36749
Federal
Register
/
Vol.
68,
No.
118
/
Thursday,
June
19,
2003
/
Rules
and
Regulations
3.
§
401.35
is
amended
by:
removing
the
word
``
and''
after
the
semicolon
in
paragraph
(
a);
removing
the
period
after
paragraph
(
b)
and
replacing
it
with
a
semicolon;
and
adding
two
new
paragraphs
(
c)
and
(
d)
to
read
as
follows:

§
401.35
Navigation
underway.

*
*
*
*
*
(
c)
Man
the
wheelhouse
of
the
vessel
at
all
times
by
either
the
master
or
certified
deck
officer
and
by
another
qualified
crewmember;
and
(
d)
Have
sufficient
well
rested
crewmembers
available
for
mooring
operations
and
other
essential
duties.

Issued
at
Washington,
DC
on
June
16,
2003.
Albert
S.
Jacquez,
Administrator,
Saint
Lawrence
Seaway
Development
Corporation.
[
FR
Doc.
03
 
15537
Filed
6
 
18
 
03;
8:
45
am]

BILLING
CODE
4910
 
61
 
P
ENVIRONMENTAL
PROTECTION
AGENCY
40
CFR
Part
125
[
FRL
 
7514
 
9]

RIN
2040
 
AD85
National
Pollutant
Discharge
Elimination
System
 
Amendment
of
Final
Regulations
Addressing
Cooling
Water
Intake
Structures
for
New
Facilities
AGENCY:
Environmental
Protection
Agency
(
EPA).
ACTION:
Final
rule.
SUMMARY:
Today's
final
rule
makes
minor
changes
to
EPA's
final
rule
published
December
18,
2001,
implementing
section
316(
b)
of
the
Clean
Water
Act
(
CWA)
for
new
facilities
that
use
water
withdrawn
from
rivers,
streams,
lakes,
reservoirs,
estuaries,
oceans
or
other
waters
of
the
United
States
for
cooling.
The
December
2001
rule
instituted
national
technology­
based
performance
requirements
applicable
to
the
location,
design,
construction,
and
capacity
of
cooling
water
intake
structures
at
new
facilities.
These
national
requirements
establish
the
best
technology
available
for
minimizing
adverse
environmental
impact
associated
with
the
use
of
these
structures.
EPA
is
making
several
minor
changes
to
the
December
2001
rule
because,
in
several
instances,
the
final
rule
text
does
not
reflect
the
Agency's
intent.
DATES:
This
final
rule
is
effective
on
July
21,
2003.
For
judicial
review
purposes,
this
final
rule
is
promulgated
as
of
1
p.
m.
Eastern
Standard
Time
(
EST)
on
July
3,
2003,
as
provided
in
40
CFR
23.2
and
23.7.
FOR
FURTHER
INFORMATION
CONTACT:
Martha
Segall,
USEPA
Office
of
Water
by
phone
at
(
202)
566
 
1041
or
by
e­
mail
at
rule.
316b@
epa.
gov.
SUPPLEMENTARY
INFORMATION:

I.
General
Information
A.
Regulated
Entities
This
final
rule
applies
to
new
greenfield
and
stand­
alone
facilities
that
use
cooling
water
intake
structures
to
withdraw
water
from
waters
of
the
U.
S.
and
that
have
or
require
a
National
Pollutant
Discharge
Elimination
System
(
NPDES)
permit
issued
under
section
402
of
the
CWA.
New
facilities
subject
to
this
regulation
include
those
that
have
a
design
intake
flow
of
greater
than
two
(
2)
million
gallons
per
day
(
MGD)
and
that
use
at
least
twenty­
five
(
25)
percent
of
water
withdrawn
for
cooling
purposes.
Today's
rule
does
not
apply
to
existing
facilities,
major
modifications
to
existing
facilities
that
would
be
``
new
sources''
under
40
CFR
129.29(
b)
as
that
term
is
used
in
the
effluent
guidelines
and
standards
program,
or
facilities
that
employ
cooling
water
intake
structures
in
the
offshore
oil
and
gas
extraction
point
source
category
as
defined
under
40
CFR
435.10
and
40
CFR
435.40.
The
following
table
is
not
intended
to
be
exhaustive;
rather,
it
provides
a
guide
for
readers
regarding
entities
likely
to
be
regulated
by
this
action.
The
table
lists
the
types
of
entities
that
EPA
is
now
aware
could
potentially
be
regulated
by
this
action.
Other
types
of
entities
not
listed
in
the
table
could
also
be
regulated.
To
determine
whether
your
facility
is
regulated
by
this
action,
you
should
carefully
examine
the
applicability
criteria
at
40
CFR
125.81.
If
you
have
questions
about
the
applicability
of
this
action
to
a
particular
entity,
consult
the
person
listed
in
the
preceding
FOR
FURTHER
INFORMATION
CONTACT
section.

Category
Examples
of
regulated
entities
Standard
industrial
classification
codes
North
American
Industry
Codes
(
NAIC)

Federal,
State
and
Local
Government.
Operators
of
steam
electric
generating
point
source
dischargers
that
employ
cooling
water
intake
structures.
4911
and
493
............
221111,
221112,
221113,
221119,
221121,
221122,
221111,
221112,
221113,
221119,
221121,
221122
Industry
...............................
Operators
of
industrial
point
source
dischargers
that
employ
cooling
water
intake
structures.
See
below
.................
See
below
Steam
electric
generating
...............................................................
4911
and
493
............
221111,
221112,
221113,
221119,
221121,
221122,
221111,
221112,
221113,
221119,
221121,
221122
Agricultural
production
....................................................................
0133
..........................
111991,
11193
Metal
mining
...................................................................................
1011
..........................
21221
Oil
and
gas
extraction
(
Excluding
offshore
and
coastal
subcategories
1311,
1321
................
211111,
211112
Mining
and
quarrying
of
nonmetallic
minerals
...............................
1474
..........................
212391
Food
and
kindred
products
............................................................
2046,
2061,
2062,
2063,
2075,
2085.
311221,
311311,
311312,
311313,
311222,
311225,
31214
Tobacco
products
...........................................................................
2141
..........................
312229,
31221
Textile
mill
products
........................................................................
2211
..........................
31321
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/
Vol.
68,
No.
118
/
Thursday,
June
19,
2003
/
Rules
and
Regulations
Category
Examples
of
regulated
entities
Standard
industrial
classification
codes
North
American
Industry
Codes
(
NAIC)

Lumber
and
wood
products,
except
furniture
................................
2415,
2421,
2436,
2493.
321912,
321113,
321918,
321999,
321212,
321219
Paper
and
allied
products
..............................................................
2611,
2621,
2631,
2676.
3221,
322121,
32213,
322121,
322122,
32213,
322291
Chemical
and
allied
products
.........................................................
28
(
except
2895,
2893,
2851,
and
2879).
325
(
except
325182,
32591,
32551,
32532)
Petroleum
refining
and
related
industries
......................................
2911,
2999
................
32411,
324199
Rubber
and
miscellaneous
plastics
products
.................................
3011,
3069
................
326211,
31332,
326192,
326299
Stone,
clay,
glass,
and
concrete
products
.....................................
3241
..........................
32731
Primary
metal
industries
.................................................................
3312,
3313,
3315,
3316,
3317,
3334,
3339,
3353,
3363,
3365,
3366.
324199,
331111,
331112,
331492,
331222,
332618,
331221,
22121,
331312,
331419,
331315,
331521,
331524,
331525
Fabricated
metal
products,
except
machinery
and
transportation
equipment.
3421,
3499
................
332211,
337215,
332117,
332439,
33251,
332919,
339914,
332999
Industrial
and
commercial
machinery
and
computer
equipment
...
3523,
3531
................
333111,
332323,
332212,
333922,
22651,
333923,
33312
Transportation
equipment
...............................................................
3724,
3743,
3764
......
336412,
333911,
33651,
336416
Measuring,
analyzing,
and
controlling
instruments;
photographic,
medical,
and
optical
goods;
watches
and
clocks.
3861
..........................
333315,
325992
Electric,
gas,
and
sanitary
services
................................................
4911,
4931,
4939,
4961.
221111,
221112,
221113,
221119,
221121,
221122,
22121,
22133
Educational
services
.......................................................................
8221
..........................
61131
Engineering,
accounting,
research,
management
and
related
services.
8731
..........................
54171
B.
How
Can
I
Get
Copies
of
This
Document
and
Other
Related
Information?
1.
Docket.
EPA
has
established
an
official
public
docket
for
this
action
under
Docket
ID
No.
OW
 
2002
 
0052.
The
official
public
docket
consists
of
the
documents
specifically
referenced
in
this
action,
any
public
comments
received,
and
other
information
related
to
this
action.
Although
a
part
of
the
official
docket,
the
public
docket
does
not
include
Confidential
Business
Information
(
CBI)
or
other
information
whose
disclosure
is
restricted
by
statute.
The
official
public
docket
is
the
collection
of
materials
that
is
available
for
public
viewing
at
the
Water
Docket
in
the
EPA
Docket
Center,
(
EPA/
DC)
EPA
West,
Room
B102,
1301
Constitution
Ave.,
NW,
Washington,
DC.
The
EPA
Docket
Center
Public
Reading
Room
is
open
from
8:
30
a.
m.
to
4:
30
p.
m.,
Monday
through
Friday,
excluding
legal
holidays.
The
telephone
number
for
the
Public
Reading
Room
is
(
202)
566
 
1744,
and
the
telephone
number
for
the
Water
Docket
is
(
202)
566
 
2426.
2.
Electronic
Access.
You
may
access
this
Federal
Register
document
electronically
through
the
EPA
Internet
under
the
``
Federal
Register''
listings
at
http://
www.
epa.
gov/
fedrgstr/.
An
electronic
version
of
the
public
docket
is
available
through
EPA's
electronic
public
docket
and
comment
system,
EPA
Dockets.
You
may
use
EPA
Dockets
at
http://
www.
epa.
gov/
edocket/
to
view
public
comments,
access
the
index
listing
of
the
contents
of
the
official
public
docket,
and
to
access
those
documents
in
the
public
docket
that
are
available
electronically.
Although
not
all
docket
materials
may
be
available
electronically,
you
may
still
access
any
of
the
publicly
available
docket
materials
through
the
docket
facility
identified
in
Unit
I.
B.
Once
in
the
system,
select
``
search,''
then
key
in
the
appropriate
docket
identification
number.
II.
Legal
Authority,
Purpose,
and
Scope
of
Today's
Final
Rule
On
December
18,
2001,
EPA
published
a
final
rule
implementing
section
316(
b)
of
the
Clean
Water
Act
for
new
facilities
that
use
water
withdrawn
from
rivers,
streams,
lakes,
reservoirs,
estuaries,
oceans
or
other
waters
of
the
United
States
for
cooling
purposes.
EPA
reviewed
the
final
rule
text
and
believes
that
the
regulatory
language
did
not
correctly
reflect
EPA's
intent
with
respect
to
three
issues.
On
December
26,
2002,
EPA
published
a
direct
final
rule
(
67
FR
78948)
amending
the
text
of
the
December
2001
final
rule.
EPA
published
a
companion
proposed
rule
on
the
same
day
as
the
direct
final
rule
(
67
FR
78956).
The
proposed
rule
invited
comment
on
the
substance
of
the
direct
final
rule.
The
proposed
rule
stated
that
if
EPA
received
adverse
comment
by
January
27,
2003,
the
direct
final
rule
would
not
take
effect
and
EPA
would
publish
a
notice
in
the
Federal
Register
withdrawing
the
direct
final
rule
before
the
March
26,
2003,
effective
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Vol.
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/
Thursday,
June
19,
2003
/
Rules
and
Regulations
date.
EPA
subsequently
received
adverse
comment
on
the
direct
final
rule,
and
withdrew
the
direct
final
rule
on
March
19,
2003
(
68
FR
14164).
Today's
rulemaking
constitutes
EPA's
final
action
on
the
proposed
rule.
With
this
final
action,
EPA
is
addressing
and
responding
to
the
adverse
comments
received
on
the
proposed
rule
and
the
direct
final
rule.
The
legal
authority,
background,
and
basis
for
the
December
2001
rule
are
discussed
in
the
Federal
Register
notice
of
rulemaking
(
66
FR
65256,
December
18,
2001).
EPA
often
refers
to
the
final
rule
implementing
section
316(
b)
for
new
facilities
as
the
``
Phase
I
rule.''
This
term
is
used
to
avoid
confusion
with
other
phases
of
the
section
316(
b)
rulemaking
that
mainly
cover
existing
facilities.

III.
Summary
of
the
Final
Rule
This
rule
makes
minor
changes
to
the
regulations
at
40
CFR
125.80,
National
Pollutant
Discharge
Elimination
System:
Regulations
Addressing
Cooling
Water
Intake
Structures
for
New
Facilities
published
on
December
18,
2001
(
66
FR
65256).
The
changes
will
clarify
three
technical
issues
on
velocity
monitoring,
authority
to
require
additional
design
and
construction
technologies,
and
procedures
governing
requests
for
less
stringent
alternative
requirements.

A.
Velocity
Monitoring
The
first
revision
to
the
regulatory
text
relates
to
velocity
monitoring.
In
the
final
rule
for
cooling
water
intake
structures
at
new
facilities,
EPA
required
that
velocity
be
monitored
at
cooling
water
intake
structures
at
least
once
per
quarter.
In
monitoring
velocity,
facilities
that
employ
surface
intake
screens
are
required
to
monitor
head
loss
across
the
intake
screens
at
the
``
minimum
ambient
source
water
surface
elevation.''
EPA
qualified
that
language
in
the
requirement
by
adding
a
parenthetical
phrase
that
would
allow
the
minimum
ambient
source
water
surface
elevation
to
be
determined
using
the
Director's
best
professional
judgment
based
on
available
hydrological
data.
See
40
CFR
125.87(
b).
However,
EPA
also
defined
``
minimum
ambient
source
water
surface
elevation''
at
40
CFR
125.83
to
mean
``
the
elevation
of
the
7Q10
flow
for
freshwater
streams
or
rivers;
the
conservation
pool
level
for
lakes
or
reservoirs;
or
the
mean
low
tidal
water
level
for
estuaries
or
oceans.''
EPA
further
defined
each
of
these
low
flows
in
terms
of
a
temporal
and
hydrological
basis.
See
66
FR
65339,
December
18,
2001.
EPA
understands
that
ambient
source
water
surface
elevations
fluctuate
through
time,
and
it
would
be
difficult,
if
not
infeasible,
to
coordinate
the
measurements
of
head
loss
to
the
time
when
these
minimum
ambient
source
water
surface
elevations
were
occurring
in
the
waterbody.
It
was
EPA's
intent
that
the
velocity
be
measured
at
a
time
that
is
predicted,
based
on
knowledge
of
the
hydrology
of
the
waterbody,
to
be
a
time
of
reasonable
low
flow
representative
of
the
low
surface
elevations
that
might
occur
during
the
months
that
comprise
each
quarter.
For
example,
in
tidal
waters
the
velocity
measurement
should
be
taken
at
a
low
tide.
If
tide
tables
and/
or
other
records
indicate
that
the
surface
elevations
in
a
particular
month
are
typically
lower
than
in
other
months,
the
facility
should
measure
intake
velocity
at
one
of
the
lowest
predicted
tides
during
that
particular
month.
In
reservoirs
where
water
levels
are
drawn
down
at
certain
parts
of
the
year,
the
facility
should
measure
intake
velocity
immediately
after
a
drawdown
or
release
has
occurred.
In
freshwater
rivers
and
streams,
the
facility
should
measure
intake
velocity
during
the
month
that
typically
has
the
lowest
flows.
Such
monitoring
should
occur
at
a
time
when
flows
are
not
temporarily
elevated
due
to
recent
storm
events.
The
Director
should
determine
and
specify
the
appropriate
time
of
measurement
in
the
facility's
NPDES
permit
based
on
available
existing
hydrological
information
and
information
submitted
by
the
owner
of
the
facility
with
its
permit
application.
Accordingly,
to
conform
the
regulatory
text
to
EPA's
intent,
EPA
believes
that
the
regulatory
language
at
40
CFR
125.87
is
sufficient
and
that
the
definition
of
``
minimum
ambient
source
water
surface
elevation''
is
no
longer
needed.
Therefore,
today's
action
will
only
delete
the
definition
of
``
minimum
ambient
source
water
surface
elevation''
at
40
CFR
125.83.

B.
Director's
Authority
to
Require
Additional
Design
and
Construction
Technologies
or
Operational
Measures
in
Track
I
The
second
set
of
revisions
to
the
regulatory
text
relates
to
the
Director's
authority
to
require
additional
design
and
construction
technologies
or
operational
measures
in
Track
I.
There
are
five
provisions
at
issue:
40
CFR
125.84(
b)(
4)(
ii),
(
b)(
4)(
iii),
(
b)(
5)(
ii),
(
c)(
3)(
ii),
and
(
c)(
3)(
iii).
Four
of
these
provisions
specify
circumstances
where
design
and
construction
technologies
or
operational
measures
for
minimizing
impingement
mortality
of
fish
and
shellfish
are
required.
At
40
CFR
125.84(
b)(
4)(
ii)
and
(
c)(
3)(
ii),
facilities
are
required
to
select
and
implement
design
and
construction
technologies
or
operational
measures
for
minimizing
impingement
mortality
of
fish
and
shellfish
if
``
There
are
migratory
and/
or
sport
or
commercial
species
of
impingement
concern
to
the
Director
or
any
fishery
management
agency(
ies),
which
pass
through
the
hydraulic
zone
of
influence
of
the
cooling
water
intake
structure.''
The
language
should
have
specified
that
additional
design
and
construction
technologies
or
operational
measures
are
required
if,
``
Based
on
information
submitted
by
any
fishery
management
agency(
ies)
or
other
relevant
information,
there
are
migratory
and/
or
sport
or
commercial
species
of
impingement
concern
to
the
Director
that
pass
through
the
hydraulic
zone
of
influence
of
the
cooling
water
intake
structure.''
Paragraphs
(
b)(
4)(
iii)
and
(
c)(
3)(
iii)
require
a
facility
to
select
and
implement
design
and
construction
technologies
or
operational
measures
for
minimizing
impingement
mortality
if
``
It
is
determined
by
the
Director
or
any
fishery
management
agency(
ies)
*
*
*.''
The
language
should
have
specified
that
those
technologies
are
required
if,
``
It
is
determined
by
the
Director,
based
on
information
submitted
by
any
fishery
management
agency(
ies)
or
other
relevant
information,
that
*
*
*.''
The
fifth
provision,
paragraph
(
b)(
5)(
ii),
addresses
circumstances
where
design
and
construction
technologies
or
operational
measures
are
required
for
minimizing
entrainment
of
entrainable
life
stages
of
fish
and
shellfish.
The
language
used
in
this
provision
was
similar
to
that
in
paragraphs
(
b)(
4)(
ii),
(
b)(
4)(
iii),
(
c)(
3)(
ii),
and
(
c)(
3)(
iii)
and
therefore
required
similar
corrections.
All
of
these
revisions
are
necessary
because
the
decision
of
what
to
require
under
section
316(
b)
of
the
CWA
belongs
to
the
Director.
Although
EPA
did
not
intend
to
delegate
the
decisionmaking
to
another
agency,
the
Director
may
obtain
information
from
another
agency
to
make
a
decision.
Therefore,
today's
action
amends
the
requirements
at
40
CFR
125.84(
b)(
4)(
ii),
(
b)(
4)(
iii),
(
b)(
5)(
ii),
(
c)(
3)(
ii),
and
(
c)(
3)(
iii)
to
reflect
the
intent
that
the
information
of
another
agency
informs
the
decision
of
the
Director.

C.
Deletion
of
Inappropriate
Cross
Reference
in
the
Alternative
Requirements
Section
The
third
issue
relates
to
drafting
errors
in
the
alternative
requirements
section
of
the
rule.
The
regulation
at
40
CFR
125.85
in
paragraphs
(
a)(
2)
and
(
3)
currently
refers
to
local
water
resources
``
not
addressed
under
§
125.84(
d)(
1)(
i)''
intending
to
refer
to
local
water
resource
issues
other
than
impingement
or
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Rules
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Regulations
entrainment.
Cross­
referencing
this
other
section
of
the
regulations
is
not
technically
correct,
because
subsection
(
d)
of
§
125.84
is
part
of
Track
II
while
the
alternative
requirements
provision
applies
to
either
Track
I
or
Track
II.
Therefore,
this
action
deletes
the
reference
to
40
CFR
125.84(
d)(
1)(
i)
and
substitutes
language
referencing
``
significant
adverse
impacts
on
local
water
resources
other
than
impingement
or
entrainment.''
Similarly,
to
eliminate
any
uncertainty
regarding
applicability
of
the
alternative
requirements
provision
at
40
CFR
125.85
to
the
Track
II
performance
requirements
at
40
CFR
125.84(
d),
this
action
deletes
40
CFR
125.84(
d)(
1)(
ii)
because
it
is
unnecessary
and
confusing.
In
addition,
the
paragraph
40
CFR
125.84(
d)(
1)
and
the
subparagraph
(
d)(
1)(
i)
have
been
combined
with
some
modifications
because
a
separate
subparagraph
is
no
longer
needed.

IV.
Response
to
Comments
EPA
received
one
set
of
comments
on
the
direct
final
and
companion
proposed
rules
published
on
December
26,
2002,
(
67
FR
78948
and
78956)
from
Riverkeeper,
Inc.
on
behalf
of
16
environmental
organizations.
This
group
of
environmental
organizations
are
petitioners
in
a
suit
filed
against
EPA
in
the
U.
S.
Court
of
Appeals
in
the
Second
Circuit
(
Case
No.
02
 
4005)
challenging
EPA's
final
Phase
I
rule
for
new
facilities.
Riverkeeper,
et
al.
submitted
as
their
comments
the
brief
that
they
filed
in
their
challenge
to
the
December
18,
2001,
Phase
I
final
regulations
(
Brief
for
the
Environmental
Petitioners,
December
4,
2002).
Riverkeeper
et
al.'
s
comments
did
not
specifically
object
to
the
technical
changes
in
the
direct
final
rule;
rather,
they
objected
to
the
underlying
provisions
in
the
final
Phase
I
rule
that
are
related
to
the
technical
corrections.
Riverkeeper
et
al.
filed
their
brief
to
preserve
their
ability
to
have
the
objectionable
provisions
remanded
to
EPA
should
they
succeed
in
their
challenge
of
the
Phase
I
rule.
EPA
also
understands
that
Riverkeeper
et
al.
intend
to
consolidate
any
petition
for
review
of
this
rule
with
the
pending
litigation
in
the
Second
Circuit.
EPA
believes
it
responded
to
Riverkeeper
et
al.'
s
comments
articulated
in
their
brief
in
EPA's
brief
filed
in
the
Second
Circuit
on
April
4,
2003,
and
in
the
record
for
the
Phase
I
rule.
Thus,
EPA
includes
in
the
record
for
this
rule
the
brief
it
filed
in
the
Second
Circuit
in
the
Phase
I
litigation,
all
other
briefs
filed
in
that
litigation,
and
the
entire
public
record
on
the
National
Pollutant
Discharge
Elimination
System:
Regulations
Addressing
Cooling
Water
Intake
Structures
for
New
Facilities,
Final
Rule
(
Docket
ID
W
 
00
 
03).

V.
Statutory
and
Executive
Orders
Reviews
A.
Executive
Order
12866:
Regulatory
Planning
and
Review
Under
Executive
Order
12866,
[
58
FR
51735,
October
4,
1993]
the
Agency
must
determine
whether
the
regulatory
action
is
``
significant''
and
therefore
subject
to
OMB
review
and
the
requirements
of
the
Executive
Order.
The
Order
defines
``
significant
regulatory
action''
as
one
that
is
likely
to
result
in
a
rule
that
may:
(
1)
Have
an
annual
effect
on
the
economy
of
$
100
million
or
more
or
adversely
affect
in
a
material
way
the
economy,
a
sector
or
the
economy,
productivity,
competition,
jobs,
the
environment,
public
health
or
safety,
or
State,
local,
or
Tribal
governments
or
communities;
(
2)
Create
a
serious
inconsistency
or
otherwise
interfere
with
an
action
taken
or
planned
by
another
agency;
(
3)
Materially
alter
the
budgetary
impact
of
entitlements,
grants,
user
fees,
or
loan
programs
or
the
rights
and
obligations
of
recipients
thereof;
or
(
4)
Raise
novel
legal
or
policy
issues
arising
out
of
legal
mandates,
the
President's
priorities,
or
the
principles
set
forth
in
the
Executive
Order.
It
has
been
determined
that
this
rule
is
not
a
``
significant
regulatory
action''
under
the
terms
of
Executive
Order
12866
and
therefore
is
not
subject
to
OMB
review.

B.
Paperwork
Reduction
Act
This
action
does
not
impose
an
information
collection
burden
under
the
provisions
of
the
Paperwork
Reduction
Act,
44
U.
S.
C.
3501
et
seq.
This
rule
merely
makes
three
minor
technical
revisions
to
the
December
2001
Phase
I
final
regulations
for
cooling
water
intake
structures.
These
minor
changes
will
clarify
the
Agency's
intent
on
velocity
monitoring,
authority
to
require
additional
design
and
construction
technologies,
and
procedures
for
seeking
less
stringent
alternative
requirements.
It
would
affect
the
same
facilities
as
the
December
2001
rule,
impose
no
additional
costs
or
result
in
additional
benefits
beyond
those
already
projected,
and
would
not
reduce
the
level
of
environmental
protection
projected.
Burden
means
the
total
time,
effort,
or
financial
resources
expended
by
persons
to
generate,
maintain,
retain,
or
disclose
or
provide
information
to
or
for
a
Federal
agency.
This
includes
the
time
needed
to
review
instructions;
develop,
acquire,
install,
and
utilize
technology
and
systems
for
the
purposes
of
collecting,
validating,
and
verifying
information,
processing
and
maintaining
information,
and
disclosing
and
providing
information;
adjust
the
existing
ways
to
comply
with
any
previously
applicable
instructions
and
requirements;
train
personnel
to
be
able
to
respond
to
a
collection
of
information;
search
data
sources;
complete
and
review
the
collection
of
information;
and
transmit
or
otherwise
disclose
the
information.
An
Agency
may
not
conduct
or
sponsor,
and
a
person
is
not
required
to
respond
to
a
collection
of
information
unless
it
displays
a
currently
valid
OMB
control
number.
The
OMB
control
numbers
for
EPA's
regulations
are
listed
in
40
CFR
part
9
and
48
CFR
chapter
15.

C.
Regulatory
Flexibility
Act
(
RFA)
The
Regulatory
Flexibility
Act
generally
requires
an
agency
to
prepare
a
regulatory
flexibility
analysis
of
any
rule
subject
to
notice
and
comment
rulemaking
requirements
under
the
Administrative
Procedure
Act
or
any
other
statute
unless
the
agency
certifies
that
the
rule
will
not
have
a
significant
economic
impact
on
a
substantial
number
of
small
entities.
Small
entities
include
small
businesses,
small
organizations,
and
small
governmental
jurisdictions.
For
purposes
of
assessing
the
impacts
of
today's
rule
on
small
entities,
small
entity
is
defined
as:
(
1)
A
small
business
based
on
the
Small
Business
Administration's
size
standards;
(
2)
a
small
governmental
jurisdiction
that
is
a
government
of
a
city,
county,
town,
school
district
or
special
district
with
a
population
of
less
than
50,000;
and
(
3)
a
small
organization
that
is
any
not­
forprofit
enterprise
which
is
independently
owned
and
operated
and
is
not
dominant
in
its
field.
After
considering
the
economic
impact
of
today's
final
rule
on
small
entities,
I
certify
that
this
action
will
not
have
a
significant
economic
impact
on
a
substantial
number
of
small
entities.
This
final
rule
does
not
substantively
change
the
December
18,
2001,
final
rule
for
new
facilities
(
66
FR
65256),
nor
does
it
impose
a
significant
economic
impact
on
a
substantial
number
of
small
entities.
This
rule
merely
makes
three
minor
technical
revisions
to
the
December
2001
rule.
These
minor
changes
will
clarify
the
Agency's
intent
on
velocity
monitoring,
authority
to
require
additional
design
and
construction
technologies,
and
procedures
for
seeking
less
stringent
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alternative
requirements.
It
would
affect
the
same
facilities
as
the
December
2001
rule,
impose
no
additional
costs
or
result
in
additional
benefits
beyond
those
already
projected,
and
would
not
reduce
the
level
of
environmental
protection
projected.

D.
Unfunded
Mandates
Reform
Act
Title
II
of
the
Unfunded
Mandates
Reform
Act
of
1995
(
UMRA),
Public
Law
104
 
4,
establishes
requirements
for
Federal
agencies
to
assess
the
effects
of
their
regulatory
actions
on
State,
local,
and
Tribal
governments
and
the
private
sector.
Under
section
202
of
the
UMRA,
EPA
generally
must
prepare
a
written
statement,
including
a
cost­
benefit
analysis,
for
proposed
and
final
rules
with
``
Federal
mandates''
that
may
result
in
expenditures
to
State,
local,
and
Tribal
governments,
in
the
aggregate,
or
to
the
private
sector,
of
$
100
million
or
more
in
any
one
year.
Before
promulgating
an
EPA
rule
for
which
a
written
statement
is
needed,
section
205
of
the
UMRA
generally
requires
EPA
to
identify
and
consider
a
reasonable
number
of
regulatory
alternatives
and
adopt
the
least
costly,
most
cost­
effective
or
least
burdensome
alternative
that
achieves
the
objectives
of
the
rule.
The
provisions
of
section
205
do
not
apply
when
they
are
inconsistent
with
applicable
law.
Moreover,
section
205
allows
EPA
to
adopt
an
alternative
other
than
the
least
costly,
most
cost­
effective
or
least
burdensome
alternative
if
the
Administrator
publishes
with
the
final
rule
an
explanation
why
that
alternative
was
not
adopted.
Before
EPA
establishes
any
regulatory
requirements
that
may
significantly
or
uniquely
affect
small
governments,
including
Tribal
governments,
it
must
have
developed
under
section
203
of
the
UMRA
a
small
government
agency
plan.
The
plan
must
provide
for
notifying
potentially
affected
small
governments,
enabling
officials
of
affected
small
governments
to
have
meaningful
and
timely
input
in
the
development
of
EPA
regulatory
proposals
with
significant
Federal
intergovernmental
mandates,
and
informing,
educating,
and
advising
small
governments
on
compliance
with
the
regulatory
requirements.
EPA
has
determined
that
this
rule
does
not
contain
a
Federal
mandate
that
may
result
in
expenditures
of
$
100
million
or
more
for
State,
local,
and
Tribal
governments,
in
the
aggregate,
or
the
private
sector,
in
any
one
year.
This
rule
merely
makes
three
minor
technical
revisions
to
the
December
2001
Phase
I
final
regulations
for
cooling
water
intake
structures.
These
minor
changes
will
clarify
the
Agency's
intent
on
velocity
monitoring,
authority
to
require
additional
design
and
construction
technologies,
and
procedures
for
seeking
less
stringent
alternative
requirements.
It
would
affect
the
same
facilities
as
the
December
2001
rule,
would
have
no
additional
costs
or
benefits
beyond
those
already
projected,
and
would
not
reduce
the
level
of
environmental
protection
projected.
Thus,
today's
rule
is
not
subject
to
the
requirements
of
section
202
and
205
of
the
UMRA.
For
the
same
reasons,
EPA
has
also
determined
that
this
rule
contains
no
regulatory
requirements
that
might
significantly
or
uniquely
affect
small
governments.
Thus,
today's
rule
is
not
subject
to
the
requirements
of
section
203
of
the
UMRA.

E.
Executive
Order
13132:
Federalism
Executive
Order
13132,
entitled
``
Federalism''
(
64
FR
43255,
August
10,
1999),
requires
EPA
to
develop
an
accountable
process
to
ensure
``
meaningful
and
timely
input
by
State
and
local
officials
in
the
development
of
regulatory
policies
that
have
federalism
implications.''
``
Policies
that
have
federalism
implications''
is
defined
in
the
Executive
Order
to
include
regulations
that
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.''
This
final
rule
does
not
have
federalism
implications.
It
will
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.
This
rule
merely
makes
three
minor
technical
revisions
to
the
December
2001
Phase
I
final
regulations
for
new
facilities.
These
minor
changes
will
clarify
the
Agency's
intent
on
velocity
monitoring,
authority
to
require
additional
design
and
construction
technologies,
and
procedures
for
seeking
less
stringent
alternative
requirements.
It
would
affect
the
same
facilities
as
the
December
2001
rule,
impose
no
additional
costs
or
result
in
additional
benefits
beyond
those
already
projected,
and
would
not
reduce
the
level
of
environmental
protection
projected.
Thus
Executive
Order
13132
does
not
apply
to
this
rule.

F.
Executive
Order
13175:
Consultation
and
Coordination
With
Indian
Tribal
Governments
Executive
Order
13175,
entitled
``
Consultation
and
Coordination
with
Indian
Tribal
Governments''
(
65
FR
67249,
November
9,
2000),
requires
EPA
to
develop
an
accountable
process
to
ensure
``
meaningful
and
timely
input
by
Tribal
officials
in
the
development
of
regulatory
policies
that
have
Tribal
implications.''
``
Policies
that
have
Tribal
implications''
is
defined
in
the
Executive
Order
to
include
regulations
that
have
``
substantial
direct
effects
on
one
or
more
Indian
Tribes,
on
the
relationship
between
the
Federal
government
and
the
Indian
Tribes,
or
on
the
distribution
of
power
and
responsibilities
between
the
Federal
government
and
Indian
Tribes.''
This
final
rule
does
not
have
Tribal
implications.
It
will
not
have
substantial
direct
effects
on
Tribal
governments,
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
in
Executive
Order
13175.
This
rule
merely
makes
three
minor
technical
revisions
to
the
final
regulations
for
cooling
water
intake
structures.
These
minor
changes
will
clarify
the
Agency's
intent
on
velocity
monitoring,
authority
to
require
additional
design
and
construction
technologies,
and
procedures
for
seeking
less
stringent
alternative
requirements.
It
would
affect
the
same
facilities
as
the
December
2001
rule,
impose
no
additional
costs
or
result
in
additional
benefits
beyond
those
already
projected,
and
would
not
reduce
the
level
of
environmental
protection
projected.
This
rule
will
not
affect
Tribes
in
any
way
in
the
foreseeable
future.
Thus,
Executive
Order
13175
does
not
apply
to
this
rule.

G.
Executive
Order
13045:
Protection
of
Children
From
Environmental
Health
Risks
and
Safety
Risks
Executive
Order
13045
(
62
FR
19885,
April
23,
1997)
applies
to
any
rule
that:
(
1)
Is
determined
to
be
``
economically
significant''
as
defined
under
Executive
Order
12866,
and
(
2)
concerns
an
environmental
health
or
safety
risk
that
EPA
has
reason
to
believe
might
have
a
disproportionate
effect
on
children.
If
the
regulatory
action
meets
both
criteria,
the
Agency
must
evaluate
the
environmental
health
or
safety
effects
of
the
planned
rule
on
children,
and
explain
why
the
planned
regulation
is
preferable
to
other
potentially
effective
and
reasonably
feasible
alternatives
considered
by
the
Agency.
This
final
rule
is
not
economically
significant
as
defined
under
Executive
Order
12866
and
does
not
concern
an
environmental
health
or
safety
risk
that
EPA
has
reason
to
believe
may
have
a
disproportionate
effect
on
children.
This
rule
merely
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118
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19,
2003
/
Rules
and
Regulations
makes
three
minor
technical
revisions
to
the
final
regulations
for
cooling
water
intake
structures.
These
minor
changes
will
clarify
the
Agency's
intent
on
velocity
monitoring,
authority
to
require
additional
design
and
construction
technologies,
and
procedures
for
seeking
less
stringent
alternative
requirements.
It
would
affect
the
same
facilities
as
the
December
2001
rule,
impose
no
additional
costs
or
result
in
the
additional
benefits
beyond
those
already
projected,
and
would
not
reduce
the
level
of
environmental
protection
projected.
Therefore,
it
is
not
subject
to
Executive
Order
13045.

H.
Executive
Order
13211
(
Energy
Effects)
This
final
rule
is
not
subject
to
Executive
Order
13211,
``
Actions
Concerning
Regulations
That
Significantly
Affect
Energy
Supply,
Distribution,
or
Use''
(
66
FR
28355,
May
22,
2001)
because
it
is
not
a
significant
regulatory
action
under
Executive
Order
12866.

I.
National
Technology
Transfer
and
Advancement
Act
Section
12(
d)
of
the
National
Technology
Transfer
and
Advancement
Act
(``
NTTAA'')
of
1995
(
Public
Law
104
 
113,
Section12(
d),
15
U.
S.
C.
272
note)
directs
EPA
to
use
voluntary
consensus
standards
in
its
regulatory
activities
unless
to
do
so
would
be
inconsistent
with
applicable
law
or
otherwise
impractical.
Voluntary
consensus
standards
are
technical
standards
(
e.
g.,
materials
specifications,
test
methods,
sampling
procedures,
and
business
practices)
that
are
developed
or
adopted
by
voluntary
consensus
standards
bodies.
The
NTTAA
directs
EPA
to
provide
Congress,
through
OMB,
explanations
when
the
Agency
decides
not
to
use
available
and
applicable
voluntary
consensus
standards.
This
final
rule
does
not
involve
technical
standards.
Therefore,
EPA
did
not
consider
the
use
of
any
voluntary
consensus
standards.

J.
Executive
Order
12898:
Federal
Actions
To
Address
Environmental
Justice
in
Minority
Populations
and
Low­
Income
Populations
Executive
Order
12898
requires
that,
to
the
greatest
extent
practicable
and
permitted
by
law,
each
Federal
agency
must
make
achieving
environmental
justice
part
of
its
mission.
Executive
Order
12898
provides
that
each
Federal
agency
must
conduct
its
programs,
policies,
and
activities
that
substantially
affect
human
health
or
the
environment
in
a
manner
that
ensures
that
such
programs,
policies,
and
activities
do
not
have
the
effect
of
excluding
persons
(
including
populations)
from
participation
in,
denying
persons
(
including
populations)
the
benefits
of,
or
subjecting
persons
(
including
populations)
to
discrimination
under
such
programs,
policies,
and
activities
because
of
their
race,
color,
or
national
origin.
EPA
does
not
expect
that
this
final
rule
would
have
an
exclusionary
effect,
deny
persons
the
benefit
of
the
NPDES
program
or
subject
persons
to
discrimination
because
of
their
race,
color,
or
national
origin.
This
rule
merely
makes
three
minor
technical
revisions
to
the
final
regulations
for
cooling
water
intake
structures.
These
minor
changes
will
clarify
the
Agency's
intent
on
velocity
monitoring,
authority
to
require
additional
design
and
construction
technologies,
and
procedures
for
seeking
less
stringent
alternative
requirements.
It
would
affect
the
same
facilities
as
the
December
2001
rule,
would
have
no
additional
costs
or
benefits
beyond
those
already
projected,
and
would
not
reduce
the
level
of
environmental
protection
projected.

K.
Executive
Order
13158:
Marine
Protected
Areas
Executive
Order
13158
(
65
FR
34909,
May
31,
2000)
requires
EPA
to
``
expeditiously
propose
new
sciencebased
regulations,
as
necessary,
to
ensure
appropriate
levels
of
protection
for
the
marine
environment.''
EPA
may
take
action
to
enhance
or
expand
protection
of
existing
marine
protected
areas
and
to
establish
or
recommend,
as
appropriate,
new
marine
protected
areas.
The
purpose
of
the
Executive
Order
is
to
protect
the
significant
natural
and
cultural
resources
within
the
marine
environment,
which
means
``'
those
areas
of
coastal
and
ocean
waters,
the
Great
Lakes
and
their
connecting
waters,
and
submerged
lands
thereunder,
over
which
the
United
States
exercises
jurisdiction,
consistent
with
international
law.''
Today's
final
rule
will
not
enhance
or
expand
protection
nor
reduce
the
level
of
environmental
protection
of
existing
marine
protected
areas.
This
rule
merely
makes
three
minor
technical
revisions
to
the
December
2001
Phase
I
final
regulations
for
cooling
water
intake
structures.
These
minor
changes
will
clarify
the
Agency's
intent
on
velocity
monitoring,
authority
to
require
additional
design
and
construction
technologies,
and
procedures
for
seeking
less
stringent
alternative
requirements.
It
would
affect
the
same
facilities
as
the
December
2001
rule,
impose
no
additional
costs
or
result
in
additional
benefits
beyond
those
already
projected,
and
would
not
reduce
the
level
of
environmental
protection
projected.

L.
Plain
Language
Directive
Executive
Order
12866
encourages
agencies
to
write
all
rules
in
plain
language.
EPA
has
written
this
final
rule
in
plain
language
to
make
this
rule
and
the
final
rule
at
66
FR
65256,
December
18,
2001
easier
to
understand.

M.
Congressional
Review
Act
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).
This
rule
will
be
effective
July
21,
2003.

List
of
Subjects
in
40
CFR
Part
125
Environmental
protection,
Cooling
water
intake
structures,
Reporting
and
recordkeeping
requirements,
Waste
treatment
and
disposal,
Water
pollution
control.

Dated:
June
13,
2003.
Christine
Todd
Whitman,
Administrator.


For
the
reasons
set
forth
in
the
preamble,
chapter
I
of
title
40
of
the
Code
of
Federal
Regulations
is
amended
as
follows:

PART
125
 
CRITERIA
AND
STANDARDS
FOR
THE
NATIONAL
POLLUTANT
DISCHARGE
ELIMINATION
SYSTEM

1.
The
authority
citation
for
part
125
continues
to
read
as
follows:

Authority:
The
Clean
Water
Act,
33
U.
S.
C.
1251
et
seq.,
unless
otherwise
noted.

§
125.83
[
Amended]


2.
Section
125.83
is
amended
by
removing
the
definition
for
``
Minimum
ambient
source
water
surface
elevation.''


3.
Section
125.84
is
amended
by
revising
paragraphs
(
b)(
4)(
ii),
(
b)(
4)(
iii),
(
b)(
5)(
ii),
(
c)(
3)(
ii),
(
c)(
3)(
iii),
and
(
d)(
1)
to
read
as
follows:

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19,
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/
Rules
and
Regulations
§
125.84
As
an
owner
or
operator
of
a
new
facility,
what
must
I
do
to
comply
with
this
subpart?

*
*
*
*
*
(
b)
*
*
*
(
4)
*
*
*
(
ii)
Based
on
information
submitted
by
any
fishery
management
agency(
ies)
or
other
relevant
information,
there
are
migratory
and/
or
sport
or
commercial
species
of
impingement
concern
to
the
Director
that
pass
through
the
hydraulic
zone
of
influence
of
the
cooling
water
intake
structure;
or
(
iii)
It
is
determined
by
the
Director,
based
on
information
submitted
by
any
fishery
management
agency(
ies)
or
other
relevant
information,
that
the
proposed
facility,
after
meeting
the
technologybased
performance
requirements
in
paragraphs
(
b)(
1),
(
2),
and
(
3)
of
this
section,
would
still
contribute
unacceptable
stress
to
the
protected
species,
critical
habitat
of
those
species,
or
species
of
concern;
(
5)
*
*
*
(
ii)
Based
on
information
submitted
by
any
fishery
management
agency(
ies)
or
other
relevant
information,
there
are
or
would
be
undesirable
cumulative
stressors
affecting
entrainable
life
stages
of
species
of
concern
to
the
Director
and
the
Director
determines
that
the
proposed
facility,
after
meeting
the
technology­
based
performance
requirements
in
paragraphs
(
b)(
1),
(
2),
and
(
3)
of
this
section,
would
still
contribute
unacceptable
stress
to
the
protected
species
,
critical
habitat
of
those
species,
or
these
species
of
concern;
*
*
*
*
*
(
c)
*
*
*
(
3)
*
*
*
(
ii)
Based
on
information
submitted
by
any
fishery
management
agency(
ies)
or
other
relevant
information,
there
are
migratory
and/
or
sport
or
commercial
species
of
impingement
concern
to
the
Director
that
pass
through
the
hydraulic
zone
of
influence
of
the
cooling
water
intake
structure;
or
(
iii)
It
is
determined
by
the
Director,
based
on
information
submitted
by
any
fishery
management
agency(
ies)
or
other
relevant
information,
that
the
proposed
facility,
after
meeting
the
technologybased
performance
requirements
in
paragraphs
(
c)(
1)
and
(
2)
of
this
section,
would
still
contribute
unacceptable
stress
to
the
protected
species,
critical
habitat
of
those
species,
or
species
of
concern;
*
*
*
*
*
(
d)
*
*
*
(
1)
You
must
demonstrate
to
the
Director
that
the
technologies
employed
will
reduce
the
level
of
adverse
environmental
impact
from
your
cooling
water
intake
structures
to
a
comparable
level
to
that
which
you
would
achieve
were
you
to
implement
the
requirements
of
paragraphs
(
b)(
1)
and
(
2)
of
this
section.
This
demonstration
must
include
a
showing
that
the
impacts
to
fish
and
shellfish,
including
important
forage
and
predator
species,
within
the
watershed
will
be
comparable
to
those
which
would
result
if
you
were
to
implement
the
requirements
of
paragraphs
(
b)(
1)
and
(
2)
of
this
section.
This
showing
may
include
consideration
of
impacts
other
than
impingement
mortality
and
entrainment,
including
measures
that
will
result
in
increases
in
fish
and
shellfish,
but
it
must
demonstrate
comparable
performance
for
species
that
the
Director
identifies
as
species
of
concern.
In
identifying
such
species,
the
Director
may
consider
information
provided
by
any
fishery
management
agency(
ies)
along
with
data
and
information
from
other
sources.
*
*
*
*
*


4.
Section
125.85
is
amended
by
revising
paragraphs
(
a)(
2)
and
(
3)
to
read
as
follows:

§
125.85
May
alternative
requirements
be
authorized?

(
a)
*
*
*
(
2)
The
Director
determines
that
data
specific
to
the
facility
indicate
that
compliance
with
the
requirement
at
issue
would
result
in
compliance
costs
wholly
out
of
proportion
to
the
costs
EPA
considered
in
establishing
the
requirement
at
issue
or
would
result
in
significant
adverse
impacts
on
local
air
quality,
significant
adverse
impacts
on
local
water
resources
other
than
impingement
or
entrainment,
or
significant
adverse
impacts
on
local
energy
markets;
(
3)
The
alternative
requirement
requested
is
no
less
stringent
than
justified
by
the
wholly
out
of
proportion
cost
or
the
significant
adverse
impacts
on
local
air
quality,
significant
adverse
impacts
on
local
water
resources
other
than
impingement
or
entrainment,
or
significant
adverse
impacts
on
local
energy
markets;
and
*
*
*
*
*

[
FR
Doc.
03
 
15518
Filed
6
 
18
 
03;
8:
45
am]

BILLING
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6560
 
50
 
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18,
2003
Jkt
200001
PO
00000
Frm
00013
Fmt
4700
Sfmt
4700
E:\
FR\
FM\
19JNR1.
SGM
19JNR1
