided detailed maps 
showing the proposed subdivision of hydrographic area 61 into upper 
area 61 (156 square miles) and lower area 61 (390 square miles). The 
maps include such features as the area's topography, major roads, 
railroads, major and minor sources in the area and in nearby areas, and 
the location of Jarbidge Wilderness Area (the only Class I area in the 
State). The State also provided a detailed legal description of the 
proposed new baselines areas, data regarding emissions from all 
stationary sources in the hydrographic area and major sources in nearby 
areas, population characteristics and census data for the area, 
descriptions of the principal land uses, and results of ambient air 
quality modeling and monitoring, in hydrographic area 61 specifically, 
and in the larger regional area. Finally, the submittal included the 
State's perspective on how EPA's approval of the redesignation request 
would promote Nevada's air quality management.

B. EPA's Criteria for Evaluating State Requests for PSD Baseline Area 
Redesignations

    Section 107(d)(3)(D) of the Act provides that, ``within 18 months 
of receipt of a complete State redesignation submittal, the 
Administrator shall approve or deny such redesignation.'' Section 
107(d)(3) does not provide specific direction to EPA for evaluating 
redesignation requests that involve subdivision of existing attainment 
or unclassifiable areas, in contrast to requests that involve a change 
in the designation of a given area, e.g., from nonattainment to 
attainment (see section 107(d)(3)(E)) or from nonattainment to 
unclassifiable (see section 107(d)(3)(F)). However, section 
107(d)(3)(A) of the Act, which describes EPA initiation of an area 
redesignation, indicates that redesignations may be initiated ``on the 
basis of air quality data, planning and control considerations, or any 
other air-quality related considerations the Administrator deems 
appropriate.'' EPA believes it is reasonable to conclude that these 
considerations, provided in the Act as an appropriate basis for EPA-
initiated redesignations, also provide some basis for EPA's evaluation 
of state-initiated redesignation requests.
    In addition to the general statutory language of section 107, EPA's 
rules also guide evaluation of a proposed subdivision of existing PSD 
baseline areas, imposing some minimal limits on the establishment of 
new baseline areas. These limits include a prohibition on the creation 
of new baseline areas if: (1) A PSD source has located in, or 
significantly impacted on the clean area being considered for 
redesignation; or (2) the newly created areas either intersect the area 
of impact of any major PSD source or have a boundary that is smaller 
than such impact area. EPA's rules currently define ``area of impact'' 
as the 1 g/m3 annual average ambient level isopleth around the 
major PSD source. See 40 CFR 52.21(b)(15) and 45 FR 52716 (August 7, 
1980).
    Historically, EPA has relied almost exclusively on the regulatory 
criteria in part 52 as the basis for evaluating state-initiated 
requests for PSD baseline area redesignations. See, for example, 60 FR 
47297 (September 12, 1995) and 58 FR 50275 (September 27, 1993) (EPA's 
approvals of redesignation requests made by the States of Wyoming and 
Minnesota, respectively). However, Federal Land Managers and EPA have 
recently become concerned about the existing regulatory criteria for 
redesignation of PSD baseline areas. As a result of these concerns, EPA 
is currently evaluating the existing regulatory and policy framework 
for PSD baseline area redesignations to ensure that it continues to 
adequately prevent significant deterioration of air quality in 
attainment and unclassifiable areas. Until EPA has completed its 
evaluation, the Agency will continue to evaluate requests based on the 
currently applicable federal requirements and policies. Thus, EPA is 
evaluating Nevada's request based on the statutorily derived 
``appropriate air quality-related considerations'' and the regulatory 
criteria for PSD baseline redesignations in 40 CFR part 52.

C. Evaluation of Nevada's Request to Redesignate Area 61

    EPA has evaluated the State's request to divide hydrographic area 
61 and determined that the request adequately complies with the 
currently applicable federal requirements and policies for PSD baseline 
area redesignations.
    As described above, EPA's part 52 regulations prohibit the creation 
of new baseline areas if a PSD source has located in, or significantly 
impacted on the clean area being considered for redesignation, or if 
the newly created areas either intersect the area of impact of any 
major PSD source or have a boundary that is smaller than such impact 
area. Nevada's redesignation submittal indicates that hydrographic area 
61 does not presently contain any major PSD sources \3\ and that no 
major

[[Page 21197]]

PSD sources are significantly impacting hydrographic area 61. Thus, no 
PSD source has located in, or is significantly impacting the clean area 
being considered for redesignation (hydrographic area 61), and the 
newly created baseline areas (upper and lower area 61) do not intersect 
the area of impact of any major PSD source nor do they have boundaries 
that are smaller than such impact area. EPA therefore concludes that 
the proposed new baseline areas comply with our regulatory criteria for 
the redesignation of PSD baseline areas.
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    \3\ There is one major source located in Hydrographic area 61 
(Barrick Goldstrike Mines, Inc.); however, the source has not been 
subject to PSD review.
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    In addition, EPA believes that consideration of whether the 
proposed PSD baseline area redesignation will interfere with the 
State's ability to effectively manage air quality constitutes an 
appropriate ``air quality-related consideration'' in evaluating the 
State's request. In this case, the State believes that the 
redesignation will promote their air quality management objectives by 
conforming their management of hydrographic area 61 to the distinct 
geographic, meteorologic, and land use characteristics of the upper and 
lower areas.
    Since EPA's policy has long been to provide States a fair degree of 
autonomy to balance air quality management with economic planning, our 
concern in evaluating this request is not necessarily to ensure that 
the redesignation will improve air quality management, but to ensure 
that it both complies with regulatory standards and does not interfere 
with the State's management of air quality.\4\
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    \4\ Some examples of the types of redesignations that might 
interfere with effective air quality management are those that would 
have the effect of untriggering a minor source baseline date in an 
area affecting a Class I area or in an area where a substantial 
portion of the available increment has been consumed, redesignations 
that serve to carve out small ``postage stamp'' areas encompassing 
only the significant impact area around a major PSD source, or 
large-scale redesignations creating numerous small baseline areas 
with little or no basis in effective management of air quality.
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    Our evaluation of Nevada's request indicates that approving the 
subdivision of hydrographic area 61 is not likely to interfere with the 
State's management of air quality in the affected area. Since the minor 
source baseline date has not been triggered in hydrographic area 61, 
approving the subdivision would not untrigger the baseline area and, in 
general, EPA believes that it would not likely result in the types of 
adverse effects described in footnote 4. For example, since there would 
not be an untriggering of the baseline area, there is no elimination of 
already consumed increment and no consumed increment would be added to 
the baseline for the area. That is, the amount of pollution allowed in 
hydrographic area 61 would not change as a result of EPA's approval of 
Nevada's request. In addition, the area proposed for redesignation is 
not located in close proximity to Jarbidge Wilderness Area (the only 
Class I area in Nevada), and approval of the redesignation request is 
not expected to have any impact on air quality related values (AQRVs) 
at Jarbidge or any other Class I area.

IV. Proposed Action

    After considering all of the factors described in the above 
sections, EPA is proposing to approve the State of Nevada's request to 
redesignate the current single section 107 unclassifiable area for 
PM10 into 253 individual areas to correspond with those 
areas originally designated for TSP and is also proposing to remove the 
section 107 TSP designations that are no longer necessary. Finally, EPA 
is proposing to approve the State's request to redesignate hydrographic 
area 61 by dividing the basin into two section 107 areas: upper area 61 
and lower area 61.

V. Request for Public Comment

    We are soliciting public comment on all aspects of this proposal. 
These comments will be considered before taking final action. To 
comment on today's proposal, you should submit comments by mail (in 
triplicate if possible) as described in the ADDRESSES section listed in 
the front of this document. EPA will consider any written comments 
received by May 30, 2002.

VI. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed action is not a ``significant regulatory action'' and 
therefore is not subject to review by the Office of Management and 
Budget. For this reason, this proposed action is also not subject to 
Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355, May 22, 2001). This proposed action would redesignate areas for 
air quality planning purposes and would not impose additional 
requirements. Accordingly, the Administrator certifies that this 
proposed rule will not have a significant economic impact on a 
substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.). Because this proposed rule does not impose 
any enforceable duty, it does not contain any unfunded mandate or 
significantly or uniquely affect small governments, as described in the 
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).
    This proposed 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 proposed rule also 
does not have Federalism implications because it does not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This 
proposed rule does not alter the relationship or the distribution of 
power and responsibilities established in the Clean Air Act. This 
proposed rule also is not subject to Executive Order 13045, 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant.
    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. 
As required by section 3 of Executive Order 12988 (61 FR 4729, February 
7, 1996), in issuing this proposed 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. 
This proposed 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.).

List of Subjects in 40 CFR Part 81

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

    Dated: April 19, 2002.
Laura Yoshii,
Acting Regional Administrator, Region 9.
[FR Doc. 02-10628 Filed 4-29-02; 8:45 am]
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