[Federal Register Volume 88, Number 242 (Tuesday, December 19, 2023)]
[Rules and Regulations]
[Pages 87720-87723]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-27754]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2023-0375; EPA-HQ-OAR-2021-0663; FRL-11233-02-R8]


Air Plan Approval; Wyoming; Interstate Transport of Air Pollution 
for the 2015 8-Hour Ozone National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is finalizing 
approval of the portion of a Wyoming State Implementation Plan (SIP) 
submission addressing interstate transport for the 2015 8-hour ozone 
national ambient air quality standards (NAAQS). The ``good neighbor'' 
or ``interstate transport'' provision requires that each state's SIP 
contain adequate provisions to prohibit emissions from within the state 
from significantly contributing to nonattainment or interfering with 
maintenance of the NAAQS in other states. This requirement is part of 
the broader set of ``infrastructure'' requirements, which are designed 
to ensure that the structural components of each state's air quality 
management program are adequate to meet the state's responsibilities 
under the Clean Air Act (CAA).

DATES: This rule is effective on January 18, 2024.

ADDRESSES: There are two dockets supporting this action, EPA-R08-OAR-
2023-0375 and EPA-HQ-OAR-2021-0663. Docket No. EPA-R08-OAR-2023-0375 
contains information specific to Wyoming, including the August 14, 2023 
notice of proposed rulemaking that supports this final action. Docket 
No. EPA-HQ-OAR-2021-0663 contains additional modeling files, emissions 
inventory files, technical support documents, and other relevant 
supporting documentation regarding interstate transport of emissions 
for the 2015 8-hour ozone NAAQS which are being used to support this 
action. All documents in the docket are listed in the https://www.regulations.gov index. Although listed in the docket, some 
information may not be publicly available, e.g., confidential business 
information (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 electronically in https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Mr. Thomas Uher, Office of Air Quality 
Planning and Standards, Air Quality Policy Division, Mail Code C539-04, 
109 TW Alexander Drive, Research Triangle Park, NC 27711; telephone 
number: (919) 541-5534; email address: [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean the EPA.

I. Background

    On August 14, 2023 (88 FR 54998), the EPA proposed to approve the 
interstate transport prongs 1 and 2 portions of Wyoming's January 3, 
2019 submission. An explanation of the CAA requirements and the EPA's 
reasons for proposing approval were provided in the notice of proposed 
rulemaking and will not be restated here. The public comment period for 
the proposed approval ended on September 13, 2023. The EPA received 
eight comment submissions on the proposed action, one of which was 
submitted in error as it pertains to a rulemaking by a different 
agency. Of the seven remaining submissions, six of the commenters were 
in support of our proposed action, and one commenter (Sierra Club) was 
opposed. A summary of the relevant comments and the EPA's responses are 
provided below.

II. Response to Comments

    Comment: Commenter PacifiCorp argued that the EPA lacks the 
authority to withdraw and re-propose action on Wyoming's SIP, stating 
that ``EPA does not have or need the authority to undertake the current 
re-proposal to solicit additional record evidence when the existing 
record is adequate and appropriate to approve Wyoming's SIP.'' The 
commenter asserts that, because the information available to the EPA 
(specifically the 2016v3 modeling) was also available to us when we did 
not take final action on Wyoming's SIP (citing 88 FR 9336; Feb. 13, 
2023), the EPA ``cannot artificially extend its action by deferral and 
then re-propose to obtain more information.'' The commenter states that 
the EPA did not provide a reason why a new rulemaking for Wyoming was 
necessary when we were able to take final action on Minnesota and 
Wisconsin's SIPs although our modeling-based determination had changed 
between proposal and final. The commenter also states that ``EPA's re-
proposal unlawfully attempts to manipulate and unilaterally extend 
EPA's statutorily-fixed deadlines for SIP actions'' because the CAA 
deadline for final action on Wyoming's SIP had passed when the 
commenter alleges we chose to not take final action on Wyoming's SIP. 
Other commenters also noted that the EPA had exceeded our statutory 
deadline for final action on Wyoming's SIP, and commenter Basin 
Electric urged the EPA to finalize our proposed approval as 
expeditiously as practicable because our delays had caused them 
regulatory uncertainty.
    Response: These comments are not germane to the basis for the EPA's 
action. Commenters repeat arguments that have been raised in a 
challenge to the EPA's separate final action disapproving 21 other 
states' interstate transport SIP submissions for the 2015 ozone NAAQS 
(88 FR 9336; Feb. 13, 2023).\1\ There is nothing unlawful or improper 
in providing an additional opportunity for public comment when the EPA 
finds, on the basis of updated modeling information, that a SIP 
submission on which it had proposed disapproval, may be approved. This 
is consistent with the EPA's approach in numerous prior interstate 
transport SIP rulemakings.\2\ The EPA has responded to commenters' 
legal arguments against the separate disapproval action in the Wyoming 
v. EPA litigation.\3\
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    \1\ See Wyoming et. al. v U.S. EPA, No. 23-9529, Doc. 
0101108374342 (10th Cir. June 15, 2023).
    \2\ See, e.g., 84 FR 71854 (Dec. 30, 2019) and 87 FR 9545 (Feb. 
22, 2022); 85 FR 12232 (Mar. 2, 2020) and 87 FR 9477 (Feb. 22, 
2022).
    \3\ Wyoming et. al. v U.S. EPA, No. 23-9529, Doc. 010110896632 
(10th Cir. July 31, 2023).
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    Regarding comments that the EPA has exceeded our statutory 
deadlines, the EPA is subject to a consent decree in Downwinders at 
Risk v. EPA, No. 21-cv-03551 (N.D. Cal.) under which the

[[Page 87721]]

EPA has a deadline to take this final action of December 15, 2023. The 
EPA is meeting that deadline.
    Comment: Commenter Wyoming Department of Environmental Quality 
(WDEQ) requested that the EPA further expand the details of our 
analysis specific to Wyoming's plan, to be consistent with EPA action 
on other states' SIPs.
    Response: The EPA does not consider it necessary to provide further 
detail on our analysis of Wyoming's SIP. A proposed analysis of 
Wyoming's submission was provided in our May 24, 2022 proposed 
disapproval.\4\ Because under the EPA's 2016v3 modeling Wyoming is not 
projected to be linked to any out of state receptors in the 2023 
analytic year above the 1 percent of NAAQS contribution threshold, 
additional analysis is not necessary.
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    \4\ 87 FR 31495.
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    Comment: Commenter Basin Electric cited language from the EPA's 
August 14, 2023 proposed approval which stated that the EPA did ``not 
assess the data and analysis in Wyoming's submission, as EPA's updated 
modeling corroborates Wyoming's conclusion that the State will not 
significantly contribute to nonattainment or interfere with maintenance 
of the 2015 ozone NAAQS in any other state.'' The commenter asserted 
that this served as an acknowledgement that the EPA ignored the 
contents of Wyoming's SIP. The commenter stated that in doing so, the 
EPA ``is ultimately attempting to transform what is appropriately a 
state-specific assessment under the Good Neighbor Provision into a 
uniform rule that requires each state to conform to EPA's vision of how 
it believes states should address and analyze interstate ozone 
transport,'' which the commenter argues ``exceeds the authority 
delegated to EPA by Congress in the CAA.''
    Several commenters stated that CAA section 110(a)(2)(D)(i)(I) and 
EPA guidance provided the states broad discretion in developing their 
interstate transport SIPs. Commenters Idaho Power Company (IPC) and 
Mountain Cement Company (MCC) both asserted that the EPA has a more 
limited, secondary role in reviewing SIP submittals for consistency 
with the CAA, which explicitly states that the EPA ``shall approve'' a 
state's plan so long as it is consistent with the statute. Commenters 
argued that, in performing this limited oversight role, the EPA cannot 
substitute its own judgment for that of the states, and in particular, 
cannot ``force particular control measures on the states.''
    Response: As set forth in our prior proposal to disapprove 
Wyoming's submission, the EPA did not ignore its contents. However, the 
EPA need not address these issues in order to conclude that Wyoming's 
SIP submission is approvable in light of the 2016v3 modeling. This is 
consistent with numerous other approval actions the EPA has taken for 
interstate transport obligations for the 2015 ozone NAAQS, where the 
available modeling indicated that a state was not linked above a 1 
percent of the NAAQS threshold to any out of state receptor. See 88 FR 
9362 (citing approval actions). As for the remainder of the comments, 
the EPA notes that they appear to be substantially at odds with the 
statute and applicable case law. For the EPA's response to similar 
comments on the separate Disapproval action (which we are not reopening 
here), see 88 FR 9367-68.
    Comment: Several commenters stated that Wyoming's SIP had been 
approvable before the release of the 2016v3 modeling, and that the 
updated modeling only served to confirm the SIP's approvability. 
Commenters MCC and IPC restated portions of the weight of evidence 
analysis WDEQ included in their SIP submission, and asserted that this 
analysis demonstrated that Wyoming met the 110(a)(2)(D)(i)(I) 
requirements for the 2015 ozone NAAQS and was in line with EPA 
guidance.
    Response: The EPA takes no final position on whether Wyoming's SIP 
submission would have been approved in a counter-factual scenario in 
which the 2016v3 modeling was not available. The EPA's prior views on 
Wyoming's submission are stated in our now withdrawn May 24, 2022 
proposal, and given the 2016v3 modeling, there is no need to finalize 
that analysis.\5\
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    \5\ 87 FR 31495.
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    Comment: Commenter Sierra Club requested that the EPA withdraw our 
proposed approval of Wyoming's SIP and instead finalize the prior (and 
now withdrawn) proposed disapproval of the same plan. The commenter 
asserted that the EPA should have identified Weld County (Site ID 
81230009) as a violating monitor due to its 2022 design value of 72 
ppb, and because the 2016v3 modeling indicates a Wyoming contribution 
of 0.72 ppb at this receptor in 2023, the EPA should consider this as 
significant contribution to nonattainment or interference with 
maintenance of the 2015 ozone NAAQS.
    Response: The EPA disagrees that we should have identified the Weld 
County monitor as a violating-monitor maintenance-only receptor. The 
EPA considers monitoring sites with measured design values and 4th high 
maximum daily 8-hour average (MDA8) ozone that exceed the 2015 ozone 
NAAQS (i.e., greater than or equal to 71 ppb) based on certified 2021 
and 2022 data to have the greatest risk of continuing to have a problem 
attaining the standard in 2023, even when the modeling projects these 
sites will attain. The Weld County site to which the commenter refers 
has a certified 2022 4th high MDA8 of 70, which does not exceed the 
2015 ozone NAAQS.\6\ Therefore, the EPA continues to find that this 
monitor does not meet the criteria of a violating-monitor maintenance-
only receptor.
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    \6\ See ``Official 2021_2022 DVs_4th Highs.xlsx'' in the docket 
for this action.
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    Comment: One commenter urged the EPA to adopt and enforce the 
strongest possible rule to reduce air pollution in Wyoming that may 
threaten public health in Wyoming and other neighboring states.
    Response: This comment lacks sufficient specificity for the EPA to 
respond.
    Comment: Commenters WDEQ and PacifiCorp both asserted that the 
EPA's action on Wyoming's interstate transport SIP was a locally or 
regionally applicable action, rather than a nationally applicable 
action. Both commenters argued that under section 307(b)(1), the 
appropriate venue depends on whether the EPA's action is ``nationally 
applicable'' or ``locally or regionally applicable,'' stating that the 
EPA Region 8's proposed action on Wyoming's SIP is a ``purely local 
action'' and an ``indisputably regional action.''
    Response: The EPA agrees that this is a locally or regionally 
applicable action. However, under CAA section 307(b)(1), any locally or 
regionally applicable action that is based on one or more 
determinations of nationwide scope or effect made and published by the 
EPA may be challenged only in the D.C. Circuit. For the reasons 
provided in section IV. of this preamble, the Administrator finds that 
this action is based on multiple determinations of nationwide scope or 
effect within the meaning of CAA section 307(b)(1) and is hereby 
publishing that finding. While this final rule applies only to Wyoming, 
the EPA evaluated Wyoming's SIP based on a common core of nationwide 
policy judgments and technical analysis concerning the interstate 
transport of ozone, including the same determinations made in 
evaluating every other state's obligations under the

[[Page 87722]]

Good Neighbor Provision for the 2015 Ozone Standard.\7\ Ozone transport 
presents a ``collective contribution'' challenge in which many smaller 
contributors across a broad region combine to generate a downwind air 
quality problem.\8\ Given the ``interdependent nature of interstate 
pollution transport,'' the EPA finds it critically important to employ 
``a consistent set of policy judgments across all states for purposes 
of evaluating interstate transport obligations,'' \9\ including 
Wyoming.
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    \7\ 88 FR 9380.
    \8\ Id. at 9342.
    \9\ Id. at 9339, 9365.
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    Section IV. identifies the specific determinations of nationwide 
scope or effect that underlie this action.

III. Final Action

    Based on the EPA's evaluation of the impact of air emissions from 
Wyoming to downwind states using 2023 analytic year modeling as 
described in our August 14, 2023 proposed rulemaking, the EPA is 
approving Wyoming's January 3, 2019 SIP submission as meeting the 
interstate transport requirements of CAA section 110(a)(2)(D)(i)(I) for 
the 2015 ozone NAAQS.

IV. Statutory and Executive Order Reviews

    Under the CAA, 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, the EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. 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 Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     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); and
     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.
    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where the EPA or an Indian tribe 
has demonstrated that a tribe has jurisdiction. In those areas of 
Indian country, the rule does not have tribal implications and will not 
impose substantial direct costs on tribal governments or preempt tribal 
law as specified by Executive Order 13175 (65 FR 67249, November 9, 
2000).
    Executive Order 12898 (Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 7629, 
Feb. 16, 1994) directs Federal agencies to identify and address 
``disproportionately high and adverse human health or environmental 
effects'' of their actions on minority populations and low-income 
populations to the greatest extent practicable and permitted by law. 
The EPA defines environmental justice (EJ) as ``the fair treatment and 
meaningful involvement of all people regardless of race, color, 
national origin, or income with respect to the development, 
implementation, and enforcement of environmental laws, regulations, and 
policies.'' The EPA further defines the term fair treatment to mean 
that ``no group of people should bear a disproportionate burden of 
environmental harms and risks, including those resulting from the 
negative environmental consequences of industrial, governmental, and 
commercial operations or programs and policies.'' Wyoming did not 
evaluate environmental justice considerations as part of its SIP 
submission; the CAA and applicable implementing regulations neither 
prohibit nor require such an evaluation. The EPA did not perform an EJ 
analysis and did not consider EJ in this action. Consideration of EJ is 
not required as part of this action, and there is no information in the 
record inconsistent with the stated goal of E.O. 12898 of achieving 
environmental justice for people of color, low-income populations, and 
Indigenous peoples.
    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).
    Section 307(b)(1) of the CAA governs judicial review of final 
actions by the EPA. This section provides, in part, that petitions for 
review must be filed in the D.C. Circuit: (i) when the agency action 
consists of ``nationally applicable regulations promulgated, or final 
actions taken, by the Administrator,'' or (ii) when such action is 
locally or regionally applicable, if ``such action is based on a 
determination of nationwide scope or effect and if in taking such 
action the Administrator finds and publishes that such action is based 
on such a determination.'' For locally or regionally applicable final 
actions, the CAA reserves to the EPA complete discretion to decide 
whether to invoke the exception in (ii).\10\
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    \10\ In deciding whether to invoke the exception by making and 
publishing a finding that an action is based on a determination of 
nationwide scope or effect, the Administrator takes into account a 
number of policy considerations, including his judgment balancing 
the benefit of obtaining the D.C. Circuit's authoritative 
centralized review versus allowing development of the issue in other 
contexts and the best use of agency resources.
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    The Administrator is exercising the complete discretion afforded to 
him under the CAA to make and publish a finding that this final action 
(to the extent a court finds the action to be locally or regionally 
applicable) is based on a determination of ``nationwide scope or 
effect'' within the meaning of CAA section 307(b)(1). Through this 
rulemaking action (in conjunction with a series of related actions on 
other SIP submissions for the same CAA obligations), the EPA interprets 
and applies section 110(a)(2)(D)(i)(I) of the CAA for the 2015 ozone 
NAAQS based on a common core of nationwide policy judgments and 
technical analysis concerning the interstate transport of pollutants 
throughout the continental

[[Page 87723]]

U.S. The EPA relies on a single set of updated, 2016-base year 
photochemical grid modeling results for the year 2023 as the primary 
basis for its assessment of air quality conditions and contributions at 
steps 1 and 2 of the EPA's 4-step framework for assessing good neighbor 
obligations. The EPA has selected nationally uniform analytic years for 
its analysis under the 4-step framework and is applying a nationally 
uniform approach to nonattainment and maintenance receptors and a 
nationally uniform approach to contribution threshold analysis.\11\
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    \11\ In the report on the 1977 Amendments that revised section 
307(b)(1) of the CAA, Congress noted that the Administrator's 
determination that the ``nationwide scope or effect'' exception 
applies would be appropriate for any action that has a scope or 
effect beyond a single judicial circuit. See H.R. Rep. No. 95-294 at 
323, 324, reprinted in 1977 U.S.C.C.A.N. 1402-03.
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    Specifically, the Administrator finds that this action on the State 
of Wyoming's SIP submission is based on several determinations of 
nationwide scope or effect, including his determination: (1) that use 
of the same 2023 analytical year air quality modeling (2016v3) and 
monitoring data that were used to define all other states' good 
neighbor obligations for the 2015 ozone NAAQS is appropriate for 
evaluating Wyoming's contribution in this action; (2) that it is 
appropriate to use the EPA's nationwide methodology for identifying 
nonattainment and maintenance receptors, including ``violating 
monitor'' maintenance-only receptors, using the 2016v3 modeling and 
recent monitoring data; (3) that it is appropriate to use the EPA's 
nationwide methodology for calculating states' contribution levels to 
out of state receptors in calculating Wyoming's impact; and (4) that a 
conclusion that a state's impact on all out of state receptors is less 
than 1 percent of the NAAQS (using the data and methodologies described 
in items (1) through (3)) is sufficient to approve the state's good 
neighbor SIP submission for the 2015 ozone NAAQS, without further 
analysis.
    These determinations lie at the core of this final action and 
ensure consistency and equity in the treatment of all states in 
addressing the multistate problem of interstate ozone pollution under 
the good neighbor provision for the 2015 ozone NAAQS. These 
determinations are not related to the particularities of the emissions 
sources in Wyoming or any specific state.
    For these reasons, the Administrator is exercising the complete 
discretion afforded to him under the CAA and hereby makes and publishes 
a finding that this action is based on multiple determinations of 
nationwide scope or effect for purposes of CAA section 307(b)(1). 
Therefore, any petitions for review of this action must be filed in the 
D.C. Circuit Court of Appeals.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Ozone.

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

Michael S. Regan,
Administrator.

    For the reasons stated in the preamble, the Environmental 
Protection Agency amends 40 CFR part 52 as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart ZZ--Wyoming

0
2. In Sec.  52.2620, the table in paragraph (e) is amended by adding 
the entry ``(35) XXXV'' in numerical order to read as follows:


Sec.  52.2620  Identification of plan.

* * * * *
    (e) * * *

 
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                                                     State       EPA effective     Final rule
           Rule No.               Rule title    effective date       date        citation/date       Comments
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(35) XXXV....................  Interstate             1/3/2019       1/18/2024  [insert Federal  ...............
                                transport SIP                                    Register
                                for section                                      citation], 12/
                                110(a)(2)(D)(i                                   19/2024.
                                )(I) prongs 1
                                and 2 for the
                                2015 Ozone
                                NAAQS.
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[FR Doc. 2023-27754 Filed 12-18-23; 8:45 am]
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