Proposed Rule2024-11649
Air Plan Approval; Nebraska; Revisions to Title 129 of the Nebraska Administrative Code; Nebraska Air Quality Regulations
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
June 3, 2024
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is proposing to approve revisions to the Nebraska State Implementation Plan (SIP), Operating Permits Program, and 112(l) Plan. The revisions were submitted by the State of Nebraska on December 2, 2022. This proposed action will amend the SIP to revise Nebraska air quality regulations and will add specific definitions from a Nebraska statute. These proposed changes include new and renumbered rules, the consolidation of 43 chapters into 16 chapters, replacement of duplicative language with references to state statute and federal regulation, revisions to reflect changes to state and federal law, and other changes to state regulations. The EPA's proposed approval of this rule revision is in accordance with the requirements of the Clean Air Act (CAA).
Full Text
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<title>Federal Register, Volume 89 Issue 107 (Monday, June 3, 2024)</title>
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[Federal Register Volume 89, Number 107 (Monday, June 3, 2024)]
[Proposed Rules]
[Pages 47504-47508]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-11649]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 70
[EPA-R07-OAR-2024-0025; FRL-11676-01-R7]
Air Plan Approval; Nebraska; Revisions to Title 129 of the
Nebraska Administrative Code; Nebraska Air Quality Regulations
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve revisions to the Nebraska State Implementation Plan (SIP),
Operating Permits Program, and 112(l) Plan. The revisions were
submitted by the State of Nebraska on December 2, 2022. This proposed
action will amend the SIP to revise Nebraska air quality regulations
and will add specific definitions from a Nebraska statute. These
proposed changes include new and renumbered rules, the consolidation of
43 chapters into 16 chapters, replacement of duplicative language with
references to state statute and federal regulation, revisions to
reflect changes to state and federal law, and other changes to state
regulations. The EPA's proposed approval of this rule revision is in
accordance with the requirements of the Clean Air Act (CAA).
DATES: Comments must be received on or before July 3, 2024.
ADDRESSES: You may send comments, identified by Docket ID No. EPA-R07-
OAR-2024-0025 to <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the online
instructions for submitting comments.
Instructions: All submissions received must include the Docket ID
No. for this rulemaking. Comments received will be posted without
change to <a href="https://www.regulations.gov">https://www.regulations.gov</a>, including any personal
information provided. For detailed instructions on sending comments and
additional information on the rulemaking process, see the ``Written
Comments'' heading of the SUPPLEMENTARY INFORMATION section of this
document.
FOR FURTHER INFORMATION CONTACT: William Stone, Environmental
Protection Agency, Region 7 Office, Air Permitting and Planning Branch,
11201 Renner Boulevard, Lenexa, Kansas 66219; telephone number: (913)
551-7714; email address: <a href="/cdn-cgi/l/email-protection#57242338393279203e3b3b3e363a1732273679303821"><span class="__cf_email__" data-cfemail="92e1e6fdfcf7bce5fbfefefbf3ffd2f7e2f3bcf5fde4">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and
``our'' refer to the EPA.
Table of Contents
I. Written Comments
II. What is being addressed in this document?
III. Have the requirements for approval of a SIP revision been met?
IV. What action is the EPA taking?
V. Incorporation by Reference
VI. Statutory and Executive Order Reviews
I. Written Comments
Submit your comments, identified by Docket ID No. EPA-R07-OAR-2024-
0025, at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Once submitted, comments cannot
be edited or removed from <a href="http://Regulations.gov">Regulations.gov</a>. The EPA may publish any
comment received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. The EPA
will generally not consider comments or comment contents located
outside of the primary submission (i.e. on the web, cloud, or other
file sharing system). For additional submission methods, the full EPA
public comment policy, information about CBI or multimedia submissions,
and general guidance on making effective comments, please visit <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a>.
II. What is being addressed in this document?
The EPA is proposing to amend Nebraska's SIP and Operating Permits
Program to include revisions to title 129 of the Nebraska
Administrative Code and to add specific definitions from Nebraska
Revised Statute 81-1502. The EPA is proposing to approve revisions to
the Nebraska SIP received on December 2, 2022. The revisions are to
Title 129--Nebraska Air Quality Regulations and include specific
definitions from Nebraska Revised Statute 81-1502. These proposed
changes include new and renumbered rules, the consolidation of 43
chapters into 16 chapters, replacement of duplicative language with
references to state statute and federal regulation, approval of
specific definitions in state statute, revisions to reflect changes to
state and federal law, and other changes to state regulations.
In addition to the changes discussed above, the state's revision to
title 129 includes state rules that allow small projects to start
construction prior to receiving a construction permit. To be eligible
for this program, the new source or modification to an existing source
must not be subject to Nonattainment New Source Review (NSR), case-by-
case Maximum Achievable Control Technology (MACT) or Prevention of
Significant Deterioration (PSD) or be a source seeking federally
enforceable permit restrictions to avoid review under Nonattainment
NSR, case-by-case MACT or PSD. The source is prohibited from operating
until a construction permit has been issued. Since the source is not
allowed to hook up the equipment to the exhaust stack or operate the
equipment in any way that may emit any pollutant prior to receiving a
construction permit, there is no change to emissions or air quality as
a result of these revisions. Nebraska Department of Environment and
Energy's (NDEE's) requirements for reviewing the permit application and
protecting air quality are unchanged by these revisions. In the
Technical Support Document (TSD) for Chapter 3 included in the docket
for this action, we include more information about this change.
This revision is in compliance with federal requirements,
including: (1) CAA section 110(a)(2)(c), which requires states to
include a minor NSR program in their SIP to regulate modifications and
new construction of stationary sources within the area as necessary to
assure the National Ambient Air Quality Standards (NAAQS) are achieved;
(2) The regulatory requirements under 40 CFR 51.160, including Sec.
51.160(b), which requires states to have legally enforceable procedures
to prevent construction or modification of a source if it would violate
any SIP control strategies or interfere with attainment or maintenance
of the NAAQS; and (3) the statutory requirements under CAA section
110(l), which provides that the EPA cannot approve a SIP revision if
the revision would interfere with any applicable requirement concerning
attainment and reasonable further
[[Page 47505]]
progress, or any other applicable requirement of the CAA.
The state also revised the carbon monoxide threshold for minor
construction permitting from 50 tons per year to 100 tons per year. In
the TSD for Chapter 3 included in the docket for this action, we
explain how allowing NDEE to increase the permitting threshold for
Carbon Monoxide (CO) for minor construction permits meets the
requirements of section 110(l) of the CAA. The summary includes the
state's monitoring and emissions trends for CO and an explanation of
how Nebraska's construction permitting program protects protect air
quality in Nebraska from exceeding the NAAQS. In this analysis we also
stated that the state of Nebraska operates two CO monitors and both are
in attainment for the 1-hour and 8-hour 1971 CO NAAQS, with design
values less than 16% of the 8-hour NAAQS.
In addition, title 129 has been revised to include an exemption to
emission standards for oxides of nitrogen at nitric acid production
installations if the installation is subject to 40 CFR part 60 Subpart
Ga Standards of Performance for Nitric Acid Plants for Which
Construction, Reconstruction, or Modification Commenced After October
14, 2011 or other more stringent federal standards or a more stringent
permit limit. Section 110(l) of the CAA states that EPA cannot approve
a SIP revision if the revision would interfere with any applicable
requirement concerning attainment and reasonable further progress
(RFP), or any other applicable requirement of the CAA. The new
exemptions to the nitrogen oxide limit of this regulation only apply to
sources subject to the NSPS or other more stringent limits. This means
that any source that becomes exempt from the nitrogen oxide limit in
title 129, is controlled for this pollutant by the NSPS or other more
stringent limits. In addition to this regulatory backstop EPA
acknowledges that the state of Nebraska in currently in attainment with
all NAAQS. For these reasons, we find that this action will not
interfere with any applicable requirement concerning attainment and
reasonable further progress (as defined in section 171 of the CAA), or
any other applicable requirement of the CAA as required under section
110(l). This change is further explained the TSD for Chapter 16.
This action also proposes to remove the total reduced sulfur (TRS)
ambient standard from the SIP. On April 16, 2024, Nebraska requested
that EPA not approve this portion of Chapter 2 from the December 2,
2022 submission. This standard was approved into the SIP initially in
Chapter 4, but has no federal basis, so the state has proposed to
remove it from the SIP, but retain it as a state only standard. Because
Nebraska's December 2, 2022 submission requested that the EPA replace
rules that were approved in the SIP with the amended title 129 rules,
and because Nebraska has withdrawn the amended title 129 rules related
to TRS, the EPA proposes to remove rules related to TRS from the SIP.
In the TSD for Chapter 2 included in the docket for this action, we
explain how removing TRS from the SIP meets the requirements of section
110(l) of the CAA.
In Chapter 10 Permits--Public Participation, NDEE has removed
language that is duplicated in Title 115 Chapter 3 Public Hearings
which was approved into the SIP (86 FR 26843). In section 2 of Chapter
10, NDEE has also removed language requiring public notice to be
distributed to persons that have signed up for a department mailing
list. The state continues to distribute public notices for air permits
by email to person who provide and email to the department as required
by 40 CFR 70.7(h)(2).
In section 3 of Chapter 10, NDEE removed language that specifically
requires the public notice to contain the emissions change involved in
any permit modification. Title 115 Chapter 3 section 7 requires the
public notice to contain a brief description of the business conducted
at the facility or activity described in the permit application or the
draft permit. The department considers any change in emissions to be an
activity described in the permit application, and as such, continues to
put any emission change in the public notice. The EPA agrees with NDEE
that this requirement fulfills the requirement of 40 CFR 70.7(h)(2) to
identify the emissions change involved in any permit modification.
All of the revisions are described in detail in the technical
support documents (TSD) included in the docket for this action.
III. Have the requirements for approval of a SIP revision been met?
The State submission has met the public notice requirements for SIP
submissions in accordance with 40 CFR 51.102. The submission also
satisfied the completeness criteria of 40 CFR part 51, appendix V. The
State provided public notice on this SIP revision from February 23,
2022 to March 29, 2022, and held a public hearing on March 30, 2022 and
received no comments. In addition, as explained above and in more
detail in the TSD which is part of this docket, the revision meets the
substantive SIP requirements of the CAA, including section 110 and
implementing regulations.
IV. What action is the EPA taking?
We are proposing to amend the Nebraska SIP by approving the State's
request to revise Title 129--Nebraska Air Quality Regulations and
certain definitions in Nebraska Revised Statute 81-1502. Approval of
these revisions will ensure consistency between state and federally-
approved rules. The EPA has determined that these changes will not
adversely impact air quality.
The EPA is soliciting comment on the substantive revisions detailed
in this proposal and the TSDs. The EPA is not soliciting comment on
existing rule text, including existing rule text that has been
reorganized, as these provisions have been previously approved by the
EPA into the SIP or Operating Permits Program. Final rulemaking will
occur after consideration of any comments.
V. Incorporation by Reference
In this document, the EPA is proposing to include regulatory text
in an EPA final rule that includes incorporation by reference. In
accordance with requirements of 1 CFR 51.5, the EPA is finalizing the
incorporation by reference of the Nebraska rules:
<bullet> Chapter 1--General Provisions; Definitions, which provides
general provisions and definitions for air quality regulations;
<bullet> Chapter 2--Nebraska Air Quality Standards, which lists the
ambient air quality standards;
<bullet> Chapter 3--Construction Permits, which regulates air
construction permitting in Nebraska;
<bullet> Chapter 4--Prevention Of Significant Deterioration of Air
Quality (PSD) which regulates PSD permitting in Nebraska;
<bullet> Chapter 6--Operating Permits which regulates air operating
permitting in Nebraska;
<bullet> Chapter 7--General Permits which regulates air general
permitting in Nebraska;
<bullet> Chapter 8--Permits-By-Rule which regulates air permit-by-
rule permitting in Nebraska;
<bullet> Chapter 9--Permit Revisions; Reopening For Cause which
regulates air permit revisions in Nebraska;
<bullet> Chapter 10--Permits--Public Participation which regulates
public notice requirements for air permitting in Nebraska;
<bullet> Chapter 11--Emissions Reporting, When Required which
regulates air emissions inventory in Nebraska;
[[Page 47506]]
<bullet> Chapter 14--Incinerators, Emission Standards which
regulates emissions from incinerators in Nebraska;
<bullet> Chapter 15--Compliance which regulates compliance with air
regulations in Nebraska;
<bullet> Chapter 16--Sulfur Compound and Nitrogen Oxides Emissions
Standards which regulates emissions of sulfur dioxide and nitrogen
oxides in Nebraska;
<bullet> Appendix I--Hazardous Air Pollutants Sorted by CAS Number
which lists the hazardous air pollutants;
<bullet> Appendix II--Air Pollution Emergency Episodes which
explains Nebraska's emergency episode procedures; and
<bullet> Nebraska Revised Statute 81-1502--Terms, Defined which
contains definitions for Nebraska's air quality regulations.
The state effective date of these rules is September 28, 2022. The
state effective date of Nebraska Revised Statute 81-1502 is March 21,
2019. The EPA has made, and will continue to make, these materials
generally available through <a href="https://www.regulations.gov">https://www.regulations.gov</a> and at the EPA
Region 7 Office (please contact the person identified in the FOR
FURTHER INFORMATION CONTACT section of this preamble for more
information).
Also, in this document, as described in the proposed amendments to
40 CFR part 52 set forth below, EPA is proposing to remove provisions
of the EPA-Approved Nebraska Regulations and Statutes from the Nebraska
State Implementation Plan, which is incorporated by reference in
accordance with the requirements of 1 CFR part 51.
VI. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA 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 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:
<bullet> 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 14094 (88 FR 21879, April 11, 2023);
<bullet> Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
<bullet> 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.);
<bullet> 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);
<bullet> Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
<bullet> Is not subject to Executive Order 13045 (62 FR 19885,
April 23, 1997) because it approves a state program;
<bullet> Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001); and
<bullet> 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 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,
February 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.
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.'' 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.''
The NDEE did not evaluate environmental justice considerations as
part of its SIP submittal; the CAA and applicable implementing
regulations neither prohibit nor require such an evaluation. 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.
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Particulate matter, Reporting
and recordkeeping requirements, Volatile organic compounds.
40 CFR Part 70
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Operating permits,
Reporting and recordkeeping requirements.
Dated: May 21, 2024.
Meghan A. McCollister,
Regional Administrator, Region 7.
For the reasons stated in the preamble, the EPA proposes to amend
40 CFR parts 52 and 70 as set forth below:
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 CC--Nebraska
0
2. In Sec. 52.1420, in the table in paragraph (c):
0
a. Revise the center heading ``Department of Environmental Quality'' to
read ``Department of Environment and Energy''.
0
b. Revise the entries ``129-1'', ``129-2'', ``129-3'', and ``129-4'';
0
c. Remove the entry ``129-5'';
0
d. Revise the entries ``129-6'', ``129-7'', ``129-8'', ``129-9'',
``129-10'', and ``129-11'';
0
e. Remove the entries ``129-12'' and ``129-13'';
0
f. Revise the entries ``129-14'', ``129-15'', and ``129-16'';
0
g. Remove the entries ``129-17'', ``129-19'', ``129-20'', ``129-21'',
``129-22'', ``129-24'', ``129-25'', ``129-30'', ``129-32'', ``129-33'',
``129-34'', ``129-35'', ``129-36'', ``129-37'', ``129-38'', ``129-41'',
``129-42'', ``129-43'', and ``129-44'';
[[Page 47507]]
0
h. Revise the entries ``Appendix I'' and ``Appendix II''; and
0
i. Add the center heading ``Nebraska Revised Statute 81-1502 Terms
Defined'' and the entry ``1502'' after the entry ``115-3''.
The revisions and additions read as follows:
Sec. 52.1420 Identification of plan.
* * * * *
(c) * * *
EPA-Approved Nebraska Regulations
----------------------------------------------------------------------------------------------------------------
State
Nebraska citation Title effective date EPA approval date Explanation
----------------------------------------------------------------------------------------------------------------
State of Nebraska
----------------------------------------------------------------------------------------------------------------
Department of Environment and Energy
Title 129--Nebraska Air Quality Regulations
----------------------------------------------------------------------------------------------------------------
129-1................. General Provisions; 9/28/2022 [Date of publication of
Definitions. the final rule in the
Federal Register],
[Federal Register
citation of the final
rule].
129-2................. Nebraska Air Quality 9/28/2022 [Date of publication of Section 002 Total
Standards. the final rule in the reduced sulfur (TRS)
Federal Register], is not approved into
[Federal Register the SIP.
citation of the final
rule].
129-3................. Construction Permits. 9/28/2022 [Date of publication of
the final rule in the
Federal Register],
[Federal Register
citation of the final
rule].
129-4................. Prevention of 9/28/2022 [Date of publication of
Significant the final rule in the
Deterioration (PSD). Federal Register],
[Federal Register
citation of the final
rule].
129-6................. Operating Permits.... 9/28/2022 [Date of publication of
the final rule in the
Federal Register],
[Federal Register
citation of the final
rule].
129-7................. General Permits...... 9/28/2022 [Date of publication of
the final rule in the
Federal Register],
[Federal Register
citation of the final
rule].
129-8................. Permits-By-Rule...... 9/28/2022 [Date of publication of
the final rule in the
Federal Register],
[Federal Register
citation of the final
rule].
129-9................. Permit Revisions; 9/28/2022 [Date of publication of
Reopening For Cause. the final rule in the
Federal Register],
[Federal Register
citation of the final
rule].
129-10................ Permits--Public 9/28/2022 [Date of publication of
Participation. the final rule in the
Federal Register],
[Federal Register
citation of the final
rule].
129-11................ Emissions Reporting, 9/28/2022 [Date of publication of
When Required. the final rule in the
Federal Register],
[Federal Register
citation of the final
rule].
129-14................ Incinerators, 9/28/2022 [Date of publication of
Emission Standards. the final rule in the
Federal Register],
[Federal Register
citation of the final
rule].
129-15................ Compliance........... 9/28/2022 [Date of publication of
the final rule in the
Federal Register],
[Federal Register
citation of the final
rule].
129-16................ Sulfur Compound and 9/28/2022 [Date of publication of
Nitrogen Dioxides the final rule in the
Emissions Standards. Federal Register],
[Federal Register
citation of the final
rule].
Appendix I............ Hazardous Air 9/28/2022 [Date of publication of
Pollutants Sorted by the final rule in the
CAS Number. Federal Register],
[Federal Register
citation of the final
rule].
Appendix II........... Air Pollution 9/28/2022 [Date of publication of
Emergency Episodes. the final rule in the
Federal Register],
[Federal Register
citation of the final
rule].
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Nebraska Revised Statute 81-1502 Terms Defined
----------------------------------------------------------------------------------------------------------------
1502.................. Terms Defined........ 3/21/2019 [Date of publication of The following
the final rule in the paragraphs of
Federal Register], Nebraska Revised
[Federal Register Statute 81-1502 are
citation of the final approved into the
rule]. SIP: (2) Air
pollution; (3)
Chairperson; and
(10) Person.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
[[Page 47508]]
* * * * *
PART 70--STATE OPERATING PERMIT PROGRAMS
0
3. The authority citation for part 70 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
0
4. Appendix A to part 70 is amended by adding paragraph (r) under
``Nebraska; City of Omaha; Lincoln-Lancaster County Health Department''
to read as follows:
Appendix A to Part 70--Approval Status of State and Local Operating
Permits Programs
* * * * *
Nebraska; City of Omaha; Lincoln-Lancaster County Health Department
* * * * *
(r) The Nebraska Department of Environment and Energy submitted
for program approval revisions to the Nebraska Administrative Code,
title 129, chapters 1, 6, 7, 9, 10, 11, and appendix I on December
2, 2022. Title 129 Chapter 8 ``Operating Permit Content'' has been
renumbered and renamed Chapter 6 ``Operating Permits'' and Chapter 8
is no longer part 70 approved. Appendix III has been repealed and is
no longer part 70 approved. The state effective date is September
28, 2022. The proposed revision effective date is [date 30 days
after date of publication of the final rule in the Federal
Register].
* * * * *
[FR Doc. 2024-11649 Filed 5-31-24; 8:45 am]
BILLING CODE 6560-50-P
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