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APPENDIX D OSWER Directive 9650.12 SUGGESTED PROCEDURES FOR REVIEW OF STATE UST APPLICATIONS May 1992

APPENDIX D: CODIFICATION OF APPROVED STATE PROGRAMS

Proposed/Final Codification Notice Codifying Initial Program Approvals

(Model Federal Register Notice)

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 282

UNDERGROUND STORAGE TANK PROGRAM: CODIFICATION OF APPROVED STATE UNDERGROUND STORAGE TANK PROGRAM FOR [insert name of State]

AGENCY: Environmental Protection Agency

ACTION: Proposed/Final Rule

SUMMARY: The Resource Conservation and Recovery Act of 1976, as amended (RCRA), authorizes the U.S. Environmental Protection Agency (EPA) to grant approval to States to operate their underground storage tank programs in lieu of the Federal program. 40 CFR Part 282 codifies EPA's prior approval of State programs and incorporates by reference those provisions of the State statutes and regulations that will be subject to EPA's inspection and enforcement authorities under Sections 9005 and 9006 of RCRA, 42 U.S.C. 6991d and 6991e. This [[proposal is to codify] or [rule codifies]] in Part 282 the approved underground storage tank program of [insert name of State], which EPA approved on [insert date approval was granted in Federal Register].

DATES: [For proposed rule: Comments on the proposed codification of [insert State name] approved underground storage tank program must be received by the close of business [insert date 30 days after publication]]. [For final rule: The codification is effective [insert date 30 days after publication]. The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register, as of ____, in accordance with 5 U.S.C. 552(a). Copies may be inspected at [insert the name of the agency and address] or at the Office of the Federal Register, 1100 L Street, NW., Room 8401, Washington, DC.

ADDRESSES: [For proposed rule: Written comments should be sent to [insert name, address, and telephone number of the appropriate Regional contact]].

FOR FURTHER INFORMATION CONTACT: [Insert name, address, and telephone number of the appropriate Regional contact].

SUPPLEMENTARY INFORMATION:

Background

Section 9004 of the Resource Conservation and Recovery Act of 1976, as amended, (RCRA), 42 U.S.C. 6991c, allows the U.S. Environmental Protection Agency (EPA) to approve State underground storage tank programs to operate in the State in lieu of the Federal underground storage tank program. On [insert date of final determination], EPA published a Federal Register notice announcing its decision to grant approval to [insert State name]. See _____ FR _____ . Approval was effective on ____.

EPA codifies its approval of State programs in Part 282 of Title 40, Code of Federal Regulations (CFR) and incorporates by reference therein the State statutes and regulations that will be subject to EPA's inspection and enforcement authorities under Sections 9005 and 9006 of RCRA, 42 U.S.C. 6991d and 6991e. Today's [proposed] codification reflects the State program in effect at the time EPA granted [insert State name] approval under Section 9004(a), 42 U.S.C. 6991c(a) for its underground storage tank program.

This effort provides clear notice to the public of the scope of the approved program in each State. Revisions to State underground storage tank programs are necessary when Federal statutory or regulatory authority is modified. By codifying the approved [insert State name] program and by amending the Code of Federal Regulations whenever a new or different set of requirements is approved in [insert State name], the status of Federally approved requirements of the [insert State name] program will be readily discernible.

The Agency will only codify for enforcement purposes those provisions of the [insert State name] underground storage tank program for which approval has been granted by EPA.

To codify the [insert State name] approved underground storage tank program, EPA [[proposes to add] or [has added]] Subpart [ ] to Part 282 of Title 40 of the CFR. Subpart [ ] has previously been reserved for [insert State name]. [[As proposed, section, or [Section]] 282 _____. [[will codify for enforcement purposes or [codifies for enforcement purposes]] the State statutes and regulations. Section, or [Section]] 282 _____. [[will codify or [codifies]] the Memorandum of Agreement, the Attorney General's Statement and the Program Description which are approved as part of the underground storage tank program under Subtitle I of RCRA.]

The Agency retains the authority under Sections 9005 and 9006 of RCRA, 42 U.S.C. 6991d and 6991e, to undertake inspections and enforcement actions in approved States. With respect to such an enforcement action, the Agency will rely on Federal sanctions, Federal inspection authorities and Federal procedures, rather than the State authorized analogs to these provisions. Therefore, the Agency will not codify for purposes of enforcement such particular, approved [insert State name] enforcement authorities. [S]ection 282 _____ lists those approved [insert State name] authorities that would fall into this category.

The public also needs to be aware that some provisions of the State's underground storage tank program are not part of the Federally approved State program. These non-approved provisions are not part of the RCRA Subtitle I program because they are "broader in scope" than Subtitle I of RCRA. See 40 CFR §281.12(a)(3)(ii). As a result, State provisions which are "broader in scope" than the Federal program are not codified for purposes of enforcement in Part 282. Section 282. of the [proposed] codification simply lists for reference and clarity the [insert State name] statutory and regulatory provisions which are "broader in scope" than the Federal program and which are not, therefore, part of the approved program [[proposed for codification] or [being codified today]]. "Broader in scope" provisions can not be enforced by EPA; the State, however, will continue to enforce such provisions.

[If the State is approved for a partial program, or does not have authority to implement requirements for certain segments of the tank universe (as discussed in the MOA), please add language here to indicate that fact and state that EPA is responsible for those portions of the program that have not been approved.]

The codification of approved State programs in the CFR should substantially enhance the public's ability to discern the current status of the approved State program and clarify the extent of Federal enforcement authority. This will be particularly true as States revise their approved programs or incorporate additional Federal requirements.

Certification Under the Regulatory Flexibility Act

Pursuant to the provisions of 5 U.S.C. 605(b), I hereby certify that this action will not have a significant economic impact on a substantial number of small entities. It [[proposes to codify] or [codifies]] the decision already made to approve the [insert State name] underground storage program and has no separate effect on owners and operators of underground storage tanks or upon small entities. This rule, therefore, does not require a regulatory flexibility analysis.

Compliance With Executive Order 12291

The Office of Management and Budget has exempted this rule from the requirements of Section 3 of Executive Order 12291.

Paperwork Reduction Act

Under the Paperwork Reduction Act, 44 U.S.C. 3501 et. seq., Federal agencies must consider the paperwork burden imposed by any information request contained in a proposed or final rule. This rule will not impose any information requirements upon the regulated community.

List of Subjects In 40 CFR Part 282

Administrative practice and procedure, Hazardous materials, Incorporation by reference, Petroleum, State program approval, and Underground storage tanks.

Dated:

____________________________________

Regional Administrator

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OSWER Directive 9650.12

For the reasons set forth in the preamble, 40 CFR Part 282 is [proposed] as follows:

PART 282 - APPROVED UNDERGROUND STORAGE TANK PROGRAMS

1. The authority for Part 282 continues to read as follows:

Authority: Sections 2002, 9004, 9005, and 9006 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C. 6912, 6991c, 6991d, and 6991e.

2. The table of contents for Part 282 is as follows:

SUBPART [insert appropriate letter(s) and appropriate numbers] - State name

282._____ State Approval

282._____ State-Administered Program

282._____ - 282._____ [Reserved]

3. 40 CFR Part 282, Subpart [insert appropriate letter and appropriate numbers] is as follows:

282._____ State Approval

(a) The State of [insert State name] is approved to administer and enforce an underground storage tank program in lieu of the Federal program under Subtitle I of the Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. 6991 et. seq., subject to the Hazardous and Solid Waste Amendments of 1984 (HSWA), (P.L. 98-616, November 8, 1984), 42 U.S.C. 6991c, 6991d, and 6991e). The Federal program for which a State may receive approval is defined in 40 CFR Part 281. The State's program, as administered by the [insert State lead agency] was approved by EPA pursuant to 42 U.S.C. 6991c and Part 281 of this Chapter. EPA's approval was effective on [insert date]. See [insert appropriate Federal Register reference].

(b) [Insert State name] has primary responsibility for enforcing its underground storage tank program. However, EPA retains the authority to exercise its enforcement authorities under Sections 9005 and 9006 of RCRA, 42 U.S.C. 6991d and 6991e, as well as under other Federal laws and regulations.

(c) [Insert State name] must revise its approved program to adopt new changes to the Federal Subtitle I program in accordance with Section 9004 of RCRA, 42 U.S.C. 6991c, and 40 CFR Part 281, Subpart E. If [insert State name] obtains approval for the revised requirements pursuant to Section 9004 of RCRA, 42 U.S.C. 6991c, the newly approved provisions will be listed in §281._____ of this Subpart.

282.______ State-Administered Program: Final Approval Pursuant to Section 9004 of RCRA, 42 U.S.C. 6991c.

[Insert State name] has final approval for the following elements submitted to EPA in [insert State name] program application for final approval and approved by EPA on [insert Federal Register date of final approval.]

(a) State Statute and Regulations. (1) The requirements in the [insert State name] statutes and regulations cited in this paragraph are incorporated by reference and codified as part of the underground storage tank program under Subtitle I of RCRA, 42 U.S.C. 6991 et. seq. This incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552 (a).

(i) [Insert reference for statutory authorities that are part of the approved program under Subtitle I of RCRA.]

(ii) [Insert reference for underground storage tank rules that are part of the approved program under Subtitle I of RCRA.]

(2) The following statutes and regulations, although not codified herein for enforcement purposes, are part of the approved State program.

(i) [Insert reference for statutory authorities that are not to be incorporated by reference but are part of the approved program.]

(ii) [Insert reference for regulations that are not to be incorporated by reference but are part of the approved program under Subtitle I of RCRA.]

(3) The following statutory and regulatory provisions are broader in scope than the Federal program, are not part of the approved program, and are not codified herein for enforcement purposes.

(i) [Insert statutory provisions, if any, that are broader in scope.]

(ii) [Insert regulatory provisions, if any, that are broader in scope.]

(b) Memorandum of Agreement. The Memorandum of Agreement between EPA Region ____ and the [insert State lead agency], signed by the EPA Regional Administrator on [insert appropriate date] is codified as part of the approved underground storage tank program under Subtitle I of RCRA, 42 U.S.C. 6991 et seq. [Insert language describing any portions of the program which EPA will retain authority, e.g., partial program or uncovered segment of the tank universe.]

(c) Statement of Legal Authority. (1) "Attorney General's Statement for Final Approval", signed by the Attorney General of [insert State name] on [insert appropriate date] is codified as part of the approved underground storage tank program under Subtitle I of RCRA, 42 U.S.C. 6991 et. seq.

(2) Letter from the Attorney General of [insert State name] to EPA, [insert appropriate date] is codified as part of the approved underground storage tank program under Subtitle I of RCRA, 42 U.S.C. 6991 et. seq.

(d) Program Description. The program description and any other material submitted as part of the original application or as supplements thereto are codified as part of the approved underground storage tank program under Subtitle I of RCRA, 42 U.S.C. 6991 et. seq.

282._____ - 282.______ Reserved

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OSWER Directive 9650.12

Immediate Final Codification Notice for Program Revisions Codifying Program Revisions

(Model Federal Register Notice)

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 282

UNDERGROUND STORAGE TANK PROGRAM: CODIFICATION OF APPROVED STATE UNDERGROUND STORAGE TANK PROGRAM FOR [insert name of State]

AGENCY: Environmental Protection Agency

ACTION: Immediate Final Rule


SUMMARY: The Resource Conservation and Recovery Act of 1976 as amended (RCRA) authorizes the U.S. Environmental Protection Agency (EPA) to grant approval to States to operate their underground storage tank programs in lieu of the Federal program. 40 CFR Part 282 codifies EPA's prior approval of State programs and incorporates by reference those provisions of the State statutes and regulations that EPA will enforce under Sections 9005 and 9006 of RCRA 42 U.S.C. 6991d and 6991e. Thus, EPA intends to codify the approved underground storage tank program of [insert name of State] in Part 282.

DATES: The codification of [insert State name] approved underground storage tank program shall be effective [insert date 60 days after publication] unless EPA publishes a prior Federal Register action withdrawing this immediate final rule. All comments on the codification of approved program of [insert State name] must be received by the close of business [insert date 30 days after publication]. The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register, as of _____, in accordance with 5 U.S.C. 552(a). Copies may be inspected at [insert the name of the agency and address] or at the Office of the Federal Register, 1100 L Street, NW., Room 8401, Washington, DC.

ADDRESSES: Written comments should be sent to [insert name, address, and telephone number of the appropriate Regional contact].

FOR FURTHER INFORMATION CONTACT: [Insert name, address, and telephone number of the appropriate Regional contact].

SUPPLEMENTARY INFORMATION:

Background

Section 9004 of the Resource Conservation and Recovery Act of 1976, as amended, (RCRA), 42 U.S.C. 6991, allows the U.S. Environmental Protection Agency (EPA) to approve State underground storage tank programs to operate in the State in lieu of the Federal underground storage tank program. On [insert date of final determination], EPA published a Federal Register notice announcing its decision to grant approval to [insert State name]. (See _____ FR _____ ).

EPA codifies its approval of State programs in Part 282 of Title 40, Code of Federal Regulations (CFR) and incorporates by reference therein the State statutes and regulations that EPA will enforce under Sections 9005 and 9006 of RCRA 42 U.S.C. 6973, 6991d, and 6991e. The intended codification reflects the State program in effect at the time EPA grants [insert State name] approval under Section 9004(a) 42 U.S.C. 6991c(a) for its underground storage tank programs.

This effort provides clear notice to the public of the scope of the approved program in each State. Revisions to State underground storage tank programs are necessary when Federal statutory or regulatory authority is modified. By codifying the approved [insert State name] program and by amending the Code of Federal Regulations whenever a new or different set of requirements is approved in [insert State name], the status of Federally approved requirements of the [insert State name] program will be readily discernible.

The Agency will only codify for enforcement purposes those provisions of the [insert State name] underground storage tank program for which approval has been granted by EPA.

To codify the [insert State name] approved underground storage tank program, EPA intends to add Subpart [ ] to Part 282 of Title 40 of the CFR. Subpart [ ] has previously been reserved for [insert State name]. Section 282 _____. intends to codify for enforcement purposes the State statutes and regulations. Section 282 _____. codifies the Memorandum of Agreement, the Attorney General's Statement and the Program Description which are part of the approved underground storage tank program under Subtitle I of RCRA.

The Agency retains the authority under Sections 9005 and 9006 of RCRA, 42 U.S.C. 6973, 6991d, and 6991e, to undertake enforcement actions in approved States. With respect to such an enforcement action, the Agency will rely on Federal sanctions, Federal inspection authorities and the Federal Administrative Procedure Act rather than the State authorized analogs to these requirements. Therefore, the Agency does not intend to codify for purposes of enforcement such particular, approved [insert State name] enforcement authorities. [Proposed] [S]ection 282 _____ lists those approved [insert State name] authorities that would fall into this category.

The public also needs to be aware that some provisions of the State's underground storage tank program are not part of the Federally approved State program. These non-approved provisions are not part of the RCRA Subtitle I program because they are "broader in scope" than Subtitle I of RCRA. See 40 CFR §281.12(a)(3)(ii). As a result, State provisions which are "broader in scope" than the Federal program are not codified for purposes of enforcement in Part 282. Section 282 _____. of the intended codification simply lists for reference and clarity the [insert State name] statutory and regulatory provisions which are "broader in scope" than the Federal program and which are not, therefore, part of the approved program being codified. "Broader in scope" provisions can not be enforced by EPA; the State, however, will continue to enforce such provisions.

The codification of approved State programs in the CFR should substantially enhance the public's ability to discern the current status of the approved State program and clarify the extent of Federal enforcement authority. This will be particularly true as States revise their approved programs or adopt additional Federal requirements.

Certification Under the Regulatory Flexibility Act

Pursuant to the provisions of 5 U.S.C. 605(b), I hereby certify that this action will not have a significant economic impact on a substantial number of small entities. It intends to codify the decision already made to authorize the [insert State name] program and has no separate effect on owners and operators of underground storage tanks or upon small entities. This rule, therefore, does not require a regulatory flexibility analysis.

Compliance With Executive Order 12291

The Office of Management and Budget has exempted this rule from the requirements of Section 3 of Executive Order 12291.

Paperwork Reduction Act

Under the Paperwork Reduction Act., 44 U.S.C. 3501 et seq., Federal agencies must consider the paperwork burden imposed by any information request contained in a proposed or final rule. This rule will not impose any information requirements upon the regulated community.

List of Subjects In 40 CFR Part 282

Administrative practice and procedure, Hazardous materials, Incorporation by reference, Petroleum, State program approval, and Underground storage tanks.

Dated:

____________________________________

Regional Administrator

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OSWER Directive 9650.12

For the reasons set forth in the preamble, 40 CFR Part 282 is [proposed to be] revised as follows:

PART 282 - APPROVED UNDERGROUND STORAGE TANK PROGRAMS

1. The authority for Part 282 continues to read as follows:

Authority: Sections 2002, 9004, 9005, and 9006 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C. 6912, 6991(c), (d), and (e).

2. The table of contents for Part 282 is revised to read as follows:

SUBPART [insert appropriate letter(s) and appropriate numbers] - State name

282._____ State Approval

282._____ State-Administered Program

282._____ - 282._____ [Reserved]

3. 40 CFR Part 282, Subpart [insert appropriate letter and appropriate numbers] is amended to read as follows:

282._____ State Approval

(a) The State of [insert State name] is approved to administer and enforce an underground storage tank program in lieu of the Federal program under Subtitle I of the Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. 6991 et seq., subject to the Hazardous and Solid Waste Amendments of 1984 (HSWA), (P.L. 98-616, November 8, 1984), 42 U.S.C. 6991 (c), (d), and (e). The Federal program for which a State may receive approval is defined in 40 CFR Part 281. The State's program, as administered by the [insert State lead agency] was approved by EPA pursuant to 42 U.S.C. 6991 (c) and Part 281 of this Chapter. EPA's approval was effective on [insert appropriate Federal Register reference].

(b) [Insert State name] has primary responsibility for enforcing its underground storage tank program. However, EPA retains the authority to exercise its enforcement authorities under Sections 9005 and 9006 of RCRA, 42 U.S.C. 6991d and 6991e, as well as under other Federal laws and regulations.

(c) [Insert State name] must revise its approved program to adopt new changes to the Federal Subtitle I program in accordance with Section 9004 of RCRA 42 U.S.C. 6991c and 40 CFR Part 281, Subpart E. If [insert State name] obtains approval for the revised requirements pursuant to Section 9004 42 U.S.C. 6991c, the newly approved provisions will be listed in §281._____ of this Subpart.

282.______ State-Administered Program: Final Approval Pursuant to Section 9004 of RCRA, 42 U.S.C. 6991c.

[Insert State name] has final approval for the following elements submitted to EPA in [insert State name] program application for final approval and approved by EPA on [insert Federal Register date of final approval.]

(a) State Statute and Regulations. (1) The requirements in the [insert State name] statutes and regulations cited in this paragraph are incorporated by reference and codified as part of the underground storage tank program under Subtitle I of RCRA, 42 U.S.C. 6991 et seq. This incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552 (a).

(i) [Insert reference for statutory authorities that are part of the approved program under Subtitle I of RCRA.]

(ii) [Insert reference for underground storage tank rules that are part of the approved program under Subtitle I of RCRA.]

(2) The following statutes and regulations, although not codified herein for enforcement purposes, are part of the approved State program.

(i) [Insert reference for statutory authorities that are not to be incorporated by reference but are part of the approved program.]

(ii) [Insert reference for regulations that are not to be incorporated by reference but are part of the approved program under Subtitle I of RCRA.]

(3) The following statutory and regulatory provisions are broader in scope than the Federal program, are not part of the approved program, and are not codified herein for enforcement purposes.

(i) [Insert statutory provisions, if any, that are broader in scope.]

(ii) [Insert regulatory provisions, if any, that are broader in scope.]

(b) Memorandum of Agreement. The Memorandum of Agreement between EPA Region ____ and the [insert State lead agency], signed by the EPA Regional Administrator on [insert appropriate date] is codified as part of the approved underground storage tank program under Subtitle I of RCRA, 42 U.S.C. 6991 et seq.

(c) Statement of Legal Authority. (1) "Attorney General's Statement for Final Approval", signed by the Attorney General of [insert State name] on [insert appropriate date] is codified as part of the approved underground storage tank program under Subtitle I of RCRA, 42 U.S.C. 6991 et seq.

(2) Letter from the Attorney General of [insert State name] to EPA, [insert appropriate date] is codified as part of the approved underground storage tank program under Subtitle I of RCRA, 42 U.S.C. 6991 et seq.

(d) Program Description. The program description and any other material submitted as part of the original application or as supplements thereto are codified as part of the approved underground storage tank program under Subtitle I of RCRA, 42 U.S.C. 6991 et seq.

282._____ - 282.______ Reserved

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OSWER Directive 9650.12

CFR REFERENCE FOR CODIFICATION OF STATE UST PROGRAMS

PART 282

Subpart B - Alabama
282.59-282.99

Subpart C - Alaska
282.100-282-149

Subpart D - Arizona
282.150-282.199

Subpart E - Arkansas
282.200-282.249

Subpart F - California
282.250-282.299

Subpart G - Colorado
282.300-282.349

Subpart H - Connecticut
282.350-282.399

Subpart I - Delaware
282.400-282.449

Subpart J - District of Columbia
282.450-282.499

Subpart K - Florida
282.500-282.549

Subpart L - Georgia
282.550-282.599

Subpart M - Hawaii
282.600-282.649

Subpart N - Idaho
282.650-282.699

Subpart O - Illinois
282.700-282.749

Subpart P - Indiana
282.750-282.799

Subpart Q - Iowa
282.800-282.849

Subpart R - Kansas
282.850-282.899

Subpart S - Kentucky
282.900-282.949

Subpart T - Louisiana
282.950-282.999

Subpart U - Maine
282.1000-282.1049

Subpart V - Maryland
282.1050-282.1099

Subpart W - Massachusetts
282.1100-282.1149

Subpart X - Michigan
282.1150-282.1199

Subpart Y - Minnesota
282.1200-282.1249

Subpart Z - Mississippi
282.1250-282.1299

Subpart AA - Missouri
282.1300-282.1349

Subpart BB - Montana
282.1350-282.1399

Subpart CC - Nebraska
282.1400-282.1449

Subpart DD - Nevada
282.1450-282.1499

Subpart EE - New Hampshire
282.1500-282.1549

Subpart FF - New Jersey
282.1550-282.1599

Subpart GG - New Mexico
282.1600-282.1649

Subpart HH - New York
282.1650-282.1699

Subpart II - North Carolina
282.7000-282.1749

Subpart JJ - North Dakota
282.1750-282.1799

Subpart KK - Ohio
282.1800-282.1849

Subpart LL - Oklahoma
282.1850-282.1899

Subpart MM - Oregon
282.1900-282.1949

Subpart NN - Pennsylvania
282.1950-282.1999

Subpart OO - Rhode Island
282.2000-282.2049

Subpart PP - South Carolina
282.2050-282.2099

Subpart QQ - South Dakota
282.2100-282.2149

Subpart RR - Tennessee
282.2150-282.2199

Subpart SS - Texas
282.2200-282.2249

Subpart TT - Utah
282.2250-282.2299

Subpart UU - Vermont
282.2300-282.2349

Subpart VV - Virginia
282.2350-282.2399

Subpart WW - Washington
282-2400-282.2449

Subpart XX - West Virginia
282.2450-282.2499

Subpart YY - Wisconsin
282.2500-282.2549

Subpart ZZ - Wyoming
282.2550-282.2599

Subpart AAA - Guam
282.2600-282.2649

Subpart BBB - Puerto Rico
282.2650-282.2699

Subpart CCC - Virgin Islands
282.2700-282.2749

Subpart DDD - American Samoa
282.2750-282.2799

Subpart EEE - Commonwealth of the Northern Mariana Islands
282.2800-282.2849

[ Directive 9650.12 ][ Appendices ]

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