[Federal Register Volume 76, Number 37 (Thursday, February 24, 2011)]
[Rules and Regulations]
[Pages 10249-10253]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-3996]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2010-0252; FRL-9269-9]


Approval and Promulgation of Air Quality Implementation Plans; 
Texas; Revisions To Control Volatile Organic Compound Emissions From 
Consumer Related Sources

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is taking direct final action to approve revisions to 
the Texas State Implementation Plan (SIP). We are approving revisions 
to Title 30 of the Texas Administrative Code (TAC), Chapter 115, which 
the State submitted on March 4, 2010. These revisions remove the Texas 
Portable Fuel Container rule as an ozone control strategy from the 
Texas SIP for the Control of Ozone Air Pollution. In the submittal, 
Texas demonstrates that Federal portable fuel container standards 
promulgated by EPA in 2007 are expected to provide equal to or greater 
emissions reductions than those resulting from the State regulations. 
The EPA is approving these revisions pursuant to section 110 of the 
Clean Air Act (CAA).

DATES: This direct final rule will be effective on April 25, 2011 
without further notice unless EPA receives relevant adverse comments by 
March 28, 2011. If adverse comments are 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: Submit your comments, identified by Docket No. EPA-R06-OAR-
2010-0252, by one of the following methods:
     Federal e-Rulemaking Portal: http://www.regulations.gov. 
Please follow the online instructions for submitting comments.
     EPA Region 6 ``Contact Us'' Web site: http://epa.gov/region6/r6comment.htm. Please click on ``6PD (Multimedia)'' and select 
``Air'' before submitting comments.
     E-mail: Mr. Guy Donaldson at [email protected]. Please 
also send a copy by e-mail to the person

[[Page 10250]]

listed in the FOR FURTHER INFORMATION CONTACT section below.
     Fax: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), at fax number 214-665-7263.
     Mail: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, 
Dallas, Texas 75202-2733.
     Hand or Courier Delivery: Mr. Guy Donaldson, Chief, Air 
Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross 
Avenue, Suite 1200, Dallas, Texas 75202-2733. Such deliveries are 
accepted only between the hours of 8 a.m. and 4 p.m. weekdays, and not 
on legal holidays. Special arrangements should be made for deliveries 
of boxed information.
    Instructions: Direct your comments to Docket No. EPA-R06-OAR-2010-
0252. EPA's policy is that all comments received will be included in 
the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Air Planning 
Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, 
Suite 700, Dallas, Texas 75202-2733. The file will be made available by 
appointment for public inspection in the Region 6 FOIA Review Room 
between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal 
holidays. Contact the person listed in the FOR FURTHER INFORMATION 
CONTACT paragraph below or Mr. Bill Deese at 214-665-7253 to make an 
appointment. If possible, please make the appointment at least two 
working days in advance of your visit. There will be a fee of 15 cents 
per page for making photocopies of documents. On the day of the visit, 
please check in at the EPA Region 6 reception area at 1445 Ross Avenue, 
Suite 700, Dallas, Texas.
    The State submittal is also available for public inspection during 
official business hours, by appointment, at the Texas Commission on 
Environmental Quality (TCEQ), Office of Air Quality, 12124 Park 35 
Circle, Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Ms. Dayana Medina, Air Planning 
Section (6PD-L), Environmental Protection Agency, Region 6, 1445 Ross 
Avenue, Suite 700, Dallas, Texas 75202-2733, telephone 214-665-7241; 
fax number 214-665-7263; e-mail address [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,'' 
and ``our'' means the EPA.

Outline

I. Background
II. What action is EPA taking?
III. Comparison of the Texas and Federal Portable Fuel Container 
Regulations
IV. What is the effect of this action?
V. Final Action
VI. Statutory and Executive Order Reviews

I. Background

    Section 110 of the CAA requires States to develop air pollution 
regulations and control strategies to ensure that air quality meets the 
National Ambient Air Quality Standards (NAAQS) established by EPA. The 
NAAQS are established under section 109 of the CAA and currently 
address six criteria pollutants: Carbon monoxide, nitrogen dioxide, 
ozone, lead, particulate matter, and sulfur dioxide.
    A SIP is a set of air pollution regulations, control strategies, 
other means or techniques, and technical analyses developed by the 
State, to ensure that air quality in the State meets the NAAQS. It is 
required by section 110 and other provisions of the CAA. A SIP protects 
air quality primarily by addressing air pollution at its point of 
origin. A SIP can be extensive, containing State regulations or other 
enforceable documents and supporting information such as emissions 
inventories, monitoring networks, and modeling demonstrations. Each 
State must submit regulations and control strategies to EPA for 
approval and incorporation into the Federally-enforceable SIP. 
Revisions to the SIP must comply with Section 110(l) of the CAA which 
states, ``Each revision to an implementation plan submitted by a State 
under this chapter shall be adopted by such State after reasonable 
notice and public hearing. The Administrator shall not approve a 
revision of a plan if the revision would interfere with any applicable 
requirement concerning attainment and reasonable further progress, or 
any other applicable requirement of this chapter.''

II. What action is EPA taking?

    EPA is taking direct final action to approve a revision to the 
Texas SIP for the Control of Ozone Air Pollution that pertains to 
regulations which control VOC emissions from consumer related sources. 
The revision repeals sections 115.620--115.622, 115.626, 115.627, and 
115.629 of 30 TAC Chapter 115, Control of Air Pollution from Volatile 
Organic Compounds, Subchapter G, Consumer-Related Sources. This 
revision consists of the repeal of the Texas Portable Fuel Container 
rule, as submitted to EPA by the TCEQ on March 4, 2010. This revision 
is substantive in nature, and eliminates the redundancy that has been 
created with the adoption by EPA of the Federal portable fuel container 
regulations in 2007. We are approving this revision in accordance with 
section 110 of the CAA.
    On October 27, 2004, the State adopted the Texas Portable Fuel 
Container rule, which set requirements for portable fuel containers and 
spouts sold or distributed in Texas that are manufactured on or after 
December 31, 2005. The Texas Portable Fuel Container rule established 
design criteria for ``no-spill'' portable fuel containers based 
primarily on standards adopted by the California Air Resources Board 
(CARB) in 2001. The purpose of the Texas Portable Fuel Container rule 
was to lower VOC emissions in Texas from portable fuel containers that 
spill or leak. EPA approved the Texas Portable

[[Page 10251]]

Fuel Container rule into the SIP on February 10, 2005 (70 FR 7041).
    On February 26, 2007, EPA adopted Federal portable fuel container 
regulations that set new national standards for gasoline, diesel, and 
kerosene portable fuel containers.\1\ Based on this rulemaking, all 
containers manufactured on or after January 1, 2009, are required to 
comply with the Federal standards. The Federal regulations can be found 
at 40 CFR part 59 subpart F. The Federal regulations are very similar 
to the revised portable fuel container regulations adopted by the CARB 
on September 15, 2005. The standards in the Federal portable fuel 
container regulations aim to reduce nationwide hydrocarbon emissions 
from containers due to evaporation, permeation, and spillage. The 
portable fuel container standards in the national regulations are more 
stringent than those found in the Texas regulations. Texas repealed the 
State portable fuel container regulations on February 10, 2010, and 
submitted this SIP revision to EPA on March 4, 2010. In their 
submittal, Texas asserted that the State portable fuel container 
regulations have become unnecessary with EPA's implementation of the 
more stringent Federal regulations, and that the repeal of the State 
rule is intended to eliminate duplication and to provide a clear 
regulatory structure for manufacturers who may otherwise become 
confused about which standards they are required to comply with.
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    \1\ See 72 FR 8432.
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    EPA is approving this revision to the SIP because it is expected 
that reliance on the more stringent Federal portable fuel container 
standards will ensure that emission reductions equivalent to or greater 
than those in the repealed Texas portable fuel container regulations 
will continue to be achieved in the State of Texas. Accordingly, it is 
expected that this SIP revision will not have a negative impact neither 
on the emission reductions claimed in the Texas SIP, nor in Texas' 
attainment of the NAAQS for ozone. Thus, EPA can approve this revision 
in compliance with section 110(l) of the CAA.

III. Comparison of the Texas and Federal Portable Fuel Container 
Regulations

    On October 27, 2004, the State adopted the Texas Portable Fuel 
Container rule, which set provisions specifying performance standards, 
testing requirements, and labeling requirements for portable fuel 
containers and spouts sold or distributed in Texas that are 
manufactured on or after December 31, 2005. The Texas Portable Fuel 
Container rule did not apply to or affect in any way the sale of 
portable fuel containers or spouts manufactured prior to December 31, 
2005. The Texas Portable Fuel Container rule established design 
criteria for ``no-spill'' portable fuel containers based primarily on 
presently outdated standards adopted by the CARB in 2001. The purpose 
of the Texas Portable Fuel Container rule was to lower VOC emissions in 
Texas from portable fuel containers that spill or leak. The State 
regulations mandated that portable fuel containers must have only one 
opening in the vessel. Spouts for these containers must (1) have an 
automatic shutoff device to prevent spilling, (2) automatically close 
and seal when removed from the fuel tank, (3) seal without leakage when 
affixed to the portable fuel container vessel, and (4) meet fuel flow 
rate and fuel flow cut-off standards.\2\
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    \2\ For a more detailed description of the PFC requirements in 
the Texas PFC regulations approved into the Texas SIP, please see 70 
FR 7041.
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    On February 26, 2007, EPA adopted Federal portable fuel container 
regulations that set new national standards for gasoline, diesel, and 
kerosene portable fuel containers.\3\ Based on this rulemaking, all 
containers manufactured on or after January 1, 2009, are required to 
comply with the Federal portable fuel container standards. As of July 
1, 2009, manufacturers and importers must not enter into U.S. commerce 
any products manufactured prior to January 1, 2009, which do not meet 
the Federal standards. The Federal regulations are very similar to the 
revised portable fuel container regulations adopted by the CARB on 
September 15, 2005. The standards in the Federal portable fuel 
container regulations aim to reduce nationwide hydrocarbon emissions 
from containers due to evaporation, permeation, and spillage. Rather 
than establishing design criteria for portable fuel containers, the 
Federal regulations established a performance-based standard of 0.3 
grams per gallon per day (g/gal/day) of hydrocarbons to control 
evaporative and permeation losses. The standard is based on the 
performance of best available control technologies, such as durable 
permeation barriers, automatically closing spouts, and cans that are 
well-sealed, and it is expected that in order to comply with the 
performance-based standard, manufacturers will incorporate these 
control technologies in the design of their containers. The Federal 
standard is measured based on the emissions from the container over a 
diurnal test cycle, after the container has been preconditioned by 
going through three durability aging cycles, a fuel soak to allow the 
hydrocarbon permeation rate to stabilize, and a durability 
demonstration of the spout. These test procedures ensure that 
containers meet the emissions standard over a range of in-use 
conditions such as different temperatures, different fuels, and taking 
into consideration factors affecting durability.\4\ In order to insure 
that containers meet the emission standard in use over the life of the 
container, the Federal regulations also established a new certification 
and compliance program. The Federal regulations also require an 
emissions warranty period of one year to be provided by the 
manufacturer of the portable fuel container to the consumer. The 
warranty covers emissions-related materials defects and breakage under 
normal use, which promotes the objective of the rule by helping ensure 
that manufacturers will ``stand behind'' their product if they fail in-
use, thus improving product design and performance.
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    \3\ See 72 FR 8432.
    \4\ A more detailed description of the test procedures can be 
found at 72 FR 8432.
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    Comparison of the State and Federal regulations demonstrates that 
the Federal regulations adopted more stringent portable fuel container 
standards than those found in the Texas regulations.\5\ While the Texas 
regulations merely adopted design criteria for portable fuel containers 
and spouts, the performance-based standard established by the Federal 
regulations, along with the various other requirements, including test 
procedures, and the certification and compliance program, help ensure 
that containers meet the emission standard over a range of in-use 
conditions. Although the Federal regulations do not specify required 
design criteria for portable fuel containers, it is expected that in 
order to comply with the performance-based standard, manufacturers will 
have to use best available control technologies such as durable 
permeation barriers, automatically closing spouts, and cans that are 
well-sealed.
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    \5\ See the TSD for a complete description of our evaluation. 
The TSD can be found in the docket for this rulemaking, and is 
available at http://www.regulations.gov. The docket number is EPA-
R06-OAR-2010-0252.
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    In the submittal Texas submitted to EPA on November 16, 2004, 
requesting approval of the Texas Portable Fuel Container rule into the 
SIP, Texas estimated that the reduction in spills and evaporation 
expected from the State

[[Page 10252]]

portable fuel container regulations would eventually reduce statewide 
emissions from portable fuel containers by 45%.\6\ In the February 26, 
2007 rulemaking in which EPA approved the Federal portable fuel 
container regulations, we provided estimates of the national reductions 
in VOC emissions expected from the Federal standards. We estimated that 
in 2010, national VOC emissions from portable fuel containers will be 
reduced by 19% because of reduced permeation, spillage, and evaporative 
emissions.\7\ We also estimated that in 2015, 2020, and 2030, the 
national VOC emissions from portable fuel containers will be reduced by 
61% for each year. In the submittal for the present rulemaking, Texas 
also submitted a table comparing the estimated statewide VOC emissions 
reductions in ozone season tons per day expected from the Federal and 
State portable fuel container regulations.\8\ According to these 
estimates, the statewide VOC emissions reductions expected from the 
Federal and State regulations for the year 2002 are equal to each 
other. For each of the years 2008, 2011, 2014, 2017, 2018, and 2019, 
the estimated statewide VOC emissions reductions expected from the 
Federal portable fuel container regulations exceed those expected from 
the State regulations.
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    \6\ This submittal dated November 16, 2004, can be found in the 
docket for the rulemaking in which we approved the Texas PFC 
regulations (70 FR 7041), and is available at http://www.regulations.gov. The docket number is R06-OAR-2005-TX-0001.
    \7\ See 72 FR 8432.
    \8\ The submittal can be found in the docket for this 
rulemaking, and is available at http://www.regulations.gov. The 
docket number is EPA-R06-OAR-2010-0252.
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IV. What is the effect of this action?

    This action approves revisions to the Texas SIP that pertain to 
regulations to control VOC emissions from consumer related sources. 
These revisions remove the Texas portable fuel container regulations as 
an ozone control strategy from the Texas SIP for the Control of Ozone 
Air Pollution because more stringent national standards are in place. 
Portable fuel containers sold or distributed in Texas must meet 
national VOC emission standards and related requirements found in 40 
CFR part 59 subpart F.

V. Final Action

    EPA is approving revisions to the Texas SIP pertaining to control 
of VOC emissions from consumer related sources.
    We have evaluated the State's submittal and have determined that it 
meets the applicable requirements of the Clean Air Act and EPA air 
quality regulations. Therefore, we are approving revisions to the Texas 
SIP which repeal the Texas Portable Fuel Container rule because it is 
expected that reliance on the more restrictive Federal portable fuel 
container standards will ensure that emission reductions equivalent to 
or greater than those in the repealed Texas portable fuel container 
regulations will continue to be achieved. Accordingly, it is expected 
that this SIP revision will not have a negative impact neither on the 
emission reductions claimed in the Texas SIP, nor in Texas' attainment 
of the NAAQS for ozone.
    The EPA is publishing this rule without prior proposal because we 
view this as a noncontroversial amendment and anticipate no relevant 
adverse comments. However, in the proposed rules section of this 
Federal Register publication, we are publishing a separate document 
that will serve as the proposal to approve the SIP revisions if 
relevant adverse comments are received. This rule will be effective on 
April 25, 2011 without further notice unless we receive relevant 
adverse comments by March 28, 2011. If we receive relevant adverse 
comments, we will publish a timely withdrawal in the Federal Register 
informing the public that the rule will not take effect. We will 
address all public comments in a subsequent final rule based on the 
proposed rule. We will not institute a second comment period on this 
action. Any parties interested in commenting must do so now. Please 
note that if we receive adverse comments on an amendment, paragraph, or 
section of this rule and if that provision may be severed from the 
remainder of the rule, we may adopt as final those provisions of the 
rule that are not the subject of an adverse comment.

VI. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve State 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves State law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by State law. 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 Clean Air Act; 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 the SIP is not 
approved to apply in Indian country located in the State, and EPA notes 
that 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

[[Page 10253]]

this action must be filed in the United States Court of Appeals for the 
appropriate circuit by April 25, 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 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Ozone, Volatile organic 
compounds.

    Dated: February 9, 2011.
Al Armendariz,
Regional Administrator, Region 6.

    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart SS--Texas

0
2. Section 52.2270 is amended as follows:
0
a. The table in paragraph (c) entitled ``EPA Approved Regulations in 
the Texas SIP'' is amended under Chapter 115 (Reg 5), Subchapter G, by 
removing the centered heading ``Division 2: Portable Fuel Containers'' 
and by removing the entries under Division 2 for Sections 115.620 
through 115.629.
0
b. The second table in paragraph (e) entitled ``EPA Approved 
Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas 
SIP'' is amended by adding to the end of the table a new entry entitled 
``Texas Portable Fuel Container State Implementation Plan'' to read as 
follows:


Sec.  52.2270  Identification of plan

* * * * *
    (e) * * *

              EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas SIP
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                                        Applicable           State
      Name of SIP  provision          geographic or       submittal/     EPA approval date         Comments
                                    nonattainment area  effective date
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                                                  * * * * * * *
Texas Portable Fuel Container      All Affected 1997          3/4/2010  2/24/2011 [Insert
 State Implementation Plan.         Eight-Hour Ozone                     FR page number
                                    Standard                             where document
                                    Nonattainment And                    begins].
                                    Near Nonattainment
                                    Areas In The State
                                    Of Texas.
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[FR Doc. 2011-3996 Filed 2-23-11; 8:45 am]
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