[Federal Register Volume 81, Number 177 (Tuesday, September 13, 2016)]
[Rules and Regulations]
[Pages 62813-62817]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-21326]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R02-OAR-2016-0060; FRL-9945-84-Region 2]
Approval of Air Quality Implementation Plans; Puerto Rico;
Infrastructure Requirements for the 1997 and 2008 Ozone, 1997 and 2006
Fine Particulate Matter and 2008 Lead NAAQS
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is approving most
elements of the five State Implementation Plan (SIP) revision
submittals from the Commonwealth of Puerto Rico to demonstrate that the
State meets the requirements of section 110(a)(1) and (2) of the Clean
Air Act (CAA) for the 1997 and 2008 ozone, 1997 and 2006 fine
particulate matter (PM2.5) and 2008 lead National Ambient
Air Quality Standards (NAAQS). The SIP is required to address basic
program elements, including, but not limited to: Regulatory structure,
monitoring, modeling, legal authority, and adequate resources necessary
to assure attainment and maintenance of the standards.
[[Page 62814]]
These elements are referred to as infrastructure requirements. In this
rulemaking action, EPA is approving, in accordance with the
requirements of the CAA, the infrastructure SIP submissions with the
exception of some portions of the submittals addressing Prevention of
Significant Deterioration (PSD).
DATES: This rule is effective on October 13, 2016.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R02-OAR-2016-0060. All documents in the docket are listed on
the www.regulations.gov Web site. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available electronically through www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Raymond K. Forde, Air Programs Branch,
Environmental Protection Agency, 290 Broadway, 25th Floor, New York,
New York 10007-1866, (212) 637-3716, or by email at
[email protected].
SUPPLEMENTARY INFORMATION: The SUPPLEMENTARY INFORMATION section is
arranged as follows:
Table of Contents
I. What is the background information?
II. What comments did EPA receive in response to its proposal?
III. What action is EPA taking?
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews
I. What is the background information?
On July 18, 1997, the Environmental Protection Agency (EPA)
promulgated a revised national ambient air quality standard (NAAQS or
standards) for ozone (62 FR 38856) and a new NAAQS for fine particle
matter (PM2.5) (62 FR 38652). The revised ozone NAAQS was
based on 8-hour average concentrations. The 8-hour averaging period
replaced the previous 1-hour averaging period, and the level of the
NAAQS was changed from 0.12 parts per million (ppm) to 0.08 ppm. The
new PM2.5 NAAQS established a health-based annual standard
of 15.0 micrograms per cubic meter ([mu]g/m\3\) based on a 3-year
average of annual mean PM2.5 concentrations, and a 24-hour
standard of 65 [mu]g/m\3\ based on a 3-year average of the 98th
percentile of 24-hour concentrations.
On October 17, 2006 (71 FR 61144), effective December 18, 2006, EPA
revised the 24-hour average PM2.5 primary and secondary
NAAQS from 65 [mu]g/m\3\ to 35 [mu]g/m\3\. As required by section
110(a)(1) of the CAA, the 110(a)(2) submittals were due within three
years after promulgation of the revised standard.
On March 27, 2008 (73 FR 16436) EPA strengthened its NAAQS for
ground-level ozone, revising the 8-hour primary ozone standard to 0.075
ppm. EPA also strengthened the secondary 8-hour ozone standard to the
level of 0.075 ppm making it identical to the revised primary standard.
On November 12, 2008 (73 FR 66964), EPA promulgated a revised NAAQS
for lead. The Agency revised the level of the primary lead standard
from 1.5 [mu]g/m\3\ to 0.15 [mu]g/m\3\. The EPA also revised the
secondary NAAQS to 0.15 [mu]g/m\3\ and made it identical to the revised
primary standard.
Pursuant to section 110(a)(1) of the CAA, states are required to
submit SIPs meeting the applicable requirements of section 110(a)(2)
within three years after promulgation of a new or revised NAAQS or
within such shorter period as EPA may prescribe. Section 110(a)(2)
requires states to address basic SIP elements such as requirements for
monitoring, basic program requirements, and legal authority that are
designed to assure attainment and maintenance of the NAAQS. Section
110(a) imposes the obligation upon states to make a SIP submission to
EPA for a new or revised NAAQS, but the contents of that submission may
vary depending upon the facts and circumstances. In particular, the
data and analytical tools available at the time the state develops and
submits the SIP for a new or revised NAAQS affect the content of the
submission. The content of such SIP submission may also vary depending
upon what provisions the state's existing SIP already contains.
More specifically, section 110(a)(1) provides the procedural and
timing requirements for SIPs. Section 110(a)(2) lists specific elements
that states must meet for ``infrastructure'' SIP requirements related
to a newly established or revised NAAQS. As mentioned earlier, these
requirements include basic SIP elements such as requirements for
monitoring, basic program requirements, and legal authority that are
designed to assure attainment and maintenance of the NAAQS.
EPA is acting on five SIP revision submittals from the Commonwealth
of Puerto Rico Environmental Quality Board (PREQB) to satisfy the
requirements of section 110(a)(2) of the CAA for the 1997 and 2008
ozone, 1997 and 2006 PM2.5 and 2008 lead NAAQS. On November
29, 2006, PREQB submitted SIP revisions addressing the infrastructure
requirements for the 1997 ozone and PM2.5 NAAQS. On January
22, 2013, PREQB submitted SIP revisions addressing the infrastructure
requirements for the 2006 PM2.5 and 2008 ozone NAAQS. On
January 31, 2013, PREQB submitted SIP revisions addressing the
infrastructure requirements for the 2008 lead NAAQS. On April 16, 2015,
PREQB supplemented the January 22, 2013 submittal for the 2006
PM2.5 NAAQS. On February 1, 2016, PREQB submitted additional
provisions for inclusion into the SIP which address infrastructure SIP
requirements for 1997 and 2008 ozone, 1997 and 2006 PM2.5
and 2008 lead NAAQS. Each of the infrastructure SIP submittals
addressed the following infrastructure elements for the applicable
NAAQS which EPA is approving pursuant to section 110(a)(2) of the CAA.
Specifically sections 110(a)(2)(A), (B), portions of (C), portions of
(D), (E), (F), (G), (H), portions of (J), (K), (L), and (M) for the
1997 and 2008 ozone, 1997 and 2006 PM2.5 and 2008 lead
NAAQS.
II. What comments did EPA receive in response to its proposal?
In response to EPA's proposed approval of Puerto Rico's SIP
revision, a comment was received from one interested party. The comment
and EPA's response are as follows:
Comment
The comment asserts that the proposed rule is confusing and hard to
follow. The comment states that PREQB made 5 revisions over the past 11
or so years and that the last public meetings were 5 years ago. The
comment states that this piecemeal approach is not useful for the
public to follow and that EPA's explanation about why it is justified
in accepting this approach is hard to understand. Commentor notes that
the examples of New Mexico and Tennessee cover much shorter timeframes.
Commentor states that the purpose of the current SIP is to show PREQB
can implement, enforce and maintain the NAAQS covered by the SIP and
asks how have they proven this. The comment references a newspaper
article and states that the Puerto Rico Electric Power Authority
(PREPA) is the main polluter on the island and that it is embroiled in
scandal related to burning substandard fuel that calls into question
the records submitted and the roles of PREQB and USEPA. Commentor
[[Page 62815]]
asserts that it is not clear the PREQB is capable of enforcing the SIP
and protecting our air and health of our citizens.
Response
EPA disagrees that PREQB is taking a piecemeal approach to revising
the SIP. Under CAA sections 110(a)(1) and 110(a)(2), each state is
required to submit a SIP that provides for the implementation,
maintenance, and enforcement of each primary and secondary NAAQS.
Moreover, CAA sections 110(a)(1) and 110(a)(2) require each state to
make this new SIP submission within 3 years after promulgation of a new
or revised NAAQS. In addition, EPA is proposing action on these SIP
revisions simultaneously, and not separately, since each SIP revision
addresses the infrastructure requirements of the CAA. PREQB provided
the necessary public notice and public hearings for each SIP revision
as required by the CAA. Public hearings were held by PREQB for the lead
infrastructure SIP on October 10, 2011. Public hearings were held by
PREQB for the ozone and PM2.5 infrastructure SIPs on
December 19, 2011. With respect to public hearings, EPA's proposed
approval is not based on how many public meetings PREQB holds, or how
long ago the last one was held. Rather EPA's proposed approval is
based, in part, on PREQB's ability to hold a public hearing on each
revision to the SIP.
The proposed timeframes for other state SIP actions have no bearing
on EPA's proposed approval of Puerto Rico's SIP submittal. Footnote 4
of the proposal cites New Mexico SIP actions as an example in support
of EPA's statement, in the proposal, ``If states elect to make such
multiple SIP submissions to meet the infrastructure SIP requirements,
EPA can elect to act on such submissions either individually or in a
larger combined action.'' 81 FR 8457. Similarly, footnote 5 of the
proposal cites Tennessee SIP actions as an example in support of EPA's
statement in the proposal that, ``EPA interprets the CAA to allow it to
take action on the individual parts of one larger, comprehensive
infrastructure SIP submission for a given NAAQS without concurrent
action on the entire submission. For example, EPA has sometimes elected
to act at different times on various elements and sub-elements of the
same infrastructure SIP submittal.'' 81 FR 8457.
Commentor is referred to the technical support document (TSD) in
the docket for this matter which describes in detail PREQB's procedures
for implementing, enforcing and maintaining the NAAQS. EPA's proposed
approval is based on PREQB having these procedures in place. Finally,
EPA is not a party to and cannot comment on the ongoing litigation that
the Commentor cites with respect to PREPA.
III. What action is EPA taking?
EPA is approving Puerto Rico's infrastructure submittals dated
November 29, 2006, January 22, 2013 and January 31, 2013, and
supplemented April 16, 2015 and February 1, 2016, for the 1997 ozone
and PM2.5, 2008 ozone and 2006 PM2.5, and 2008
lead NAAQS, respectively, as meeting the requirements of section
110(a)(2) of the CAA, including specifically section 110(a)(2)(A), (B),
(C)(with the exception of program requirements for PSD), (D)(i)(II)
(with the exception of program requirements related to PSD), (D)(ii)
(with the exception of program requirements related to PSD), (E), (F),
(G), (H), (J) (with the exception of program requirements related to
PSD), (K), (L), and (M).
EPA is incorporating by reference Act 416 (Commonwealth of Puerto
Rico's ``Environmental Public Policy Act''), Title II, ``On the
Environmental Board,'' Section 7, ``Creating the Board; Members;
Terms,'' sections A. and D., approved September 22, 2004 and effective
six months after its approval and Act 1 (``Puerto Rico Government
Ethics Act of 2011''), Chapter V, ``Financial Reports,'' (approved
January 3, 2012 and effective January 1, 2012, except for Sections
5.5(a) and 5.8(a), which became effective 180 days after the effective
date), for inclusion into Puerto Rico's SIP. These provisions are
intended to apply to any person subject to CAA section 128, and are
included in the SIP to address the requirements of CAA sections
110(a)(2)(E)(ii) and 128 for the 1997 ozone, 1997 PM2.5,
2006 PM2.5, 2008 lead, and 2008 ozone NAAQS.
EPA is disapproving the following infrastructure SIP requirements
as they relate to the PSD program because Puerto Rico lacks a State
adopted PSD rule to satisfy CAA sections 110(a)(2)(C), (D)(i)(II),
(D)(ii) and (J) for the 1997 and 2008 ozone NAAQS, 1997 and 2006
PM2.5 NAAQS, and 2008 lead NAAQS. It should be noted that a
Federal Implementation Plan (FIP) clock will not be started because a
PSD FIP is currently in place, and sanctions will not be triggered.
Since Puerto Rico is not required to address the visibility portion of
section 110(a)(2)(J) in the context of an infrastructure SIP, and
therefore did not make a submission, action on this sub-element is not
applicable.
A detailed analysis of EPA's review and rationale for approving and
disapproving elements of the infrastructure SIP submittals as
addressing these CAA requirements may be found in the February 19, 2016
proposed rulemaking action (81 FR 8455) and Technical Support Document
(TSD) which are available on line at www.regulations.gov, Docket ID
Number EPA-R02-OAR-2016-0060.
IV. Incorporation by Reference
In this rule, EPA is finalizing regulatory text that includes
incorporation by reference. In accordance with requirements of 1 CFR
51.5, the EPA is finalizing the incorporation by reference of the
Commonwealth of Puerto Rico Statutes described in the proposed
amemdments to 40 CFR part 52 set forth below.
EPA is incorporating by reference Act 416 (Commonwealth of Puerto
Rico's ``Environmental Public Policy Act''), Title II, ``On the
Environmental Board,'' Section 7, ``Creating the Board; Members;
Terms,'' sections A. and D., approved September 22, 2004, and Act 1
(``Puerto Rico Government Ethics Act of 2011''), Chapter V, ``Financial
Reports,'' approved January 3, 2012, for inclusion into Puerto Rico's
SIP to address the requirements of CAA sections 110(a)(2)(E)(ii) and
128.
The EPA has made, and will continue to make, these documents
generally available electronically through http://www.regulations (see
the FOR FURTHER INFORMATION CONTACT section of this preamble for more
information).
V. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting Federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
[[Page 62816]]
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by November 14, 2016. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. This action may not be challenged later in proceedings to
enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Sulfur
oxides, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: May 2, 2016.
Judith A. Enck,
Regional Administrator, Region 2.
Editorial Note: This document was received for publication by
the Office of the Federal Register on August 31, 2016.
For the reasons set forth in the preamble, the Environmental
Protection Agency amends part 52 of chapter I, title 40 of the Code of
Federal Regulations as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart BBB--Puerto Rico
0
2. Section 52.2720 is amended by adding paragraph (c)(39) to read as
follows:
Sec. 52.2720 Identification of plan.
* * * * *
(c) * * *
(39) Revisions to the State Implementation Plan submitted by the
Puerto Rico Environmental Quality Board (EQB) on November 29, 2006, and
supplemented February 1, 2016 for the 1997 ozone and PM2.5
NAAQS; dated January 22, 2013, and supplemented April 16, 2015 and
February 1, 2016 for the 2006 PM2.5 and supplemented
February 1, 2016 for the 2008 ozone NAAQS; and dated January 31, 2013
and supplemented February 1, 2016 for the 2008 lead NAAQS.
(i) Incorporation by reference. These provisions are intended to
apply to any person subject to CAA section 128, and are included in the
SIP to address the requirements of CAA sections 110(a)(2)(E)(ii) and
128.
(A) Act 416 (Commonwealth of Puerto Rico's ``Environmental Public
Policy Act''), Title II, ``On the Environmental Board,'' Section 7,
``Creating the Board; Members; Terms,'' sections A. and D., approved
September 22, 2004;
(B) Act 1 (``Puerto Rico Government Ethics Act of 2011''), Chapter
V, ``Financial Reports,'' approved January 3, 2012.
0
3. Amend Sec. 52.2723 by revising the section heading and the title of
the table and adding a heading and the entries ``Act 1'' and ``Act
416'' at the end of the table to read as follows:
Sec. 52.2723 EPA-approved Puerto Rico regulations and laws.
[[Page 62817]]
Regulation for the Control of Atmospheric Pollution and Puerto Rico Laws
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Puerto Rico regulation Commonwealth effective date EPA approval date Comments
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* * * * * * *
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PUERTO RICO LAWS
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Act 1 (``Puerto Rico Government January 3, 2012.............. September 13, 2016, [insert These provisions
Ethics Act of 2011''), Chapter Federal Register citation]. are intended to
V, ``Financial Reports''. apply to any
person subject
to Clean Air Act
section 128, and
are included in
the SIP for the
limited purpose
of satisfying
the requirements
of Clean Air Act
sections
110(a)(2)(E)(ii)
and 128. January
3, 2012 is the
Commonwealth
approval date.
Act 416 (Commonwealth of Puerto September 22, 2004........... September 13, 2016, [insert These provisions
Rico's ``Environmental Public Federal Register citation]. are intended to
Policy Act''), Title II, ``On apply to any
the Environmental Board,'' person subject
Section 7, ``Creating the to Clean Air Act
Board; Members; Terms,'' section 128, and
sections A. and D. are included in
the SIP for the
limited purpose
of satisfying
the requirements
of Clean Air Act
sections
110(a)(2)(E)(ii)
and 128.
September 22,
2004 is the
Commonwealth
approval date.
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0
4. Add Sec. 52.2730 to read as follows:
Sec. 52.2730 Section 110(a)(2) infrastructure requirements.
(a) 1997 8-hour ozone and the 1997 PM2.5 NAAQS--(1)
Approval. Submittal from Puerto Rico dated November 29, 2006 and
supplemented February 1, 2016, to address the CAA infrastructure
requirements for the 1997 ozone and the 1997 PM2.5 NAAQS.
This submittal satisfies the 1997 ozone and the 1997 PM2.5
NAAQS requirements of the Clean Air Act (CAA) 110(a)(2)(A), (B), (C)
(with the exception of program requirements for PSD), (D)(i)(II) and
(ii) (with the exception of program requirements related to PSD), (E),
(F), (G), (H), (J) (with the exception of program requirements related
to PSD), (K), (L), and (M).
(2) Disapproval. Submittal from Puerto Rico dated November 29, 2006
and supplemented February 1, 2016, to address the CAA infrastructure
requirements for the 1997 ozone and the 1997 PM2.5 NAAQS are
disapproved for the following sections: 110(a)(2)(C) (PSD program
only), (D)(i)(II), PSD program only), (D)(ii) (PSD program only) and
(J) (PSD program only). These requirements are being addressed by Sec.
52.2729 which has been delegated to Puerto Rico to implement.
(b) 2008 ozone and the 2006 PM2.5 NAAQS--(1) Approval. Submittal
from Puerto Rico dated January 22, 2013, supplemented February 1, 2016
to address the CAA infrastructure requirements for the 2008 ozone NAAQS
and supplemented April 16, 2015 and February 1, 2016 to address the CAA
infrastructure requirements for the 2006 PM2.5 NAAQS. This
submittal satisfies the 2008 ozone and the 2006 PM2.5 NAAQS
requirements of the Clean Air Act (CAA) 110(a)(2)(A), (B), (C) (with
the exception of program requirements for PSD), (D)(i)(II) and (ii)
(with the exception of program requirements related to PSD), (E), (F),
(G), (H), (J) (with the exception of program requirements related to
PSD), (K), (L), and (M).
(2) Disapproval. Submittal from Puerto Rico dated January 22, 2013
and supplemented April 16, 2015 and February 1, 2016, to address the
CAA infrastructure requirements for the 2008 ozone and the 2006
PM2.5 NAAQS are disapproved for the following sections:
110(a)(2)(C) (PSD program only), (D)(i)(II) (PSD program only), (D)(ii)
(PSD program only) and (J) (PSD program only). These requirements are
being addressed by Sec. 52.2729 which has been delegated to Puerto
Rico to implement.
(c) 2008 lead NAAQS--(1) Approval. Submittal from Puerto Rico dated
January 31, 2013 and supplemented February 1, 2016, to address the CAA
infrastructure requirements for the 2008 lead NAAQS. This submittal
satisfies the 2008 lead NAAQS requirements of the Clean Air Act (CAA)
110(a)(2)(A), (B), (C) (with the exception of program requirements for
PSD), (D)(i)(II) and (ii) (with the exception of program requirements
related to PSD), (E), (F), (G), (H), (J) (with the exception of program
requirements related to PSD), (K), (L), and (M).
(2) Disapproval. Submittal from Puerto Rico dated January 31, 2013
and supplemented February 1, 2016, to address the CAA infrastructure
requirements for the 2008 lead NAAQS are disapproved for the following
sections: 110(a)(2)(C) (PSD program only), (D)(i)(II) (PSD program
only), (D)(ii) (PSD program only) and (J) (PSD program only). These
requirements are being addressed by Sec. 52.2729 which has been
delegated to Puerto Rico to implement.
[FR Doc. 2016-21326 Filed 9-12-16; 8:45 am]
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