[Federal Register Volume 67, Number 167 (Wednesday, August 28, 2002)]
[Rules and Regulations]
[Pages 55125-55129]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-21944]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 60

[SIP Nos. MT-001-0042a, MT-001-0044a, MT-001-0045a; FRL-7261-1]


Clean Air Act Approval and Promulgation of Air Quality 
Implementation Plans for the State of Montana; Revisions to the 
Administrative Rules of Montana

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule and notice of delegation of authority.

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SUMMARY: EPA is taking direct final action approving State 
Implementation Plan (SIP) revisions submitted by the Governor of 
Montana on April 30, 2001, May 21, 2001 and December 20, 2001. The 
April 30, 2001 and December 20, 2001 submittals revise the State's 
Administrative Rules of Montana (ARM) by updating Incorporation by 
Reference rules. The May 21, 2001 submittal repeals the State's Sulfur 
Oxide--Primary Copper rule. EPA is also announcing that on February 1, 
2002, we updated the delegation of authority for the implementation and 
enforcement of the New Source Performance Standards (NSPS) to the 
State. Finally, the Governor's April 30, 2001 submittal contains other 
SIP revisions which have been or will be addressed separately. The 
intended effect of this action is to make these revisions federally 
enforceable. The EPA is taking this action under section 110 of the 
Clean Air Act (CAA).

DATES: This rule is effective on October 28, 2002, without further 
notice, unless EPA receives adverse comment by September 27, 2002. If 
adverse comment is received, EPA will publish a timely withdrawal of 
the direct final rule in the Federal Register informing the public that 
the rule will not take effect.

ADDRESSES: Written comments may be mailed to Richard R. Long, Director, 
Air and Radiation Program, Mailcode 8P-AR, Environmental Protection 
Agency (EPA), Region 8, 999 18th Street, Suite 300, Denver, Colorado, 
80202. Copies of the documents relevant to this action are available 
for public inspection during normal business hours at the Air and 
Radiation Program, Environmental Protection Agency, Region 8, 999 18th 
Street, Suite 300, Denver, Colorado, 80202 and copies of the 
Incorporation by Reference material are available at the Air and 
Radiation Docket and Information Center, Environmental Protection 
Agency, 401 M Street, SW, Washington, D.C. 20460. Copies of the State 
documents relevant to this action are available for public inspection 
at the Montana Department of Environmental Quality, Air and Waste 
Management Bureau, 1520 E. 6th Avenue, Helena, Montana 59620.

FOR FURTHER INFORMATION CONTACT: Laurel Dygowski, EPA, Region 8, (303) 
312-6144.

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we'' or 
``our'' is used means EPA.

I. Analysis of the State's Submittal

A. Procedural Background

    The Act requires States to observe certain procedural requirements 
in developing implementation plans and plan revisions for submission to 
EPA. Section 110(a)(2) of the Act provides that each implementation 
plan admitted by a State must be adopted after reasonable notice and 
public hearing. Section 110(1) of the Act similarly provides that each 
revision to an implementation plan submitted by a State under the Act 
must be adopted by such State after reasonable notice and public 
hearing.
    EPA also must determine whether a submittal is complete and 
therefore warrants further EPA review and action (see section 110(k)(1) 
and 57 FR 13565). EPA's completeness criteria are set out at 40 CFR 
part 51, appendix V. EPA attempts to make completeness determinations 
within 60 days of receiving a submission. However, a

[[Page 55126]]

submittal is deemed complete by operation of law if a completeness 
determination is not made by EPA six months after receipt of 
submission.
    To entertain public comment, the State of Montana, after providing 
adequate public notice, held public hearings on July 5, 2000, January 
23, 2001 and May 10, 2001 to address revisions to the SIP. Following 
the public hearings and public comment period, the Montana Board of 
Environmental Review adopted the revisions. Revisions to ARM 17.8.102 
and 17.8.103 were adopted on September 15, 2000 and July 20, 2001, 
revisions to 17.8.323 were adopted on March 16, 2001 and revisions to 
17.8.302, 17.8.602, 17.8.702, 17.8.902, and 17.8.1002 were adopted on 
July 20, 2001.
    The Governor of Montana submitted the revisions to the SIP with 
letters dated April 30, 2001, May 21, 2001 and December 20, 2001. The 
SIP revisions were reviewed by EPA to determine completeness in 
accordance with the completeness criteria set out at 40 CFR part 51, 
appendix V. The submittals were found to be complete.

B. April 30, 2001 Revisions

1. ARM 17.8.102--Incorporation by Reference--Publication Dates
    This section was revised to update the dates of documents which are 
incorporated by reference. The 1999 editions of the Code of Federal 
Regulations, the Montana Code Annotated and the Administrative Rules of 
Montana are referenced in the regulation. These changes are necessary 
to allow the State to include the most recent editions of State 
statutes and rules and federal regulations. Specifically, incorporation 
by reference changes were made to ARM 17.8.102(1)(a), (c) and (d). 
Subsequent revisions were made to ARM 17.8.102(1)(a) and (d) in the 
December 20, 2001 submission, and these changes are discussed below.
    In addition, the State of Montana deleted language from the title 
of this section that refers to the availability of referenced 
documents. When the State proposed this rule in 1996, the State 
included information concerning the availability of referenced 
documents for the entire chapter of air quality rules. In response to 
comments, the State decided to delete this language from the final rule 
and place it in separate rules in each rule subchapter. However, the 
State did not amend the title of the rule to reflect this revision from 
the proposed rule. Specifically, the title of the rule has changed from 
``Incorporation by Reference--Publication Dates and Availability of 
Referenced Documents' to ``Incorporation by Reference--Publication 
Dates.'' EPA believes these revisions are minor and we are approving 
them into the SIP.
2. ARM 17.8.103--Incorporation by Reference
    The State revised ARM 17.8.103(1)(n) and (o) to correct references 
to statute subsections that were renumbered by the 1997 State 
legislature. Subsequent changes were made to ARM 17.8.103(1)(n) in the 
December 20, 2001 submission, and these changes are discussed below. 
EPA believes these revisions are minor and we are approving them into 
the SIP.
3. Other Revisions Submitted on April 30, 2001
    On April 30, 2001, the State submitted revisions to the Missoula 
City-County Air Pollution Control Program. EPA approved the Missoula 
City-County revisions on November 15, 2001 (66 FR 57391).
    Also on April 30, 2001, the State submitted a new credible evidence 
rule (ARM 17.8.132). EPA will act on the credible evidence rule in a 
separate notice.

C. May 21, 2001 Revisions

ARM 17.8.323--Sulfur Oxide Emissions-Primary Copper Smelter Rule
    This revision repeals ARM 17.8.323, Sulfur Oxide Emissions--Primary 
Copper Smelter Rule. This rule was adopted by the State in 1972 and has 
remained in effect since that time, with minor amendments made in 1981. 
At the current time, there are no primary copper smelters operating 
within the State, and ARM 17.8.323 has been superceded by the federal 
New Source Performance Standards (NSPS) for primary copper smelters (40 
CFR part 60, subpart P). The State believes the NSPS is more stringent 
than its Sulfur Oxide Emissions--Primary Copper Smelter rule. 
Additionally, the State has incorporated by reference the NSPS in ARM 
17.8.302(1)(b) and has been delegated the authority to implement them 
(see 66 FR 42427, August 13, 2001). Because there are no existing 
copper smelters in the State and any new copper smelter would be 
subject to NSPS, EPA believes it is acceptable to remove this rule from 
the SIP.

D. December 20, 2001 Revisions

1. ARM 17.8.102--Incorporation by Reference--Publication Dates
    This section was revised to update the dates of documents which are 
incorporated by reference. The 2000 editions of the Code of Federal 
Regulations and the Administrative Rules of Montana are referenced in 
the regulation. In addition, the incorporation by reference of the 
United States Code (U.S.C.) has been changed to refer to the 1994 
edition. These changes are necessary to allow the State to include the 
most recent editions of State statutes and rules and federal 
regulations. Specifically, incorporation by reference changes were made 
to ARM 17.8.102(1)(a), (b) and (d).
2. ARM 17.8.103--Incorporation by Reference
    a. 17.8.103(1)(m)--This section was revised to make minor 
corrections to citation references to the Clean Air Act (CAA). The 
reference to section 7412(b)(1) of the CAA was changed to 112(b)(1).
    b. 17.8.103(1)(n) and (p)--These sections were revised to update 
references to rules concerning hazardous waste to reflect renumbering 
of the State's rules. References to section 54 of the State rules have 
been changed to reference section 53. These sections also contain minor 
grammatical revisions.
3. ARM 17.8.302--Incorporation by Reference
    a. 17.8.302(1)(d)--This section was revised to update references to 
rules concerning hazardous waste to reflect renumbering of the State's 
rules. Reference to section 54 of the State rules have been changed to 
reference section 53.
    b. 17.8.302(1)(e)--This section was changed to correct a minor 
grammatical error.
    c. 17.8.302(1)(f)--This section was amended to incorporate by 
reference the Federal National Emission Standards for Hazardous Air 
Pollutants for Chemical Recovery Combustion Sources at Kraft, Soda, 
Sulfite, and Stand-Alone Semichemical Pulp Mills. The EPA adopted this 
rule on January 12, 2001 (40 CFR 63, subpart MM).
4. ARM 17.8.602(1) and (2)--Incorporation by Reference
    This section was revised to update references to rules concerning 
hazardous waste to reflect renumbering of the State's rules. Reference 
to section 54 of the State rules has been changed to reference section 
53.

[[Page 55127]]

5. ARM 17.8.702(1)(g)--Incorporation by Reference
    This section was revised to make minor corrections to citation 
references to the CAA.
6. ARM 17.8.902(1)(e) and ARM 17.8.1002(1)(e)--Incorporation by 
Reference
    These sections were revised to make minor corrections to citation 
references to the CAA. Specifically, reference to section 7503 of the 
CAA was changed to section 173. In addition, these sections were 
changed to correct minor grammatical errors.
    EPA believes the December 20, 2001 revisions (identified 1-6 above) 
are minor and we are approving them into the SIP.
    Also, pursuant to the State's December 20, 2001 submittal, which 
updated the effective date of the incorporated NSPS, on February 1, 
2002, EPA updated the delegation of authority for the implementation 
and enforcement of the NSPS to the State. The February 1, 2002 letter 
of delegation to the State follows:

Honorable Judy Martz
Governor of Montana, State Capitol, Helena, Montana 59620-0801

    Dear Governor Martz: On December 20, 2001 the State submitted a 
revision to the Administrative Rules of Montana (ARM) 17.8.102. 
Specifically, the State revised its rules to incorporate the July 1, 
2000 Code of Federal Regulations. This revision, in effect, updates 
the citation of the incorporated Federal New Source Performance 
Standards (NSPS) to July 1, 2000.
    Subsequent to States adopting NSPS regulations, EPA delegates 
the authority for the implementation and enforcement of those NSPS, 
so long as the State's regulations are equivalent to the Federal 
regulations. EPA reviewed the pertinent statutes and regulations of 
the State of Montana and determined that they provide an adequate 
and effective procedure for the implementation and enforcement of 
the NSPS by the State of Montana. Therefore, pursuant to section 
111(c) of the Clean Air Act (Act), as amended, and 40 CFR part 60, 
EPA hereby delegates its authority for the implementation and 
enforcement of the NSPS to the State of Montana as follows:
    (A) Responsibility for all sources located, or to be located, in 
the State of Montana subject to the standards of performance for new 
stationary sources promulgated in 40 CFR part 60. The categories of 
new stationary sources covered by this delegation are all NSPS 
subparts in 40 CFR part 60, as in effect on July 1, 2000. Note this 
delegation does not include the emission guidelines in subparts Cb, 
Cc, Cd, and Ce. These subparts require state plans which are 
approved under a separate process pursuant to Section 111(d) of the 
Act.
    (B) Not all authorities of NSPS can be delegated to States under 
Section 111(c) of the Act, as amended. The EPA Administrator retains 
authority to implement those sections of the NSPS that require: (1) 
Approving equivalency determinations and alternative test methods, 
(2) decision making to ensure national consistency, and (3) EPA 
rulemaking to implement. Therefore, of the NSPS of 40 CFR part 60 
being delegated in this letter, the enclosure lists examples of 
sections in 40 CFR part 60 that cannot be delegated to the State of 
Montana.
    (C) As 40 CFR part 60 is updated, Montana should revise its 
regulations accordingly and in a timely manner and submit to EPA 
requests for updates to its delegation of authority.
    This delegation is based upon and is a continuation of the same 
conditions as those stated in EPA's original delegation letter of 
May 18, 1977, to the Honorable Thomas L. Judge, then Governor of 
Montana, except that condition 6, relating to Federal facilities, 
was voided by the Clean Air Act Amendments of 1977. Please also note 
that EPA retains concurrent enforcement authority as stated in 
condition 3. In addition, if at any time there is a conflict between 
a State and Federal NSPS regulation, the Federal regulation must be 
applied if it is more stringent than that of the State, as stated in 
condition 9. EPA published its May 18, 1977 delegation letter in the 
notices section of the September 6, 1977 Federal Register (42 FR 
44573), along with an associated rulemaking notifying the public 
that certain reports and applications required from operators of new 
or modified sources shall be submitted to the State of Montana (42 
FR 44544). Copies of the Federal Register notices are enclosed for 
your convenience.
    Since this delegation is effective immediately, there is no need 
for the State to notify the EPA of its acceptance. Unless we receive 
written notice of objections from you within ten days of the date on 
which you receive this letter, the State of Montana will be deemed 
to accept all the terms of this delegation. EPA will publish an 
information notice in the Federal Register in the near future to 
inform the public of this delegation, in which this letter will 
appear in its entirety.
    If you have any questions on this matter, please contact me or 
have your staff contact Richard Long, Director of our Air and 
Radiation Program, at (303) 312-6005.
        Sincerely yours,
Jack W. McGraw,
Acting Regional Administrator.
    Enclosures.
    cc: Jan Sensibaugh, Director, Montana Department of 
Environmental Quality, John Wardell, 8MO.
Enclosure to February 1, 2002 Letter Delegating NSPS in 40 CFR Part 60, 
to the State of Montana

   Examples of Authorities in 40 CFR Part 60 Which Cannot Be Delegated
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     40 CFR subparts                         Section(s)
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A........................  60.8(b)(2) and (b)(3), and those sections
                            throughout the standards that reference
                            60.8(b)(2) and (b)(3); 60.11(b) and (e).
Da.......................  60.45a.
Db.......................  60.44b(f), 60.44b(g) and 60.49b(a)(4).
Dc.......................  60.48c(a)(4).
Ec.......................  60.56c(i), 60.8
Ka.......................  60.114a.
Kb.......................  60.111b(f)(4), 60.114b, 60.116b(e)(3)(iii),
                            60.116b(e)(3)(iv), and 60.116b(f)(2)(iii).
O........................  60.153(e).
DD.......................  60.302(d)(3).
GG.......................  60.332(a)(3) and 60.335(a).
VV.......................  60.482-1(c)(2) and 60.484.
XX.......................  60.502(e)(6)
AAA......................  60.531, 60.533, 60.534, 60.535, 60.536(i)(2),
                            60.537, 60.538(e) and 60.539.
JJJ......................  60.623.
NNN......................  60.663(e).
RRR......................  60.703(e).
SSS......................  60.711(a)(16), 60.713(b)(1)(i) and (ii),
                            60.713(b)(5)(i), 60.713(d), 60.715(a) and
                            60.716.
WWW......................  60.754(a)(5).
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[[Page 55128]]

II. Final Action

    EPA is approving the following revisions to the Montana SIP 
submitted on April 30, 2001, May 21, 2001and December 20, 2001: 
revisions to ARM 17.8.102, 103, 302, 602, 702, 902 and 1002 and the 
removal of ARM 17.8.323. EPA believes these revisions to the SIP are 
consistent with the Clean Air Act and EPA policy. We are also 
announcing that on February 1, 2002, we updated the delegation of 
authority for the implementation and enforcement of the NSPS to the 
State.
    Section 110(l) of the Clean Air Act states that a SIP revision 
cannot be approved if the revision would interfere with any applicable 
requirement concerning attainment and reasonable further progress 
towards attainment of the NAAQS or any other applicable requirements of 
the Act. The Montana SIP revisions that are the subject of this 
document do not interfere with the maintenance of the NAAQS or any 
other applicable requirement of the Act because of the following: (1) 
The update to incorporation by reference simply allows the State to 
include the most recent version of federal regulations; (2) the Sulfur 
Oxide Emissions--Primary Copper Smelter rule has been superceded by the 
federal NSPS regulations, which are more stringent than the existing 
rule; and (3) the NSPS delegation meets the requirements of section 
111(c) of the CAA and 40 CFR part 60. Therefore, section 110(l) 
requirements are satisfied.
    EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comments. However, in the ``Proposed Rules'' section of today's 
Federal Register publication, EPA is publishing a separate document 
that will serve as the proposal to approve the SIP revision if adverse 
comments be filed. This rule will be effective October 28, 2002, 
without further notice unless the Agency receives adverse comments by 
September 27, 2002.
    If the EPA receives adverse comments, EPA will publish a timely 
withdrawal in the Federal Register informing the public that the rule 
will not take effect. EPA will address all public comments in a 
subsequent final rule based on the proposed rule. The EPA will not 
institute a second comment period on this action. Any parties 
interested in commenting must do so at this time. Please note that if 
EPA receives adverse comment on an amendment, paragraph, or section of 
this rule and if that provision may be severed from the remainder of 
the rule, EPA may adopt as final those provisions of the rule that are 
not the subject of an adverse comment.

III. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
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 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 action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this 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 rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Public Law 104-4).
    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 action 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 action 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. This 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.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. 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. 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. 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 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 October 28, 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

40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

[[Page 55129]]

40 CFR Part 60

    Environmental protection, Air pollution control, Aluminum, ammonium 
sulfate plants, Beverages, Carbon monoxide, Cement industry, Coal, 
Copper, Drycleaners, Electric power plants, Fertilizers, Fluoride, 
Gasoline, Glass and glass products, Graphic arts industry, Household 
appliances, Insulation, Intergovernmental relations, Iron, Lead, Lime, 
Metallic and nonmetallic mineral processing plants, Metals, Motor 
vehicles, Natural gas, Nitric acid plants, Nitrogen dioxide, Paper and 
paper products industry, Particulate matter, Paving and roofing 
materials, Petroleum, Phosphate, Plastics materials and synthetics, 
Reporting and recordkeeping requirements, Sewage disposal, Steel, 
Sulfur oxides, Tires, Urethane, Vinyl, Waste treatment and disposal, 
Zinc.

    Dated: August 13, 2002.
Robert E. Roberts,
Regional Administrator, Region 8.

    40 CFR part 52, subpart BB of chapter I, title 40 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 BB--Montana

    2. Section 52.1370 is amended by adding paragraph (c)(55) to read 
as follows:


Sec. 52.1370  Identification of plan.

* * * * *
    (c) * * *
    (55) On April 30, 2001, May 21, 2001 and December 20, 2001, the 
Governor of Montana submitted revisions to the Administrative Rules of 
Montana. The State revised its Incorporation by Reference Rules and 
repealed a Sulfur Oxide Emissions--Primary Copper Smelter rule (ARM 
17.8.323). ARM 17.8.323, last incorporated by reference at 40 CFR 
52.1370(c)(49)(i)(A), is removed from the SIP.
    (i) Incorporation by reference.
    (A) Administrative Rules of Montana (ARM) sections 17.8.102(1)(a), 
(b), (c) and (d), effective 8/10/01; 17.8.103(1)(m), (n), (o), and (p), 
effective 8/10/01; 17.8.302(1)(d), (e) and (f), effective 8/10/01; 
17.8.602(1) and (2), effective 8/10/01; 17.8.702(1)(g), effective 8/10/
01; 17.8.902(1)(e), effective 8/10/01; and 17.8.1002(1)(e), effective 
8/10/01.
[FR Doc. 02-21944 Filed 8-27-02; 8:45 am]
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