[Federal Register Volume 73, Number 250 (Tuesday, December 30, 2008)]
[Rules and Regulations]
[Pages 79641-79645]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-30984]


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DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS

33 CFR Part 323

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 232

[FRL-8757-7]
RIN 2040-AE96


Revisions to the Clean Water Act Regulatory Definition of 
``Discharge of Dredged Material''; Final Rule

AGENCIES: U.S. Army Corps of Engineers, Department of the Army, DOD; 
and Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The U.S. Army Corps of Engineers (Corps) and the Environmental 
Protection Agency (EPA) (together, the ``Agencies'') are promulgating a 
final rule to amend a Clean Water Act (CWA) section 404 regulation that 
defines the term ``discharge of dredged material.'' This action 
conforms the Corps' and EPA's regulations to a court order invalidating 
the January 17, 2001, amendments to the regulatory definition (referred 
to as the ``Tulloch II'' rule). This final rule responds to the court 
decision by deleting language from the regulation that was invalidated.

DATES: Effective Date: December 30, 2008.

FOR FURTHER INFORMATION CONTACT: For information on the final rule, 
contact Rachel Fertik of EPA at [email protected] or Jennifer 
McCarthy of the Corps at [email protected]. For 
questions on project-specific activities, contact your local Corps 
District office. Addresses and telephone numbers for Corps District 
offices can be obtained

[[Page 79642]]

from the Corps Regulatory Homepage at http://www.usace.army.mil/inet/functions/cw/cecwo/reg/district.htm. If you do not have access to the 
Internet, telephone numbers for Corps District offices can be obtained 
by calling (202) 761-4614.

SUPPLEMENTARY INFORMATION:

I. Background

A. Potentially Affected Entities

    Persons or entities engaged in discharging dredged material to 
waters of the U.S. could be affected by this rule. This final rule 
addresses the regulatory definition of ``discharge of dredged 
material,'' a term that is important in determining what types of 
activities do or do not require a CWA section 404 permit. As described 
further below, this action does not increase regulatory burdens, but 
rather conforms the language in our section 404 regulations to the 
outcome of a lawsuit challenging the regulatory definition. Examples of 
entities that might potentially be affected include:

------------------------------------------------------------------------
                                               Examples of potentially
                 Category                         affected entities
------------------------------------------------------------------------
State/Tribal governments or                 State/tribal agencies or
 instrumentalities.                          instrumentalities that
                                             discharge dredged material
                                             to waters of the U.S.
Local governments or instrumentalities....  Local governments or
                                             instrumentalities that
                                             discharge dredged material
                                             to waters of the U.S.
Industrial, commercial, or agricultural     Industrial, commercial, or
 entities.                                   agricultural entities that
                                             discharge dredged material
                                             to waters of the U.S.
Land developers and landowners............  Land developers and
                                             landowners that discharge
                                             dredged material to waters
                                             of the U.S.
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities that are likely to carry out 
activities affected by this action. This table lists the types of 
entities that the Agencies are now aware of that carry out activities 
potentially affected by this action. Other types of entities not listed 
in the table could also perform activities that are affected. To 
determine whether your organization or its activities are affected by 
this action, you should carefully examine the preamble discussion in 
section II of this final rule. If you still have questions regarding 
the applicability of this action to a particular activity, consult the 
Corps District offices as listed in the preceding FOR FURTHER 
INFORMATION CONTACT section.

B. ``Tulloch'' Rules and Related Litigation

    Clean Water Act section 301 prohibits the discharge of a pollutant 
into a water of the United States, except as in compliance with 
specified sections of the CWA. 33 U.S.C. 1311(a). Among these sections 
is CWA section 404, which authorizes the Corps (or a state or tribe 
with an authorized permitting program) to issue permits for the 
discharge of dredged or fill material into waters of the U.S. Two 
states (New Jersey and Michigan) have assumed the CWA section 404 
permitting program.
    On August 25, 1993 (58 FR 45008), the Agencies issued a regulation 
(the ``Tulloch rule'') defining the term ``discharge of dredged 
material'' to include:
    any addition, including any redeposit, of dredged material, 
including excavated material, into waters of the United States which 
is incidental to any activity, including mechanized landclearing, 
ditching, channelization, or other excavation. 33 CFR 323.2(d)(1); 
40 CFR 232.2.
    The American Mining Congress and several other trade associations 
challenged this regulation. On January 23, 1997, the U.S. District 
Court for the District of Columbia ruled that the regulation exceeded 
the Agencies' authority under the CWA because it impermissibly 
regulated ``incidental fallback'' of dredged material. American Mining 
Congress v. United States Army Corps of Engineers, 951 F.Supp. 267, 
272-76 (D.D.C. 1997). The court concluded that incidental fallback is 
not subject to the CWA as an ``addition'' of pollutants, and declared 
the rule ``invalid and set aside.'' Id; 278. The court also enjoined 
the agencies from applying or enforcing the regulation. Id. The 
government appealed the court's ruling, and, on June 19, 1998, the U.S. 
Court of Appeals for the District of Columbia Circuit affirmed the 
district court's decision. National Mining Association v. United States 
Army Corps of Engineers, 145 F.3d 1339 (D.C. Cir. 1998) (``NMA'').
    The NMA court described incidental fallback as ``redeposit'' of 
dredged material that ``takes place in substantially the same spot as 
the initial removal.'' NMA, 145 F.3d at 1401. The court further 
portrayed such fallback as ``the situation in which material is removed 
from the waters of the United States and a small portion of it happens 
to fall back,'' and concluded that because such fallback represents a 
net withdrawal, it cannot constitute a regulable ``addition'' of a 
pollutant. Id. at 1404. The NMA court did not, however, conclude that 
all forms of redeposit were outside the government's authority to 
regulate under CWA Sec.  404: ``We hold only that by asserting 
jurisdiction over `any redeposit,' including incidental fallback, the 
Tulloch rule outruns the Corps's statutory authority.'' Id. at 1405 
(emphasis in original). The NMA court noted, for example, that 
``redeposits at some distance from the point of removal,'' could still 
be regulated. Id. at 1407, 1410 (Silberman, J., concurring).
    On May 10, 1999, the Agencies issued a final rule modifying our 
definition of ``discharge of dredged material'' in response to the 
Court of Appeals' decision to affirm the district court's order 
invalidating the Tulloch rule (64 FR 25120, 25123) (the ``1999 Rule''). 
The 1999 Rule made those changes necessary to conform the regulations 
to these decisions. First, the rule deleted use of the word ``any'' as 
a modifier of the term ``redeposit.'' Second, the rule expressly 
excluded ``incidental fallback'' from the definition of ``discharge of 
dredged material.'' The resulting definition was as follows:
    (1) Except as provided below in paragraph (2), the term 
discharge of dredged material means any addition of dredged material 
into, including redeposit of dredged material other than incidental 
fallback within, the waters of the United States. The term includes, 
but is not limited to, the following:
    (i) The addition of dredged material to a specified discharge 
site located in waters of the United States;
    (ii) The runoff or overflow, associated with a dredging 
operation, from a contained land or water disposal area; and
    (iii) Any addition, including redeposit other than incidental 
fallback, of dredged material, including excavated material, into 
waters of the United States which is incidental to any activity, 
including mechanized landclearing, ditching, channelization, or 
other excavation.
    (2) The term discharge of dredged material does not include the 
following:
    (i) Discharges of pollutants into waters of the United States 
resulting from the onshore subsequent processing of dredged material 
that is extracted for any commercial use (other than fill). These 
discharges are subject to section 402 of the Clean Water Act even 
though the extraction and deposit of such material may require a 
permit from the Corps or applicable State.
    (ii) Activities that involve only the cutting or removing of 
vegetation above the ground (e.g., mowing, rotary cutting, and 
chainsawing) where the activity neither substantially disturbs the 
root system nor involves mechanized pushing, dragging, or other 
similar activities that redeposit excavated soil material.
    (iii) Incidental fallback.

[[Page 79643]]

    40 CFR 232.2 (July 1, 1999)
(Corresponding changes were also made to Corps regulations at 33 CFR 
323.2(d)(1), (2) (July 1, 1999).
    As explained in the preamble to that rulemaking, the determination 
whether a particular redeposit of dredged material in waters of the 
United States requires a section 404 permit would be done on a case-by-
case basis, consistent with our CWA authorities and governing case law.
    After the Agencies published the 1999 Rule, the National 
Association of Home Builders (the ``Home Builders'') and others filed a 
motion with the district court that issued the AMC injunction seeking 
to compel compliance with that injunction. Home Builders' motion, among 
other things, asserted that the 1999 Rule violated the court's 
injunction by asserting unqualified authority to regulate mechanized 
landclearing. On September 13, 2000, the district court denied Home 
Builders' motion to compel compliance with the AMC injunction, finding 
that the 1999 Rule was consistent with its decision and injunction, and 
the decision of the DC Circuit in NMA. American Mining Congress v. U.S. 
Army Corps of Engineers, 120 F.Supp.2d 23, 29 (D.D.C. 2000). 
Specifically the court determined that the 1999 Rule did not violate 
the court's injunction because that rule ``eliminated Sec.  404 
jurisdiction over incidental fallback, and removes the language 
asserting jurisdiction over `any' redeposit of dredged material.'' Id.
    EPA and the Corps proposed further revisions to the definition of 
``discharge of dredged material'' in August 2000 (65 FR 50108), based 
on the Agencies' understanding of language in the relevant court 
decisions addressing ``incidental fallback.'' Following receipt and 
analysis of public comments, EPA and the Corps promulgated a final rule 
in January 2001 (66 FR 4550). This ``Tulloch II'' rule retained the 
language from the 1999 Rule excluding ``incidental fallback'' from 
regulation, and added language defining ``incidental fallback'' as:

    The redeposit of small volumes of dredged material that is 
incidental to excavation activity in waters of the United States 
when such material falls back to substantially the same place as the 
initial removal. Examples of incidental fallback include soil that 
is disturbed when dirt is shoveled and the back-spill that comes off 
a bucket when such small volume of soil or dirt falls into 
substantially the same place from which it was initially removed. 
(66 FR 4575) (amending 33 CFR 323.2(d)(2)(ii), and 40 CFR 
232.2(2)(ii)).

    This Tulloch II rule also indicated that

    The Corps and EPA regard the use of mechanized earth-moving 
equipment to conduct landclearing, ditching, channelization, in-
stream mining or other earth-moving activity in waters of the United 
States as resulting in a discharge of dredged material unless 
project-specific evidence shows that the activity results in only 
incidental fallback. This paragraph ... does not and is not intended 
to shift any burden in any administrative or judicial proceeding 
under the CWA. (66 FR 4575) (amending 33 CFR 323.2(d)(2)(i); 40 CFR 
232.2(2)(i)).

    In February 2001, NAHB filed a facial challenge in the district 
court to the Tulloch II rule, asserting that the regulations create an 
impermissible rebuttable presumption that all unpermitted dredging 
results in unlawful discharge, and alleging that the rule exceeds the 
Corps' CWA section 404 authority by defining ``incidental fallback'' in 
terms of volume. The district court initially dismissed these claims as 
unripe in National Ass'n of Homebulders v. U.S. Army Corps of 
Engineers, 311 F.Supp.2d 91 (D.D.C. 2004) (NAHB), but the Court of 
Appeals for the DC Circuit reversed the district court's order 
dismissing the case and remanded the case to the district court for 
consideration of the merits. National Ass'n of Homebulders v. U.S. Army 
Corps of Engineers, 440 F.3d 459 (2006).
    In a January 2007 decision, the district court held that the 
Tulloch II rule violates the Clean Water Act because of the way the 
rule used volume to determine ``incidental fallback.'' NAHB, No. 01-
0274 at 7, 10 (D.D.C. Jan. 30, 2007). The court stated that ``[t]he 
difference between incidental fallback and redeposit is better 
understood in terms of two other factors: (1) The time the material is 
held before being dropped to earth and (2) the distance between the 
place where the material is collected and the place where it is 
dropped.'' Id. at 7-8. The court also criticized the rule for failing 
to specify exactly when mechanized land clearing would require a 
permit, since the Court of Appeals has made clear ``that not all uses 
of mechanized earth-moving equipment may be regulated.'' Id. at 9. The 
district court declared the Tulloch II rule ``invalid'' and enjoined 
the Agencies from enforcing the rule. NAHB, No. 01-0274 Order at 1 
(D.D.C. Jan. 30, 2007).

II. This Final Rule

    This final rule addresses the regulatory definition of ``discharge 
of dredged material,'' a term that is important in determining whether 
an activity requires a Clean Water Act section 404 permit. Previous 
amendments to the definition aimed to better differentiate between 
regulable redeposits of dredged material and ``incidental fallback,'' 
which is not regulated under EPA or Corps regulations. Consistent with 
the district court's 2007 NAHB order this rule returns the definition 
of ``discharge of dredged material'' to that which was promulgated in 
the 1999 rule, as described above. The definition outlines several 
examples where a discharge results in a regulable redeposit, but 
specifically excludes ``incidental fallback'' without defining that 
term. As with the 1999 rule, deciding when a particular redeposit of 
dredged material is subject to Clean Water Act jurisdiction will entail 
a case-by-case evaluation, consistent with our Clean Water Act 
authorities and governing case law.
    This rule conforms the language in the Code of Federal Regulations 
with the legal state of the regulations defining ``discharge of dredged 
material'' following the DC district court's decision invalidating the 
2001 amendment to the regulations made by the Tulloch II rule. The 
effect of the district court's 2007 NAHB order was to reinstate the 
1999 rule text. See Georgetown Univ. Hosp. v. Bowen, 821 F.2d 750, 757 
(D.C. Cir. 1987), aff'd 499 U.S. 2104 (1988) (``the effect of 
invalidating an agency rule is to `reinstat[e] the rules previously in 
force.' ''). Before the Tulloch II rule was promulgated in 2001, the 
regulations governing discharges of dredged material were last amended 
on May 10, 1999. The regulations in force following the 1999 
amendments, therefore, have been reinstated by the court's decision on 
the Tulloch II rule. This rulemaking is being undertaken so that the 
published regulatory text will match the regulations reinstated by the 
district court's 2007 NAHB order.
    With one exception described below, this final rule removes all 
changes to the definition of ``discharge of dredged material'' that had 
been made by the Tulloch II rule and restores 33 CFR 323.2(d)(2) and 40 
CFR 232.2 to the text as it existed immediately following the 1999 Rule 
amendments. This means that the definition of ``incidental fallback'' 
is deleted from the regulation, as is the language indicating that the 
agencies ``regard'' the use of mechanized earth-moving equipment as 
resulting in a regulable discharge.
    There is just one facet of the Tulloch II rule that is not being 
reversed by this final rule. The Tulloch II rule removed a 
``grandfather'' provision from the regulations that had exempted from 
404 permit requirements a limited class of discharges. See 33 CFR 
323.2(d)(3)(iii) (1999) and 40 CFR 232.2(3)(iii) (1999).

[[Page 79644]]

In issuing its decision in NAHB (2007), the district court did not 
consider the merits of this provision because it was not at issue in 
the litigation. There is, therefore, no reason to believe that the 
court intended for the Agencies to reinsert this provision into the 
Agencies' regulations when the court declared the Tulloch II rule 
``invalid.'' Moreover, this ``grandfather'' provision expired--by its 
own express terms--in 1996, and it is the Agencies' view that this 
provision would not be meaningful if included in the regulations. 
Indeed, EPA received no comments on this provision when the Agency 
proposed to remove it from the CFR on August 16, 2000 (65 FR 50111, 
50117), and it has been absent from the regulations since 2001.
    The ``grandfather'' provision, which is not being added to the 
Agencies' regulations in this final rule, stated that section 404 
authorization is not required for the following activities:

    Those discharges of dredged material associated with ditching, 
channelization or other excavation activities in waters of the 
United States, including wetlands, for which Section 404 
authorization was not previously required, as determined by the 
Corps district in which the activity occurs or would occur, provided 
[emphasis in original] that prior to August 25, 1993, the excavation 
activity commenced or was under contract to commence work and that 
the activity will be completed no later that August 25, 1994. This 
provision does not apply to discharges associated with mechanized 
landclearing. For those excavation activities that occur on an 
ongoing basis (either continuously or periodically), e.g., mining 
operations, the Corps retains the authority to grant, on a case-by-
case basis, an extension of this 12-month grandfather provision 
provided that the discharger has submitted to the Corps within the 
12-month period an individual permit application seeking 404 
authorization for such excavation activity. In no event can the 
grandfather period under this paragraph extend beyond August 25, 
1996.

    See 33 CFR 323.2(d)(3)(iii) (1999), and 40 CFR 232.2(3)(iii) 
(1999).

III. Statutory and Executive Order Reviews

A. Findings Under 5 U.S.C. 553

    Under the Administrative Procedure Act (APA), 5 U.S.C. 553, 
agencies generally are required to publish a notice of proposed 
rulemaking and provide an opportunity for the public to comment on any 
substantive rulemaking action. Notice is not required, however,

    When the agency for good cause finds (and incorporates the 
finding and a brief statement of reasons therefore in the rules 
issued) that notice and public procedure thereon are impracticable, 
unnecessary, or contrary to the public interest. 5 U.S.C. 
553(b)(3)(B).

    This rule merely conforms the language in our section 404 
regulations to the current status of those regulations after the 2007 
NAHB order and injunction. The district court judgment invalidated the 
changes made to the regulatory definition of ``discharge of dredged 
material'' promulgated on January 17, 2001. By removing the definition 
of ``incidental fallback'' and the language indicating that the 
agencies ``regard'' the use of mechanized earth-moving equipment as 
resulting in a regulable discharge, these revisions conform the 
regulations to reflect the legal status quo in light of the district 
court's January 30, 2007, order in the NAHB case invalidating the 
Tulloch II rule. Therefore, pursuant to 5 U.S.C. 553(b)(3)(B), we find 
that solicitation of public comment is unnecessary.
    To the extent EPA must find good cause for declining to reinstate 
the ``grandfather'' clause described in section II, above, the Agency 
finds such good cause because it is unnecessary to seek comment to 
exclude meaningless provisions from the regulations.
    Under 5 U.S.C. 553(d)(1) and (3), rules must be published at least 
30 days prior to their effective date, except where the rule ``grants 
or recognizes an exemption or relieves a restriction,'' or where 
justified by the agency for ``good cause.'' The good cause rationale 
presented in the preceding paragraph also applies herein. Because this 
final rule simply conforms the published regulatory text with the 
applicable regulations following the district court's January 30, 2007 
order in the NAHB case, the Agencies have good cause to make this rule 
effective immediately.

B. Paperwork Reduction Act

    This final rule does not impose an information collection burden 
under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et 
seq. Burden is defined at 5 CFR 1320.3(b). This is because it merely 
conforms the definition of ``discharge of dredged material'' to reflect 
the district court's January 30, 2007, order in the NAHB case. It does 
not establish or modify any information reporting, or record-keeping 
requirements, and therefore is not subject to the requirements of the 
Paperwork Reduction Act.

C. Other Statutes and Executive Orders

    This final rule does not establish any new requirements, mandates 
or procedures. As explained above, this rule merely conforms the 
regulations' definition of ``discharge of dredged material'' to reflect 
the judicial decision in the NAHB case and associated January 30, 2007, 
order. Because this final rule is a ``housekeeping'' measure undertaken 
to conform the regulatory language to that judicial determination, it 
does not result in any additional or new regulatory requirements. 
Accordingly, it has been determined that this rule is not a 
``significant regulatory action'' under Executive Order 12866, and 
therefore is not subject to review by the Office of Management and 
Budget. In addition, this action does not impose any enforceable duty, 
contain any unfunded mandate, or impose any significant or unique 
impact on small governments as described in the Unfunded Mandates 
Reform Act of 1995 (Pub. L. 104-4). This rule also does not impose any 
federalism requirements or require prior consultation with tribal 
government officials as specified by Executive Order 13132 (64 FR 
43255, August 10, 1999) or Executive Order 13175 (65 FR 67249, November 
9, 2000). This rule does not involve special consideration of 
environmental justice-related issues as required by Executive Order 
12898 (59 FR 7629, February 16, 1994). This rule is not subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001) because it is not a 
significant regulatory action under Executive Order 12866. Because this 
action is not subject to notice-and-comment requirements under the APA 
or any other statute, and because it does not impose any new 
requirements on small entities, it is not subject to the regulatory 
flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601 
et seq.) This rule is not subject to Executive Order 13045 (62 FR 
19885, April 23, 1997) because it is not economically significant as 
defined under Executive Order 12866. Further, this final rule is not 
subject to Executive Order 13045 because it does not establish an 
environmental standard intended to mitigate health or safety risks. 
Because this final rule does not involve technical standards, EPA did 
not consider the use of any voluntary consensus standards. Therefore, 
this rule is not subject to section 12(d) of the National Technology 
Transfer and Advancement Act of 1995, Public Law No. 104-113, Sec.  
12(d) (15 U.S.C. 272 note).
    The Congressional Review Act (CRA), 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. Section 808 allows the issuing agency to 
make a rule

[[Page 79645]]

effective sooner than otherwise provided by the CRA if the agency makes 
a good cause finding that notice and public procedure is impracticable, 
unnecessary or contrary to the public interest. This determination must 
be supported by a brief statement. 5 U.S.C. 808(2). As stated 
previously, we have made such a good cause finding, including the 
reasons stated, and established an effective date of [Date of 
Publication]. Therefore, the Agencies 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 this rule in the Federal Register. This 
action is not a ``major rule'' as defined by 5 U.S.C. 804(2).

List of Subjects

33 CFR Part 323

    Navigation, Water Pollution Control, Waterways.

40 CFR Part 232

    Environmental Protection, Wetlands, Water Pollution Control.

    Dated: December 19, 2008.
John Paul Woodley, Jr.,
Assistant Secretary of the Army (Civil Works), Department of the Army.
    Dated: December 19, 2008.
Stephen L. Johnson,
Administrator, U.S. Environmental Protection Agency.

0
In consideration of the foregoing, 33 CFR part 323 and 40 CFR part 232 
are amended as set forth below:

PART 323--[AMENDED]

0
1. The authority citation for part 323 continues to read as follows:

    Authority: 33 U.S.C. 1344.

0
2. Amend Sec.  323.2 as follows:
0
a. Remove paragraph (d)(2).
0
b. In paragraph (d)(1) introductory text, remove the words ``paragraph 
(d)(3)'' and add, in their place, the words ``paragraph (d)(2)''.
0
c. Redesignate paragraphs (d)(3) through (d)(6) as paragraphs (d)(2) 
through (d)(5), respectively.
0
d. In the newly redesignated paragraph (d)(3), in the first sentence of 
paragraph (d)(3)(i) remove each time they appear the words ``paragraphs 
(d)(5) and (d)(6)'' and add, in their place, the words ``paragraphs 
(d)(4) and (d)(5)''.

PART 232--[AMENDED]

0
1. The authority citation for part 232 continues to read as follows:

    Authority: 33 U.S.C. 1344.

0
2. Amend Sec.  232.2 as follows:
0
a. In the definition of ``Discharge of dredged material'', remove 
paragraph (2).
0
b. In paragraph (1) of the definition of ``Discharge of dredged 
material'', remove the words ``paragraph (3)'' and add, in their place, 
the words ``paragraph (2)''.
0
c. Redesignate paragraphs (3) through (6) as paragraphs (2) through 
(5), respectively.
0
d. In the newly redesignated paragraph (3) of the definition of 
``Discharge of dredged material'', in the first sentence of paragraph 
(3)(i) remove each time they appear the words ``paragraphs (5) and 
(6)'' and add, in their place, the words ``paragraphs (4) and (5)''.

 [FR Doc. E8-30984 Filed 12-29-08; 8:45 am]
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