[Federal Register Volume 87, Number 45 (Tuesday, March 8, 2022)]
[Rules and Regulations]
[Pages 12866-12869]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-04761]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2021-0296; FRL-9386-01-R9]


Air Plan Approval; California; Los Angeles--South Coast Air Basin

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to approve a revision to the South Coast Air Quality Management 
District (SCAQMD or ``District'') portion of the California State 
Implementation Plan (SIP). We are also determining that the submitted 
SIP revision fulfills the District's and the State's commitment to 
adopt and submit a specific enforceable contingency measure to address 
Clean Air Act (CAA or ``Act'') requirements for the 2006 24-hour and 
2012 annual national ambient air quality standards (NAAQS) for fine 
particulate matter (PM2.5) in the South Coast air basin.

DATES: This rule is effective on April 7, 2022.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R09-OAR-2021-0296. All documents in the docket are 
listed on the https://www.regulations.gov website. Although listed in 
the index, some information is not publicly available, e.g., 
Confidential Business Information (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 through https://www.regulations.gov, or please 
contact the person identified in the FOR FURTHER INFORMATION CONTACT 
section for additional availability information. If you need assistance 
in a language other than English or if you are a person with 
disabilities who needs a reasonable accommodation at no cost to you, 
please contact the person identified in the FOR FURTHER INFORMATION 
CONTACT section.

FOR FURTHER INFORMATION CONTACT: Ginger Vagenas, EPA Region IX, 75 
Hawthorne Street, San Francisco, CA 94105. By phone at (415) 972-3964 
or by email at [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,'' 
and ``our'' refer to the EPA.

Table of Contents

I. Proposed Action
II. Public Comments and EPA Responses
III. Final Action
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews

I. Proposed Action

    On May 20, 2021, the EPA proposed to approve all but paragraphs (g) 
and (k) of the following rule into the California SIP.\1\
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    \1\ 86 FR 27346.

                                     Table 1--Rule Addressed by EPA Proposal
----------------------------------------------------------------------------------------------------------------
     Local agency          Rule No.            Rule                  Amended                   Submitted
----------------------------------------------------------------------------------------------------------------
SCAQMD................             445  Wood-Burning       October 27, 2020..........  October 29, 2020.
                                         Devices (except
                                         paragraphs (g)
                                         and (k)).
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[[Page 12867]]

    We proposed to approve this rule, excluding paragraph (g) (Ozone 
Contingency Measures) and paragraph (k) (Penalties), based on a 
determination that it complies with CAA requirements for enforceability 
and SIP revisions in CAA sections 110(a)(2) and 110(l) and fulfills 
commitments that the State and District previously submitted to meet 
the requirements of CAA section 110(k)(4). Our proposed action contains 
more information on the rule and our evaluation.

II. Public Comments and EPA Responses

    The EPA's proposed action provided a 30-day public comment period. 
During this period, we received one comment letter from the Center for 
Biological Diversity (CBD). We respond to CBD's comments below.
    Comment 1: CBD stated that the EPA should consider the air 
pollution impacts of the alternative sources of heat people use when a 
curtailment is in effect. CBD claimed that ``it is arbitrary to assume 
that people will simply go without heat when'' a curtailment for wood 
burning devices is in effect and that ``[m]ost likely people will use 
very inefficient heat devices like electric or propane space heaters'' 
as a replacement source of heat. CBD contended that the EPA ``must 
consider the PM2.5 emissions this substitute heating will 
cause when qualifying the PM2.5 reductions from this 
contingency measure'' and must rely on the ``net savings'' (i.e., the 
emissions reductions from wood stove curtailment minus the emissions 
increase from replacement heat) in calculating the emissions reductions 
from the contingency measure.
    Response 1: These comments are outside the scope of this rule 
because they pertain to the quantification of PM2.5 
emissions reductions to be achieved by the submitted contingency 
measure.\2\ We are not reevaluating in this action our bases for 
concluding that Rule 445, if revised consistent with the District's 
commitments, would satisfy the contingency measure requirements in CAA 
section 172(c)(9) and 40 CFR 51.1014 for the 2006 and 2012 
PM2.5 NAAQS, as described in our July 2, 2020 proposal on 
the 2016 PM2.5 Plan. As we explained in our May 20, 2021 
proposed rulemaking, our action is limited to approving Rule 445, as 
amended October 27, 2020, into the SIP based on our conclusion that the 
amended rule meets the requirements for enforceability and SIP 
revisions in CAA sections 110(a)(2) and 110(l) and fulfills the State 
and District commitments that provided the basis for our November 9, 
2020 final rule conditionally approving the contingency measure element 
of the 2016 PM2.5 Plan.\3\ Comments pertaining to the 
quantification of emissions reductions to be achieved by Rule 445 for 
PM2.5 contingency measure purposes are, therefore, outside 
the scope of this rule.
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    \2\ We assume the commenter's statement that the EPA must 
consider the PM2.5 emissions that substitute heating will 
cause ``when qualifying the PM2.5 reductions from this 
contingency measure'' was intended to refer to the quantification of 
the emission reductions to be achieved by the measure.
    \3\ 86 FR 27346, 27348. We note that the Ninth Circuit Court of 
Appeals recently remanded an EPA rulemaking that relied on a 
rationale and interpretation of the contingency measure requirement 
in CAA section 172(c)(9) that the court found to be arbitrary and 
capricious. Ass'n of Irritated Residents v. EPA, 10 F.4th 937 (9th 
Cir. August 26, 2021). The EPA is currently reviewing this decision, 
evaluating our November 9, 2020 final action conditionally approving 
the contingency measure element of the 2016 PM2.5 Plan, 
and considering what remedial steps are appropriate to comply with 
CAA requirements in light of the decision.
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    As we explained in our proposed rulemaking, we previously approved 
portions of California's SIP submission to address the CAA's 
``Moderate'' area requirements for the 2012 PM2.5 NAAQS in 
the South Coast nonattainment area (``2016 PM2.5 Plan''). As 
part of that action, the EPA conditionally approved the contingency 
measure element of the 2016 PM2.5 Plan as meeting the 
applicable requirements of CAA section 172(c)(9) and 40 CFR 51.1014 for 
the 2006 PM2.5 NAAQS and the 2012 PM2.5 NAAQS.\4\ 
Our conditional approval of the contingency measure element of the 2016 
PM2.5 Plan for these NAAQS was based on specific commitments 
by the District and CARB to adopt and submit, within a specified 
timeframe, revisions to District Rule 445 (``Wood Burning Devices''), 
to lower the rule's mandatory curtailment threshold by specified 
amounts upon any of the four EPA determinations (i.e., ``findings of 
failure'') listed in 40 CFR 51.1014(a).\5\ Our proposed rulemaking to 
approve and conditionally approve the 2016 PM2.5 Plan for 
purposes of these NAAQS, which published July 2, 2020, provided our 
evaluation of the District's quantification of the emissions reductions 
to be achieved by the specified revisions to Rule 445, and our 
rationale for concluding that the State's timely submission of revised 
Rule 445 would satisfy the contingency measure requirements in CAA 
section 172(c)(9) and 40 CFR 51.1014 for the 2006 and 2012 
PM2.5 NAAQS.\6\ We received no public comments that were 
germane to our proposal, and on November 9, 2020, we finalized this 
proposal without change.\7\
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    \4\ 86 FR 27346, 27347 (citing prior final action on 2016 
PM2.5 Plan at 85 FR 71264 (November 9, 2020)).
    \5\ 86 FR 27346, 27348 (May 20, 2021).
    \6\ 85 FR 40026, 40049-40050 (July 2, 2020).
    \7\ 85 FR 71264, 71266 (November 9, 2020).
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    The commenter's concern appears to rest on the assumption that 
significant numbers of residents using wood-burning devices as their 
sole source of residential heat \8\ will be compelled by the rule to 
switch to more inefficient sources of residential heat. We have no 
information indicating that the SIP revisions that we are approving 
will result in such a large scale shift.\9\ Rule 445 entirely exempts 
wood-burning devices used as the sole source of heat in a residential 
or commercial property and wood-burning devices used in low-income 
households from its curtailment provisions.\10\ Additionally, according 
to the District, the additional number of No-Burn days resulting from 
the June 5, 2020 amendments is expected to be small (about 12 days) 
during the wood-burning season, and the cost impacts on the general 
public are also expected to be minimal as wood-burning devices in the 
South Coast air basin are primarily used ``for aesthetic purposes.'' 
\11\
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    \8\ ``Sole source of heat'' is defined in Rule 445 as the only 
permanent source of heat that is capable of meeting the space 
heating needs of a household.
    \9\ As a separate matter, we acknowledge and support 
California's policy shift toward the usage of higher efficiency and 
lower carbon technologies, such as heat pumps.
    \10\ Rule 445 (as amended October 27, 2020), subdivision (i) 
(exempting, inter alia, ``[r]esidential or commercial properties 
where a wood-burning device is the sole source of heat'' and any 
``low income household'' from the mandatory curtailment provisions 
in subdivisions (e), (f), and (g)).
    \11\ SCAQMD, ``Final Staff Report, Proposed Amended Rule 445--
Wood-Burning Devices,'' June 5, 2020, 19.
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    Comment 2: CBD stated that the EPA must consider, in its Clean Air 
Act section 110(l) analysis, ``all of the air pollution from the 
replacement heating'' that people will use as a result of the wood-
burning curtailment provisions in Rule 445. For example, the commenter 
stated, ``will the increased electric demand from electric replacement 
heat cause or contribute to additional NOX NAAQS violations 
near the fossil fuel burning peaking plants meeting this increased 
demand.'' The commenter further asserted that ``[r]elying on monitoring 
data to say [there] is no NOX problem would be arbitrary as 
the NOX ambient monitoring network is woefully inadequate to 
determine if peaking fossil plants are causing NOX [NAAQS] 
violations.''
    Response 2: We disagree with the commenter's suggestion that, for

[[Page 12868]]

purposes of the limited revisions to Rule 445 at issue in this action, 
CAA section 110(l) requires the EPA to consider all of the air 
pollution that might result from use of replacement heating sources due 
to implementation of all of the curtailment provisions in Rule 445. 
Section 110(l) of the CAA prohibits the EPA from approving a SIP 
revision ``if the revision would interfere with any applicable 
requirement concerning attainment and reasonable further progress'' or 
any other applicable requirement of the CAA. As we explained in our 
proposed rulemaking, the EPA approved an earlier version of Rule 445 
into the SIP on September 26, 2013.\12\ On June 5, 2020, the District 
amended Rule 445 to add lower mandatory wood-burning curtailment 
provisions in subdivision (f) to be implemented as PM2.5 
contingency measures upon a determination by the EPA that any of the 
four failures listed under 40 CFR 51.1014(a) has occurred.\13\ The June 
5, 2020 amendments to Rule 445 also extended the geographic scope of 
the mandatory wood-burning curtailment provisions to the entire South 
Coast air basin on any day for which the PM2.5 forecast at a 
``source receptor area'' (SRA) in the air basin exceeds the forecast 
threshold.\14\ The District adopted further amendments pertaining to 
ozone contingency measures on October 27, 2020, which the EPA is not 
acting on at this time, but retained the Rule 445 amendments adopted 
June 5, 2020, unchanged.\15\ Thus, the only SIP revisions that we are 
approving are those amended provisions of Rule 445 initially adopted on 
June 5, 2020, and retained in the October 27, 2020 amended rule--i.e., 
the new PM2.5 contingency measure provisions in subdivision 
(f) and the extension of the wood-burning curtailment provisions to 
apply basin-wide. Section 110(l) of the CAA requires the EPA to 
consider whether these particular SIP revisions would interfere with 
any applicable requirement concerning attainment and reasonable further 
progress or any other applicable requirement of the CAA; it does not 
require the EPA to consider all of the air pollution that may result 
from changes in behavior that may or may not be caused by the 
District's implementation of the rule as a whole.\16\
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    \12\ 78 FR 59249 (final rule approving Rule 445, as amended May 
3, 2013, into California SIP).
    \13\ 86 FR 27346, 27347-27348 (May 20, 2021).
    \14\ The SIP-approved version of Rule 445 (as amended May 3, 
2013) applied the wood-burning curtailment basin-wide only when the 
``source receptor area'' (SRA) where the PM2.5 forecast 
exceeded the forecast threshold also contained ``a monitoring 
station that has recorded a violation of the 2006 24-hour 
PM2.5 NAAQS for either of the two previous three-year 
design value periods.'' Rule 445 (as amended May 3, 2013), 
subdivision (6)(B). In all other situations, the wood-burning 
curtailment applied only in specific SRAs. Id.
    \15\ The EPA is not acting at this time on the new provisions 
addressing ozone contingency measures in subdivision (g) of Rule 445 
that the District adopted on October 27, 2020. 86 FR 27346, 27347.
    \16\ We note also that implementation of revised Rule 445 is not 
likely to cause a largescale shift to inefficient heating devices 
given the exemptions in Rule 445. See Response 1.
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    The June 5, 2020 amendments to Rule 445 strengthen the SIP by 
lowering the forecast threshold by 1 microgram per meter cubed each 
time the PM2.5 contingency measure provisions in subdivision 
(f) are triggered and by prohibiting the use of wood-burning devices 
basin-wide, rather than only in specific SRAs, whenever the 
PM2.5 forecast at any SRA in the air basin exceeds the 
forecast threshold. The commenter provides no specific support for the 
claim that these strengthened aspects of Rule 445 will ``interfere with 
any applicable requirement concerning attainment and reasonable further 
progress'' or any other applicable requirement of the CAA. Given the 
incremental PM2.5 emissions reductions expected to result 
from the District's revisions to Rule 445, and the absence of any 
information in the record indicating that implementation of the revised 
rule will adversely affect air quality or otherwise interfere with CAA 
requirements with respect to the PM2.5 NAAQS, we find this 
SIP revision an improvement to the SIP for this area.
    The commenter's concern appears to relate not to the 
PM2.5 NAAQS, but rather to the NO2 NAAQS, and 
potential adverse consequences in the vicinity of electric generating 
units that could result from increased electricity generation due to 
these revisions to Rule 445. The commenter did not provide any support 
for the premise that these specific revisions to Rule 445 would 
materially elevate NOX emissions in the South Coast air 
basin or elsewhere, and the EPA does not anticipate that this would 
occur as a result of the additional wood-burning curtailment that may 
be required if the contingency measure provisions in Rule 445 are 
triggered in the future, given the exemptions in Rule 445. See Response 
1.
    Finally, comments about the adequacy of the NO2 ambient 
monitoring network in the South Coast air basin are also outside the 
scope of this action. As we explained in the proposed rulemaking, we 
evaluated Rule 445, as amended October 27, 2020, solely for purposes of 
determining whether it meets the requirements for enforceability and 
SIP revisions in CAA sections 110(a)(2) and 110(l) and determining 
whether the State and District fulfilled the commitments that provided 
the basis for our conditional approval of the contingency measure 
element of the 2016 PM2.5 Plan for purposes of the 
PM2.5 NAAQS.\17\ Comments about the NOX ambient 
monitoring network and potential violations of the NO2 
NAAQS, therefore, are not germane to this rule.
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    \17\ 86 FR 27346, 27348.
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    The EPA notes, however, that it has separately approved the 
District's 2020 annual network plan submitted to satisfy the 
requirements in 40 CFR part 58 pertaining to NO2 air quality 
monitors.\18\ Additionally, the EPA recently conducted a technical 
systems audit of the SCAQMD's ambient air quality monitoring program, 
including network management, field operations, quality assurance, and 
data management procedures, and found no deficiencies in the 
NO2 monitoring network.\19\
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    \18\ Letter dated October 28, 2020, from Gwen Yoshimura, EPA 
Region IX, to Dr. Matt Miyasato, SCAQMD.
    \19\ Letter dated March 17, 2021, from Elizabeth Adams, EPA, 
Region IX, to Dr. Matt Miyasato, SCAQMD, and EPA Region IX, 
``Technical Systems Audit of the Ambient Air Monitoring Program: 
South Coast Air Quality Management District June 1-5, 2020,'' March 
2021.
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III. Final Action

    No comments were submitted that change our assessment of the rule 
as described in our proposed action. Therefore, as authorized in 
section 110(k)(3) of the Act, the EPA is fully approving this rule, 
except paragraph (g) (Ozone Contingency Measures) and paragraph (k) 
(Penalties), into the California SIP. The October 27, 2020 version of 
Rule 445 will replace the previously approved version of this rule in 
the SIP. We have determined that the submitted SIP revision fulfills 
the District's and the State's commitment to adopt and submit a 
specific enforceable contingency measure to address CAA requirements 
for the 2006 24-hour fine PM2.5 NAAQS and the 2012 annual 
PM2.5 NAAQS in the South Coast air basin and, on that basis, 
we are converting our November 9, 2020 conditional approval to a full 
approval.

IV. Incorporation by Reference

    In this rule, the 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 South 
Coast Air Quality Management District rule described in the amendments 
to 40 CFR part 52 set forth below. The EPA has made, and will continue 
to make,

[[Page 12869]]

these documents available through www.regulations.gov and at the EPA 
Region IX Office (please contact the person identified in the FOR 
FURTHER INFORMATION CONTACT section of this preamble for more 
information).

V. Statutory and Executive Order Reviews

    Under the Clean Air Act, 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, the EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
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 Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     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 Clean Air Act; and
     Does not provide the 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, the SIP is not approved to apply on any Indian 
reservation land or in any other area where the EPA or an Indian tribe 
has demonstrated that a tribe has jurisdiction. In those areas of 
Indian country, the rule does not have tribal implications and will not 
impose substantial direct costs on tribal governments or preempt tribal 
law as specified by Executive Order 13175 (65 FR 67249, November 9, 
2000).
    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. The 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 Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by May 9, 2022. 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, Particulate matter, Reporting 
and recordkeeping requirements.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: March 2, 2022.
Martha Guzman Aceves,
Regional Administrator, Region IX.

    For the reasons stated in the preamble, the EPA amends 40 CFR part 
52 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 F--California

0
2. Section 52.220 is amended by adding paragraphs (c)(430)(i)(A)(3) and 
(c)(570), to read as follows:


Sec.  52.220  Identification of plan-in part.

* * * * *
    (c) * * *
    (430) * * *
    (i) * * *
    (A) * * *
    (3) Previously approved on September 26, 2013 in paragraph 
(c)(430)(i)(A)(2) of this section and now deleted with replacement in 
(c)(570)(i)(A)(1), Rule 445, ``Wood Burning Devices,'' adopted on May 
3, 2013.
* * * * *
    (570) An amended regulation for the following APCD was submitted on 
October 29, 2020 by the Governor's designee as an attachment to a 
letter dated October 29, 2020.
    (i) Incorporation by reference. (A) South Coast Air Quality 
Management District.
    (1) Rule 445, ``Wood-Burning Devices,'' amended on October 27, 
2020, except paragraph (g), ``Ozone Contingency Measures,'' and 
paragraph (k), ``Penalties.''
    (2) [Reserved]
    (B) [Reserved]
    (ii) [Reserved]


Sec.  52.248  [Amended]

0
3. Section 52.248 is amended by removing and reserving paragraph (k).

[FR Doc. 2022-04761 Filed 3-7-22; 8:45 am]
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