[Federal Register Volume 76, Number 7 (Tuesday, January 11, 2011)]
[Rules and Regulations]
[Pages 1532-1535]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-221]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[EPA-R09-OAR-2010-0718; FRL-9250-1]


Determinations of Attainment by the Applicable Attainment Date 
for the Hayden, Nogales, Paul Spur/Douglas PM10 
Nonattainment Areas, Arizona

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is making final determinations that the Hayden, Nogales, 
and Paul Spur/Douglas nonattainment areas in Arizona attained the 
National Ambient Air Quality Standard (NAAQS) for particulate matter 
with an aerodynamic diameter of less than or equal to a nominal ten 
micrometers (PM10) by their applicable attainment dates of 
December 31, 1994. On the basis of these determinations, EPA concludes 
that these three ``moderate'' nonattainment areas are not subject to 
reclassification by operation of law to ``serious.'' EPA is not 
finalizing determinations with respect to the air quality in these 
areas subsequent to their 1994 attainment dates.

DATES: Effective Date: This rule is effective on February 10, 2011.

ADDRESSES: EPA has established docket number EPA-R09-OAR-2010-0718 for 
this action. The index to the docket is available electronically at 
http://www.regulations.gov and in hard copy at EPA Region IX, 75 
Hawthorne Street, San Francisco, California. While all documents in the 
docket are listed in the index, some information may be publicly 
available only at the hard copy location (e.g., copyrighted material), 
and some may not be publicly available in either location (e.g., CBI). 
To inspect the hard copy materials, please schedule an appointment 
during normal business hours with the contact listed in the FOR FURTHER 
INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Wienke Tax at telephone number: (415) 
947-4192; e-mail address: [email protected], or the above EPA, Region 
IX address.

SUPPLEMENTARY INFORMATION: Throughout this document, wherever ``we'', 
``us'' or ``our'' are used, we mean EPA. Information is organized as 
follows:

Table of Contents

I. Context for Today's Actions
II. Summary of Proposed Actions
III. Public Comments and EPA Responses
IV. Final Action
V. Statutory and Executive Order Reviews

I. Context for Today's Actions

    On November 2, 2010 (75 FR 67220), we published a direct final rule 
that made certain determinations we are making in this document. On 
November 2, 2010 (75 FR 67303), we also published a corresponding 
proposed rule in the event that we received adverse comment leading us 
to withdraw the direct final rule. In our direct final rule, we 
indicated that we would withdraw the direct final rule if we received 
adverse comments, and address public comments in a subsequent final 
rule based on the proposed rule. On November 3, 2010, we received 
adverse comments, and subsequently withdrew the direct final rule (75 
FR 72964, November 29, 2010). Today, we take final action based on our 
November 2, 2010 proposed rule and our consideration of the public 
comments received.

II. Summary of Proposed Actions

    In our November 2, 2010 proposed rule, we proposed to determine, 
pursuant to section 188(b)(2) of the Clean Air Act, that three Arizona 
``moderate'' PM10 nonattainment areas (Hayden, Nogales, and 
Paul Spur/Douglas) had attained the PM10 NAAQS by the 
applicable attainment date (December 31, 1994), and that, based on 
these proposed determinations, we concluded that none of these areas is 
subject to reclassification to serious by operation of law. We also 
proposed to find that more recent data for 2007-2009 show none of the 
areas is currently attaining the standard. More detailed information is 
contained in the November 2 direct final rule, which is summarized in 
the paragraphs that follow.
    First, our direct final rule described the relevant NAAQS, 150 
micrograms per cubic meter ([micro]g/m\3\), 24-hour average, against 
which monitored ambient concentrations of PM10 in the three 
subject areas (Hayden,\1\ Nogales,\2\

[[Page 1533]]

and Paul Spur/Douglas \3\) are to be compared in evaluating whether the 
areas attained the standard. Next, we described the designations and 
classifications of these three areas, all of which are classified as 
``moderate'' nonattainment with an applicable attainment date of 
December 31, 1994 under CAA section 188(c). Also, we discussed the 
status of the various air quality plans submitted by the State of 
Arizona to address moderate area PM10 requirements in the 
three subject areas (Hayden, Nogales, Paul Spur/Douglas).
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    \1\ The Hayden planning area straddles Gila and Pinal counties 
at the confluence of the Gila and San Pedro rivers in east central 
Arizona. The nonattainment area covers roughly 700 square miles of 
mountainous terrain. Cities and towns within this area include 
Kearney (population roughly 2,800), Hayden (population roughly 800), 
and Winkelman (population roughly 400).
    \2\ The Nogales planning area covers approximately 70 square 
miles along the border with Mexico within Santa Cruz County. The 
only significant population center in this area is the city of 
Nogales with a population of roughly 21,000. The population of 
Nogales, Mexico, which lies just across the border from Nogales, 
Arizona is roughly 160,000.
    \3\ The Paul Spur/Douglas planning area covers approximately 220 
square miles along the border with Mexico within Cochise County. 
Cities and towns within this area include Douglas (population 
roughly 20,000) and Pirtleville (population roughly 1,500). The 
population of Agua Prieta, Mexico, which lies just across the border 
from Douglas is roughly 70,000.
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    In our direct final rule, we also described how EPA makes 
attainment determinations. As explained therein, the 24-hour 
PM10 standard is attained when the expected number of days 
per calendar year with a 24-hour concentration in excess of the 
standard (referred to herein as an ``exceedance''), as determined in 
accordance with 40 CFR part 50, appendix K, is equal to or less than 
one.\4\ See 40 CFR 50.6 and 40 CFR part 50, appendix K. Generally, EPA 
determines whether an area's air quality is meeting the PM10 
NAAQS based upon complete (minimum of 75 percent of scheduled 
PM10 samples recorded in each quarter), quality-assured data 
gathered at established state and local air monitoring stations (SLAMS) 
and national air monitoring stations (NAMS) in the nonattainment area 
and entered into the EPA Air Quality System (AQS) database. Attainment 
of the 24-hour PM10 standard is determined by calculating 
the expected number of exceedances of the standard in a year. The 24-
hour PM10 standard is attained when the expected number of 
exceedances averaged over a three-year period is less than or equal to 
one at each monitoring site within the nonattainment area. Generally, 
three consecutive years of air quality data are required to show 
attainment of the 24-hour PM10 standard. See 40 CFR part 50 
and appendix K.
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    \4\ An exceedance is defined as a daily value that is above the 
level of the 24-hour standard (150 [micro]g/m\3\) after rounding to 
the nearest 10 [micro]g/m\3\ (i.e., values ending in 5 or greater 
are to be rounded up). Thus, a recorded value of 154 [micro]g/m\3\ 
would not be an exceedance since it would be rounded to 150 
[micro]g/m\3\ whereas a recorded value of 155 [micro]g/m\3\ would be 
an exceedance since it would be rounded to 160 [micro]g/m\3\. See 40 
CFR part 50, appendix K, section 1.0.
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    Based on the available monitoring data for the 1992-1994 period 
collected in the three subject Arizona nonattainment areas (Hayden, 
Nogales,\5\ and Paul Spur/Douglas) and the application of the 
PM10 NAAQS attainment criteria described above, we proposed 
to determine that all three areas attained the PM10 NAAQS by 
the December 31, 1994 attainment date for ``moderate'' areas, and thus, 
are not subject to reclassification to ``serious'' by operation of law 
under CAA section 188(b)(2). In addition, we proposed to find that, 
although the three areas attained the standard by the applicable 
attainment date, none appears to be currently attaining based on the 
most recent available data, although Hayden appears likely to attain in 
the near future if current trends continue. We indicated that we plan 
to address the PM10 needs for Nogales and Paul Spur/Douglas 
areas over the next few years. In today's action, EPA is not finalizing 
any of the proposed determinations with respect to recent data. 
Instead, we plan to further assess recent data, including data 
available for 2010 and 2011, in the context of future rulemaking 
actions on the submitted, but not yet approved, air quality plans for 
these areas. Section 188(b)(2) obligates EPA to make a determination 
only as to whether these areas have attained by their applicable 1994 
attainment dates, and we are not required by that section to make 
determinations regarding subsequent time periods. Other portions of the 
Clean Air Act authorize EPA to address current air quality issues as 
needed through separate statutory authority and mechanisms.
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    \5\ Table 2 (``Summary of PM10 Monitoring Data, 
Nogales Nonattainment Area, 1992-1994''), as published in our 
November 2, 2010 direct final rule, contains a publisher's error 
that erroneously combines certain columns and rows and thereby 
causes a mismatch between concentrations and the corresponding years 
in which they were monitored. The correct values for the highest 24-
hour PM10 concentrations ([micro]g/m\3\) are 153 in 1992, 
119 for 1993, and 116 for 1994 from the Nogales Post Office monitor. 
Also, the maximum concentrations shown for the other three monitors 
located in Nogales were collected in 1994, not 1993. These errors do 
not appear in the version of the direct final rule that was signed 
by the EPA Region IX Regional Administrator. In any event, these 
errors would not have affected the outcome of our attainment 
determinations since none of the values for any of the years 
exceeded 154 [micro]g/m\3\.
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    Please see our November 2, 2010 direct final rule for more 
information about our proposal of the same date.

III. Public Comments and EPA Responses

    As noted previously, we published a proposed rule (75 FR 67303) on 
November 2, 2010. We received comments from WildEarth Guardians 
(``WildEarth''), dated November 3, 2010, challenging EPA's 
interpretation of CAA section 188(b)(2) that limits reclassifications 
by operation of law to the air quality conditions as of the applicable 
attainment date.
    Comment: WildEarth contends that section 188(b)(2) of the Clean Air 
Act does not state that the EPA is limited only to considering air 
quality data up until the attainment date when it makes its finding, 
but rather requires any moderate nonattainment area that fails to 
attain ``after the applicable attainment date'' to be reclassified to 
``serious'' regardless of whether EPA makes a timely finding.
    WildEarth finds further support for its interpretation by noting 
that CAA section 188(b)(2) uses both past-tense and present-tense 
wording with regards to the context of EPA's assessment of an area's 
attainment status. Specifically, the statute states that EPA's finding 
``shall determine whether the area attained * * *'' (emphasis added), 
but then states ``If the Administrator finds that any Moderate Area is 
not in attainment * * *'' (emphasis added). WildEarth contends that use 
of both the past-tense and present-tense in this context indicates 
that, although the Clean Air Act intended EPA to assess an area's 
attainment status based on whether it attained the NAAQS by the 
attainment date, it also required that a moderate nonattainment area be 
reclassified to ``serious'' if it ``is not in attainment'' at the time 
the EPA makes its finding. If EPA's assessment were to be limited only 
to whether an area ``attained'' in the past, WildEarth contends that it 
would render meaningless the Clean Air Act's substantive requirement 
that a moderate area be bumped up to ``serious'' if it ``is not in 
attainment'' when EPA makes its finding. WildEarth contends that, as 
such, EPA's interpretation reads a substantive provision out of the 
Clean Air Act.
    Response: First, we note that WildEarth does not object to any 
aspect of EPA's proposed rulemaking other than the interpretation as to 
the legal consequences that they contend would flow from finalizing 
determinations that, although the three areas attained by their 
applicable 1994 attainment dates, sixteen years later they are not 
currently in attainment. First, we note that in today's rulemaking EPA 
is not finalizing any proposed determinations with respect to the air 
quality in these areas subsequent to the areas' applicable dates. Nor 
does section 188(b)(2) impose such an obligation. Pursuant to section

[[Page 1534]]

188(b)(2), EPA is finalizing here its determinations that the areas 
attained the standard ``by that [applicable attainment] date.'' Section 
188(b)(2) does not impose upon EPA any obligation to make a final 
determination of attainment except with respect to an area's applicable 
attainment date.
    Thus, it is not necessary for the purposes of our final actions 
here, which are limited to determinations of attainment as of the 
areas' applicable attainment dates, to respond to WildEarth's 
assertions regarding the legal consequences of determinations regarding 
air quality in subsequent decades. Nevertheless, we note our 
disagreement with WildEarth's interpretation that CAA section 188(b)(2) 
would require reclassification of any moderate PM10 
nonattainment area if EPA were to make a final determination that the 
area was not attaining after the applicable attainment date, regardless 
of the air quality conditions as of the applicable attainment date 
itself.
    EPA's interpretation of section 188(b)(2) as requiring and 
authorizing reclassification to serious based only on air quality 
conditions as of the applicable attainment date, and not thereafter, is 
confirmed by a reading of that section in its entirety:

    Within 6 months following the applicable attainment date for a 
PM-10 nonattainment area, the Administrator shall determine whether 
the area attained the standard by that date. If the Administrator 
finds that any Moderate Area is not in attainment after the 
applicable attainment date--
    (A) The area shall be reclassified by operation of law as a 
Serious Area; and
    (B) the Administrator shall publish a notice in the Federal 
Register no later than 6 months following the attainment date, 
identifying the area as having failed to attain and identifying the 
reclassification described under subparagraph (A).

    While the second sentence of section 188(b)(2) contains the 
language quoted by WildEarth (``any Moderate Area is not in attainment 
after the applicable attainment date''), it is clear that in the 
context of the first sentence of the provision, which is the sentence 
that establishes the duty to make an attainment determination, that the 
duty is to ``determine whether the area attained the standard by that 
date [referring to the phrase ``applicable attainment date'' in the 
opening clause of the first sentence].'' Thus, EPA's duty is to 
determine whether the area attained by its attainment date and the 
language in the second sentence regarding a finding after the 
attainment date may reasonably be interpreted as referring to the date 
the finding is made, which would necessarily be after the attainment 
date, not to the date used in the determination as the benchmark for 
determining attainment.
    Further, the second sentence of CAA section 188(b)(2), i.e., the 
one that includes the language cited by WildEarth (``any Moderate Area 
is not in attainment after the applicable attainment date''), includes 
two subparagraphs, one of which provides for reclassification of a 
moderate area to serious by operation of law and another that refers to 
publication of a notice in the Federal Register six months after the 
attainment date, identifying the area ``as having failed to attain'' 
that clearly relates back to the earlier, legally relevant attainment 
date (in this case, December 31, 1994). Thus, whether EPA's obligation 
under CAA section 188(b)(2) is viewed in its entirety, or whether the 
second sentence of CAA section 188(b)(2) is viewed in isolation, it is 
clear that the question of whether an area must be reclassified is 
considered along with the question of whether an area has achieved 
attainment by the attainment date.\6\ To accept WildEarth's 
interpretation would be to ignore the reference to a specific point in 
time (``no later than 6 months following the attainment date'') for 
publishing a notice in subparagraph (B) of CAA section 188(b)(2) in 
identifying the appropriate benchmark for reclassifying moderate areas 
to serious under subparagraph (A).\7\
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    \6\ EPA's sole obligation under CAA section 188(b)(2) is to 
determine whether the three Arizona areas attained the 
PM10 standard by the applicable attainment date, and 
while the statute requires EPA to make this determination within six 
months of the applicable attainment date, the applicable attainment 
date (in this case, December 31, 1994) remains the same no matter 
when EPA actually makes the determination. EPA was not obligated in 
the November 2, 2010 proposed rule, nor in this final rule, to 
determine whether the areas are attaining the standard at the 
present time. As stated above, EPA is not here finalizing any 
determinations as to the current air quality in the area, but is 
merely noting what more recent monitoring data suggest about the 
current air quality area quality in these areas, sixteen years after 
the 1994 attainment dates that are the subject of the final 
rulemaking here. We included the observations about current air 
quality in our proposed rule because we believe that such 
observations, and the related discussion of future Agency actions, 
is of as much public interest, if not more, as are the 
determinations of the air quality conditions that occurred sixteen 
years ago.
    \7\ While EPA believes that the plain language of section 
188(b)(2) supports EPA's interpretation that reclassifications to 
``serious'' are to be based only on air quality conditions as of the 
applicable attainment date, and not thereafter, EPA believes that, 
to the extent section 188(b)(2) is ambiguous, EPA's interpretation 
is reasonable in that it is consistent with the statutory scheme for 
SIP revisions upon findings of failure to attain under subpart 1 and 
for mandatory reclassifications under subparts 2 and 3 for ozone and 
carbon monoxide areas. See CAA sections 179(c) and (d), 181(b)(2) 
and 186(b)(2) and compare the language from these sections to 
section 188(b)(2). While the language for such SIP revisions under 
subpart 1 and for reclassifications for ozone and carbon monoxide 
areas under subparts 2 and 3 uses slightly different language to 
link SIP revisions and reclassifications solely to air quality ``as 
of the attainment date'' than the language for reclassification of 
PM10 areas under subpart 4, we find no reason that 
Congress would have established a different scheme for 
PM10 areas under subpart 4 than generally applicable 
under subpart 1 or for ozone or carbon monoxide areas under subparts 
2 and 3. For further explanation of EPA's interpretation of 
reclassification under the Clean Air Act, see the responses to 
comments in EPA's final Determination of Attainment of 1-hour Ozone 
Standard as of November 15, 1993 for the Birmingham, AL Marginal 
Ozone Nonattainment Area (67 FR 67113, November 4, 2002). To the 
extent relevant here, EPA reaffirms and incorporates by reference 
the responses to comments contained in our November 4, 2002 final 
rule.
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    Commenter's interpretation of section 188(b)(2) fails to harmonize 
the second sentence of the section with the first sentence and with the 
sentences that follow. Indeed, it could more plausibly be argued that 
the second sentence adds a cumulative condition for reclassification--
that is, an area will be reclassified if and only it fails to attain by 
its attainment date and ``if the Administrator finds [the area] is not 
in attainment after the applicable attainment date.'' Contrary to 
commenter's contention, EPA does not believe that Congress intended for 
the language regarding determining attainment as of the attainment date 
not to apply when an attainment determination occurs more than six 
months after the attainment date. The second sentence of section 
188(b)(2) does not somehow override the language of the first sentence 
and require reclassification if an area slips back into nonattainment 
after its attainment date. EPA's reading is consistent with the 
language of section 188(b)(2) and with other provisions of the Clean 
Air Act, as well as with its structure and purpose. EPA believes that 
other parts of the Act, notably section 110(k)(5), provide the means to 
address nonattainment that occurs after an area's attainment date. 
Contrary to commenter's contention, EPA's reading does not 
``nullif[y]'' applicable text. Rather, EPA is properly reading 
188(b)(2) as requiring EPA to determine whether an area has attained by 
its attainment date, with reclassification as a consequence for areas 
that fail to do so.
    In the present case, the air quality data from the years 1992-1994 
are the relevant data for determining whether the three Arizona areas 
must be reclassified to serious because their applicable attainment 
date is December 31, 1994, and because we have

[[Page 1535]]

determined that the areas did in fact attain by the applicable 
attainment date, they are not subject to reclassification to serious by 
operation of law under CAA section 188(b)(2).
    This does not mean that the Clean Air Act provides no means to 
address NAAQS violations in areas that had initially attained the 
standard by the applicable attainment date but then experience 
subsequent violations years after the applicable attainment date. For 
example, EPA could issue a ``SIP call'' under CAA section 110(k)(5) if 
EPA were to determine that the SIP is ``substantially inadequate'' to 
attain the PM10 NAAQS in areas where violations of the 
PM10 NAAQS occur after the applicable attainment date. Such 
SIP calls require the State to revise the SIP as necessary to correct 
the inadequacies. The SIP call, unlike reclassification, is capable of 
addressing and correcting the specific circumstances causing 
nonattainment sixteen years after the applicable attainment date. While 
EPA has no current plans to issue SIP calls for any of the three 
subject Arizona moderate PM10 nonattainment areas, EPA is 
working with the State of Arizona to update the state's earlier-
submitted, but not yet EPA-approved air quality plans. EPA intends to 
ensure that the plans meet all applicable requirements for moderate 
PM10 nonattainment areas through both cooperative efforts 
with the State and through subsequent EPA rulemaking actions on the 
updated plans.

IV. Final Action

    EPA has reviewed the comments that have been submitted, and 
concluded that none of them convince us to change our action as 
proposed on November 2, 2010 with respect to determinations of 
attainment as of the applicable attainment date. Thus, under section 
188(b)(2) of the Clean Air Act, and based on sufficient, quality-
assured data, we take final action to determine that the Hayden, 
Nogales, and Paul Spur/Douglas PM10 nonattainment areas 
attained the 24-hour PM10 NAAQS by the applicable attainment 
date, December 31, 1994. On the basis of this determination, EPA 
concludes that these three ``moderate'' nonattainment areas are not 
subject to reclassification to ``serious'' by operation of law.

V. Statutory and Executive Order Reviews

    This action merely make determinations based on air quality data 
and does not impose any additional Federal requirements. For that 
reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997); is not a significant regulatory action subject 
to Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because it will not impose substantial direct costs on tribal 
governments or preempt tribal law.
    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 action 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 March 14, 2011. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action 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, 
Particulate matter, Wilderness areas.

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

    Dated: December 30, 2010.
Jared Blumenfeld,
Regional Administrator, EPA Region IX.
[FR Doc. 2011-221 Filed 1-10-11; 8:45 am]
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