[Federal Register Volume 79, Number 152 (Thursday, August 7, 2014)]
[Rules and Regulations]
[Pages 46190-46194]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-18709]


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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

44 CFR Part 206

[Docket ID FEMA-2012-0004]
RIN 1660-AA75


Debris Removal: Eligibility of Force Account Labor Straight-Time 
Costs Under the Public Assistance Program for Hurricane Sandy

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Final rule.

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SUMMARY: This rule finalizes, without change, an interim final rule 
that published in the Federal Register on November 9, 2012, authorizing 
reimbursement of force account labor under the Public Assistance 
Program for debris removal work related to Hurricane Sandy.

DATES: This final rule is effective September 8, 2014.

FOR FURTHER INFORMATION CONTACT: William Roche, Director, Public 
Assistance Division, Federal Emergency Management Agency, 500 C Street 
SW., Washington, DC 20472-3100, (phone) 202-212-2340; or (email) 
[email protected].

SUPPLEMENTARY INFORMATION: 
    This rule finalizes, without change, an interim final rule (IFR) 
that published in the Federal Register on November 9, 2012, authorizing 
reimbursement of force account labor under the Public Assistance 
Program for debris removal work related to Hurricane Sandy. Below, we 
provide (1) general background on FEMA's debris removal program; (2) a 
discussion of the specific IFR at issue, which deals with a narrow band 
of debris removal activities related to Hurricane Sandy; and (3) a 
discussion of comments received on the IFR. A series of regulatory 
analyses and implementing language follow.

I. Background

    Every year, disasters strike communities throughout the United 
States. When an incident is of such magnitude that it is beyond the 
capabilities of the State, Tribal and local governments to efficiently 
respond, a Governor may request that the President declare that an 
emergency or major disaster exists in the State, under the authority of 
the Robert T. Stafford Disaster Relief and Emergency Assistance Act 
(Stafford Act), 42 U.S.C. 5121-5207.
    If the President declares an emergency or major disaster, FEMA may 
award Public Assistance grants to assist State and local governments 
(including Indian Tribal governments) and certain private nonprofit 
(PNP) organizations, as defined in subpart H of 44 CFR part 206 
(collectively referred to as ``applicants,'' ``grantees,'' or 
``subgrantees''), with the response to and recovery from major 
disasters and emergencies. Specifically, the Public Assistance Program 
provides assistance for debris removal, emergency protective measures, 
and permanent restoration of infrastructure serving a public purpose.
    Sections 403(a)(3)(A), 407, and 502(a)(5) of the Stafford Act 
authorize FEMA to provide assistance to eligible applicants to remove 
debris from public and private property following a Presidential major 
disaster or emergency declaration, when in the public interest. See 42 
U.S.C. 5170b(a)(3)(A), 5173, and 5192. Removal must be necessary to 
eliminate immediate threats to lives, public health, and safety; 
eliminate immediate threats of significant damage to improved public or 
private property; or ensure the economic recovery of the affected 
community-at-large.\1\ See 44 CFR 206.224(a). The debris must be the 
result of the disaster and located in the disaster area, and the 
applicant must have the legal responsibility to remove the debris. See 
44 CFR 206.223(a). To ensure these requirements are met, FEMA has 
issued extensive guidance on oversight processes and procedures to 
monitor debris removal activities.
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    \1\ In 44 CFR 206.224, FEMA also defines debris removal to be in 
the ``public interest'' when necessary to mitigate the risk to life 
and property by removing substantially damaged structures and 
associated appurtenances as needed to convert property acquired 
through a FEMA hazard mitigation program to uses compatible with 
open space, recreation, or wetlands management practices. See 44 CFR 
206.224(a)(4).
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    In general, FEMA regulations at 44 CFR 206.228 authorize 
reimbursement of overtime, but not regular time, for an applicant's own 
labor forces and equipment, referred to as ``force account labor,'' 
performing debris removal work. The regular time (also called 
``straight-

[[Page 46191]]

time'') salaries and benefits of permanently employed personnel are 
generally not eligible in calculating allowable costs. However, FEMA 
can reimburse reasonable costs associated with a debris contract, 
including the cost of contract workers' regular time as well as 
overtime. This creates an incentive for applicants to contract for 
debris removal work, even after relatively small events which could 
have been handled in part, or entirely, by an applicant's employees. 
State and local applicants have long requested reimbursement from FEMA 
for straight-time salaries for their force account labor who were 
pulled away from their normal day-to-day work to perform debris removal 
operations.
    The Fiscal Year (FY) 2007 Department of Homeland Security 
Appropriations Act (Appropriations Act), Public Law 109-295, authorized 
FEMA to conduct a Public Assistance Pilot Program to reduce the costs 
to the Federal government of providing debris-related assistance to 
States and local governments, increase flexibility in the 
administration of assistance, and expedite the provision of assistance 
under sections 403(a)(3)(A), 502(a)(5), and 407 of the Stafford Act. 6 
U.S.C. 777. Under the Force Account Labor provision of the Pilot 
Program, FEMA reimbursed the straight-time salaries and benefits of the 
applicant's employees who performed disaster-related debris and 
wreckage removal work. FEMA's objective in reimbursing force account 
labor was to provide applicants the opportunity and incentive to use 
their own employees for debris removal activities in situations where 
applicants determine that is the most appropriate method to perform the 
work. In its evaluation of the Pilot Program, FEMA found that debris 
removal operations and monitoring performed by force account labor 
improved efficient and timely debris removal by starting operations 
more expeditiously, reducing delays related to procuring and mobilizing 
contractors, and decreasing complaints and negotiations over costs and 
scopes of work. The Pilot Program ended on December 31, 2008.

II. Discussion of the Rule

    This rule finalizes, without change, the IFR that published in the 
Federal Register on November 9, 2012 (77 FR 67285). The IFR implemented 
the Force Account Labor procedure of the Public Assistance Pilot 
Program for debris removal work related to Hurricane Sandy, a 
catastrophic disaster event of unprecedented magnitude and severity. 
The geographic breadth of this storm was exceptional, covering major 
portions of the Mid-Atlantic and Northeast, and bringing devastation to 
much of the Eastern seaboard. In response to this event, FEMA issued 
the IFR to accelerate the nation's recovery by maximizing the use of 
force account labor.
    The IFR revised 44 CFR 206.228(a)(2) to allow for the reimbursement 
of straight-or regular time salaries and benefits of a grantee's or 
subgrantee's permanently employed personnel for debris removal work 
performed due to Hurricane Sandy. In order to receive reimbursement, 
force account labor employees must work exclusively on Hurricane Sandy 
debris removal. They cannot combine Hurricane Sandy debris removal work 
with their normal work-related tasks or any other tasks, including 
tasks related to emergencies or major disasters declared by the 
President before October 27, 2012. Finally, reimbursement is restricted 
to 30 consecutive calendar days. These provisions provide an incentive 
to applicants to maximize the use of their force account labor, thus 
lessening the need to secure and oversee contract labor, and 
encouraging them to allot 100 percent of the work time of their regular 
staff to Hurricane Sandy debris removal, thereby contributing to a 
quicker and more efficient recovery.
    Eligible activities include disaster-related debris and wreckage 
removal work for any major disaster or emergency declared by the 
President on or after October 27, 2012, in response to Hurricane Sandy 
under Category A, Debris Removal, and/or Category B, Emergency 
Protective Measures. In practice, FEMA treats debris removal work the 
same whether it is under Category A or under Category B. Therefore, the 
IFR made straight-or regular time salaries and benefits for an eligible 
applicant's force account labor eligible in calculating the cost of 
eligible Category A and/or Category B debris removal work. The IFR did 
not allow for the reimbursement of straight- or regular time salaries 
and benefits of a grantee's or subgrantee's permanently employed 
personnel for any other emergency protective measures under Category B.

Non-Substantive Changes

    The IFR added a reference to ``grantee'' in paragraph (a)(2) of 
section 206.228; previously that section referred only to 
``subgrantees.'' The eligibility of force account labor costs outlined 
in 44 CFR 206.228(a)(2) applies to grantees as well as subgrantees. 
States and Tribes act as the grantees for the Public Assistance 
Program. Applicants who are successful in obtaining Public Assistance 
are identified as ``subgrantees.'' Since State, Tribal, and local 
government agencies are eligible applicants for Public Assistance, 
States may act as the grantee, as well as the subgrantee. While most 
work is performed by the subgrantees, it is possible that grantees 
could perform eligible debris removal and/or permanent work, and 
therefore incur straight-time force account labor costs for those 
activities. To be more accurate, the IFR added ``grantee'' to paragraph 
(a)(2) of section 206.228. The IFR also established a cross reference 
to the exception for host state evacuation and sheltering in 44 CFR 
206.202.

Sandy Recovery Improvement Act of 2013 (SRIA)

    After publication of the IFR, Public Law 113-2 (SRIA) was enacted. 
Section 1102 of SRIA authorizes FEMA to implement a pilot program for 
Public Assistance ``alternative procedures'' until such time as FEMA 
can promulgate such procedures via notice and comment rulemaking. 42 
U.S.C. 5189f(f). One of these alternative procedures includes 
reimbursement of straight time for debris removal work. 42 U.S.C. 
5189f(e)(2)(D). FEMA initiated a pilot program for debris alternative 
procedures, including the provision for reimbursement of straight time 
for debris removal work, in June of 2013. FEMA plans to use information 
and data gathered from the pilot program to initiate a separate 
rulemaking related to more comprehensive implementation of the debris 
alternative procedures under section 1102.

III. Discussion of Public Comments

    FEMA received three comments on the IFR (two private associations, 
one private citizen). One commenter recommended that FEMA reimburse 
``over-time hours of emergency and city personnel or any hours that are 
expended beyond the normal working conditions.'' FEMA currently does 
reimburse overtime force account labor costs for all emergency work. 
See 44 CFR 206.228(a)(2). The IFR allowed for reimbursement of straight 
time for certain Hurricane Sandy-related debris removal activities, for 
the reasons described above.
    One commenter supported the IFR but recommended that FEMA provide 
more flexibility by allowing waivers and extensions to the 30-day 
limitation. FEMA respectfully declines to incorporate the commenter's 
recommendation. Waivers and extensions would create an administrative 
burden and would ultimately delay debris removal

[[Page 46192]]

operations. This rule was instituted in the weeks immediately following 
Sandy to support as expeditious a recovery as possible from that storm; 
the focus of the rule was on recovery from the immediate aftermath. 
FEMA chose 30 days to capture that period. Therefore, FEMA has elected 
not to allow waivers of and extensions to the 30-day limitation.
    One commenter inquired whether the IFR applied to eligible 
nonprofit entities (specifically rural electric cooperatives). FEMA 
responds that nonprofit entities, including rural electric 
cooperatives, are eligible for Public Assistance pursuant to 44 CFR 
206.221 and 44 CFR 206.222. The straight- or regular time salaries and 
benefits of personnel of eligible nonprofit entities, including rural 
electric cooperatives, would be eligible if they otherwise meet the 
criteria of the IFR, that is, the debris removal work is performed as 
the result of Hurricane Sandy and is the only work performed by 
straight-time personnel for the relevant timeframe.
    The commenter also suggested that FEMA apply the IFR to all major 
disasters and emergencies rather than limiting it to Hurricane Sandy 
work. FEMA plans to use information and data gathered from the pilot 
program to initiate a separate rulemaking related to more comprehensive 
implementation of the debris alternative procedures under section 1102.

IV. Regulatory Analysis

A. National Environmental Policy Act (NEPA)

    Under the National Environmental Policy Act of 1969 (NEPA), as 
amended, 42 U.S.C. 42 U.S.C. 4321 et. seq., an agency must prepare an 
environmental assessment or environmental impact statement for any 
rulemaking that significantly affects the quality of the human 
environment. As explained below, FEMA has determined that this 
rulemaking does not significantly affect the quality of the human 
environment and consequently has not prepared an environmental 
assessment or environmental impact statement.
    Section 316 of the Stafford Act exempts from the NEPA requirements 
debris removal actions undertaken under Sections 402, 403, 407, or 502 
of the Act. Rulemaking actions related to actions statutorily excluded 
are not themselves excluded from the application of NEPA. NEPA 
implementing regulations governing FEMA activities at 44 CFR 
10.8(d)(2)(ii) categorically exclude the preparation, revision, and 
adoption of regulations from the preparation of an EA or EIS, where the 
rule relates to actions that qualify for categorical exclusions. FEMA's 
``List of exclusion categories'' at 44 CFR 10.8(d)(2)(ii) categorically 
excludes the preparation, revision, and adoption of regulations related 
to actions that qualify for categorical exclusions. Further, essential 
assistance under section 403 and debris removal under section 407 of 
the Stafford Act are categorically excluded at 44 CFR 
10.8(d)(2)(xix)(B) and (C). These categorical exclusions cover all 
debris removal actions under the Stafford Act.
    Finally, FEMA has evaluated the potential for extraordinary 
circumstances as required in 44 CFR 10.8(d)(3) and determined that the 
procedure authorized under this rule does not change its environmental 
effect. The straight-time force account labor provision does not change 
the nature or extent of debris removal activities reimbursed by FEMA. 
The potential for reimbursement of straight-time force account labor 
provides applicants with more flexibility to perform debris removal 
work with their own employees in addition to, or in place of, 
contractors, but does not affect the eligibility of debris removal 
actions under this Program. An environmental assessment was not 
prepared for this rulemaking action because a categorical exclusion 
applies and no extraordinary circumstances exist.

B. Paperwork Reduction Act of 1995

    As required by the Paperwork Reduction Act of 1995 (PRA), as 
amended, 44 U.S.C. 3501 et seq., an agency may not conduct or sponsor, 
and a person is not required to respond to, a collection of information 
unless the collection of information displays a valid control number. 
The collection of information associated with the Public Assistance 
Program is approved under OMB Control No. 1660-0017, which expires on 
June 30, 2016. This rule does not contain any new collections of 
information.

C. Executive Order 12866, Regulatory Planning and Review & Executive 
Order 13563, Improving Regulation and Regulatory Review

    Executive Orders 13563 and 12866 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This rule has not been designated a ``significant 
regulatory action,'' under section 3(f) of Executive Order 12866. 
Accordingly, the rule has not been reviewed by the Office of Management 
and Budget.
    The rule provides (unquantified) benefits that are vitally 
important to further FEMA's mission. This rule increases efficiency, 
flexibility, and reduces the costs of performing debris removal work 
after Hurricane Sandy. The rule affects States, Indian Tribal 
governments, local governments, as well as certain private non-profit 
organizations that have been affected by Hurricane Sandy, by maximizing 
the use of force account labor for debris removal, thus accelerating 
the recovery process.
    Review of FEMA's existing debris regulations revealed that they 
could be expanded to provide for more efficient and timely debris 
removal after a disaster. As discussed earlier in this preamble, the 
reimbursement of force account labor for debris removal under the Pilot 
Program improved efficient and timely debris removal. In reimbursing 
force account labor, FEMA provided applicants with an incentive to 
perform the work in-house, as well as improve oversight of debris 
removal operations. Therefore, FEMA is expanding the debris regulations 
to incorporate this procedural improvement in response to Hurricane 
Sandy.

D. Executive Order 13132, Federalism

    Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999), 
sets forth principles and criteria that agencies must adhere to in 
formulating and implementing policies that have federalism 
implications, that is, regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.'' Federal 
agencies must closely examine the statutory authority supporting any 
action that would limit the policymaking discretion of the States and, 
to the extent practicable, must consult with State and local officials 
before implementing any such action.
    FEMA has reviewed this rule under Executive Order 13132 and has 
concluded that this rule does not have federalism implications as 
defined by Executive Order 13132. FEMA has determined that this rule 
does not significantly affect the rights, roles, and responsibilities 
of States, and involves no preemption of State law nor does it

[[Page 46193]]

limit State policymaking discretion. This rulemaking amends a voluntary 
grant program that may be used by State, local and Tribal governments 
and eligible private nonprofit organizations to receive Federal grants 
to assist in the recovery from disasters. States are not required to 
seek grant funding, and this rulemaking does not limit their 
policymaking discretion.

E. Executive Order 12898, Environmental Justice

    Under Executive Order 12898, ``Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations'' (59 FR 7629, Feb. 16, 1994), as amended, FEMA 
incorporates environmental justice into its policies and programs. 
Executive Order 12898 requires each Federal agency to conduct its 
programs, policies, and activities that substantially affect human 
health or the environment, in a manner that ensures that those 
programs, policies, and activities do not have the effect of excluding 
persons from participation in programs, denying persons the benefits of 
programs, or subjecting persons to discrimination because of race, 
color, or national origin. FEMA has incorporated environmental justice 
into its programs, policies, and activities, as well as this 
rulemaking. This proposed rulemaking contains provisions that ensure 
that FEMA's activities will not have a disproportionately high or 
adverse effect on human health or the environment or subject persons to 
discrimination because of race, color, or national origin.
    The purpose of this rule is to implement a debris-related Public 
Assistance Pilot Program procedure. This rule reimburses straight- or 
regular time wages for the permanent employees of Public Assistance 
applicants while they perform disaster-related debris and wreckage 
removal activities related to Hurricane Sandy for a period of 30 
consecutive calendar days. Reimbursing straight- or regular time for an 
applicant's permanent employees who perform debris removal work will 
provide an incentive for applicants to complete debris removal work 
themselves rather than entering into contracts to perform the work. 
Removing debris expeditiously provides value to the American people by 
creating safer communities and reducing loss of life and property, 
enables communities to recover more rapidly from disasters, and lessens 
the financial impact of disasters on individuals, the United States 
Department of the Treasury, State, local, and Tribal communities.
    No action that FEMA can anticipate under this rule will have a 
disproportionately high and adverse human health or environmental 
effect on any segment of the population. Accordingly, the requirements 
of Executive Order 12898 do not apply to this rule.

F. Executive Order 13175, Consultation and Coordination With Indian 
Tribal Governments

    FEMA has reviewed this rule under Executive Order 13175 
``Consultation and Coordination with Indian Tribal Governments'' (65 FR 
67249, Nov. 9, 2000). Under Executive Order 13175, FEMA may not issue a 
regulation that has Tribal implications, that imposes substantial 
direct compliance costs on Indian Tribal governments, and that is not 
required by statute. In reviewing this rule, FEMA finds that because 
Indian Tribal governments are potentially eligible applicants under the 
Public Assistance Program, this rule may impact Indian Tribal 
governments. However, this rule does not have ``tribal implications'' 
as defined in the Executive Order. Eligibility to receive reimbursement 
for force account labor for debris removal operations will not have a 
substantial direct effect on one or more Indian Tribes, on the 
relationship between the Federal Government and Indian Tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian Tribes. This rule does not impose substantial 
direct compliance costs on Indian Tribal governments nor does it 
preempt tribal law, impair treaty rights nor limit the self-governing 
powers of Indian Tribal governments.

G. Regulatory Flexibility Act Statement

    Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612, and 
section 213(a) of the Small Business Regulatory Enforcement Fairness 
Act of 1996, 5 U.S.C. 601 note, agencies must consider the impact of 
their rulemakings on ``small entities'' (small businesses, small 
organizations and local governments). The term ``small entities'' 
comprises small businesses, not-for-profit organizations that are 
independently owned and operated and are not dominant in their fields, 
and governmental jurisdictions with populations of less than 50,000. 
This rule did not require a notice of proposed rulemaking and therefore 
is exempt from the requirements of the RFA.

H. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1501 et 
seq., requires each Federal agency, to the extent permitted by law, to 
prepare a written assessment of the effects of any Federal mandate in a 
proposed or final agency rule that may result in the expenditure by 
State, local, and Tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any one year. UMRA exempts from its definition of 
``Federal intergovernmental mandate'' regulations that establish 
conditions of Federal assistance or provide for emergency assistance or 
relief at the request of any State, local, or Tribal government. 
Therefore, this rule is not an unfunded Federal mandate under that Act.

I. Executive Order 12988, Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, ``Civil Justice Reform'' (61 FR 4729, Feb. 7, 
1996), to minimize litigation, eliminate ambiguity, and reduce burden.

J. Executive Order 12630, Governmental Actions and Interference With 
Constitutionally Protected Property Rights

    FEMA has reviewed this rule under Executive Order 12630, 
``Governmental Actions and Interference with Constitutionally Protected 
Property Rights'' (53 FR 8859, Mar. 18, 1988) as supplemented by 
Executive Order 13406, ``Protecting the Property Rights of the American 
People'' (71 FR 36973, June 28, 2006). Sections 403(a)(3)(A) and 407 of 
the Stafford Act, 42 U.S.C. 5170b and 5173, respectively, provide FEMA 
authority to fund debris removal from private property provided that 
the State or local government arranges an unconditional authorization 
for removal of the debris, and agrees to indemnify the Federal 
government against any claim arising from the removal. The regulations 
implementing Sections 403 and 407 of the Stafford Act at 44 CFR 206.224 
establish the requirement that debris removal be in the ``public 
interest'' in order to be eligible for reimbursement. Generally, debris 
removal from private property following a disaster is the 
responsibility of the property owner. However, large-scale disasters 
may deposit enormous quantities of debris on private property over a 
large area resulting in widespread immediate threats to the public-at-
large. In these cases, the State or local government may need to enter 
private property to remove debris to: Eliminate immediate threats to 
life, public health, and safety; eliminate immediate threats of 
significant damage to improved property; or ensure economic recovery

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of the affected community to the benefit of the community-at-large. In 
these situations, debris removal from private property may be 
considered to be in the public interest and thus may be eligible for 
reimbursement under the Public Assistance Program. See 44 CFR 
206.224(b). FEMA will work with States affected by a disaster to 
designate those areas where the debris is so widespread that removal of 
the debris from private property is in the ``public interest'' pursuant 
to 44 CFR 206.224, and thus is eligible for FEMA Public Assistance 
reimbursement on a case-by-case basis. This rule will not affect a 
taking of private property or otherwise have taking implications under 
Executive Order 12630.

K. Congressional Review of Agency Rulemaking

    FEMA is sending this rule to Congress and to the Government 
Accountability Office pursuant to the Congressional Review of Agency 
Rulemaking Act (Congressional Review Act)(CRA), Public Law 104-121, 110 
Stat. 873 (March 29, 1996) (5 U.S.C. 801 et seq). This rule is not a 
``major rule'' within the meaning of the CRA.

List of Subjects in 44 CFR Part 206

    Administrative practice and procedure, Coastal zone, Community 
facilities, Disaster assistance, Fire prevention, Grant programs-
housing and community development, Housing, Insurance, 
Intergovernmental relations, Loan programs-housing and community 
development, Natural resources, Penalties, Reporting and recordkeeping 
requirements.

PART 206--FEDERAL DISASTER ASSISTANCE

    Accordingly, 44 CFR 206.228 of the interim final rule published on 
November 9, 2012 (77 FR 67285) is adopted as a final rule without 
change.

    Dated: August 1, 2014.
W. Craig Fugate,
Administrator, Federal Emergency Management Agency.
[FR Doc. 2014-18709 Filed 8-6-14; 8:45 am]
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