[Federal Register Volume 89, Number 78 (Monday, April 22, 2024)]
[Proposed Rules]
[Pages 29277-29281]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-08442]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2024-0142; FRL-11848-01-R9]
Air Plan Approval; California; Antelope Valley Air Quality
Management District and Mojave Desert Air Quality Management District
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve revisions to the Antelope Valley Air Quality Management
District (AVAQMD) and the Mojave Desert Air Quality Management District
(MDAQMD) portions of the California State Implementation Plan (SIP)
concerning rules submitted to address section 185 of the Clean Air Act
(CAA or the Act) with respect to the 1979 1-hour ozone National Ambient
Air Quality Standards (NAAQS or standard). We are proposing action on
these local rules that were submitted as equivalent alternatives to a
statutory section 185 program. We are taking comments on this proposal
and plan to follow with a final action.
DATES: Comments must be received on or before May 22, 2024.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2024-0142 at http://www.regulations.gov. For comments submitted at
Regulations.gov, follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
Regulations.gov. The EPA may publish any comment received to its public
docket. Do not submit electronically any information you consider to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Multimedia submissions (audio,
video, etc.) must be accompanied by a written comment. The written
comment is considered the official comment and should include
discussion of all points you wish to make. The EPA will generally not
consider comments or comment contents located outside of the primary
submission (i.e., on the web, cloud, or other file sharing system). For
additional submission methods, please contact the person identified in
the FOR FURTHER INFORMATION CONTACT section. For the full EPA public
comment policy, information about CBI or multimedia submissions, and
general guidance on making effective comments, please visit http://www.epa.gov/dockets/commenting-epa-dockets. 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: Donnique Sherman, EPA Region IX, 75
Hawthorne St., San Francisco, CA 94105. By phone: (415) 947-4129 or by
email at [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,''
and ``our'' refer to the EPA.
Table of Contents
I. Background
A. Section 185 Fees
B. Mojave Desert AQMD and Antelope Valley AQMD
II. The State's Submittal
A. What rules did the State submit?
B. Are there other versions of these rules?
C. What is the purpose of the submitted rules?
III. EPA's Evaluation and Action
A. How is the EPA evaluating these rules?
B. Do these rules meet the evaluation criteria?
i. Addressing September 29, 2022 Action (87 FR 59021)
Deficiencies
ii. Evaluation of MDAQMD Rule 315 and AVAQMD Rule 315
Alternative Section 185 Fee Equivalent Programs
C. Proposed Action and Public Comment
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews
I. Background
A. Section 185 Fees
Under sections 182(d)(3), (e), (f) and 185 of the Act, states with
ozone nonattainment areas classified as Severe or Extreme are required
to submit a revision to the SIP that would require
[[Page 29278]]
major stationary sources of VOC or NOX to pay a fee for each
ton of VOC or NOX emitted in excess of 80% of baseline
emissions.\1\ Under section 185(a) of the Act, the SIP revision must
provide that the fees be paid if the area to which the SIP revision
applies has failed to attain the primary NAAQS by the applicable
attainment date. A source's baseline emissions are its actual emissions
during the applicable attainment year. The fee rate is $5,000 per ton
in 1990 dollars, which must be adjusted for inflation based on the
Consumer Price Index (CPI). More information on CAA section 185 is
provided in our technical support document (TSD).
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\1\ VOC help produce ground-level ozone and smog, which harm
human health and the environment. NOX helps produce
ground-level ozone, smog and particulate matter, which harm human
health and the environment.
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B. Mojave Desert AQMD and Antelope Valley AQMD
The Southeast Desert Modified Air Quality Management Area (AQMA) is
classified as a ``Severe-17'' nonattainment area for the 1979 1-hour
ozone standard.\2\ Therefore, the AQMA is subject to the CAA section
182(d)(3) requirement to submit a plan revision which includes the
provisions required under section 185 of the Act. The MDAQMD and AVAQMD
regulate portions of the Southeast Desert Modified AQMA and must
therefore include a section 185 program for this NAAQS in their
respective portions of the California SIP.
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\2\ 40 CFR 81.305.
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II. The State's Submittal
A. What rules did the State submit?
Table 1 lists the rules proposed for approval with the dates that
they were adopted by the local agencies and submitted by the California
Air Resources Board (CARB).
Table 1--Submitted Rules
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Local agency Rule No. Rule title Amended Submitted
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AVAQMD............................ 315 Federal Clean Air Act 11/21/23 02/14/24
Section 185 Penalty.
MDAQMD............................ 315 Federal Clean Air Act 02/27/23 05/11/23
Section 185 Penalty.
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On March 13, 2024, the EPA determined that the submittal for AVAQMD
Rule 315 met the completeness criteria in 40 CFR part 51 Appendix V,
which must be met before formal EPA review.
On October 11, 2023, the submittal for MDAQMD Rule 315 was deemed
by operation of law to meet the completeness criteria in 40 CFR part 51
Appendix V.
B. Are there other versions of these rules?
There are no previous versions of AVAQMD Rule 315 and MDAQMD Rule
315 in the SIP. However, on September 29, 2022, EPA disapproved
previous submitted versions of these rules due to deficiencies that are
discussed in section III. B.
C. What is the purpose of the submitted rules?
Under sections 182(d)(3), (e), (f) and 185 of the Act, states with
ozone nonattainment areas classified as Severe or Extreme are required
to submit a SIP revision that requires major stationary sources of
volatile organic compounds (VOC) or oxides of nitrogen (NOX)
emissions in the area to pay a fee if the area fails to attain the
standard by the attainment date. The required SIP revision must provide
for annual payment of the fees, computed in accordance with section
185(b).
The purpose of AVAQMD Rule 315 and MDAQMD Rule 315 is to satisfy
the requirements of sections 182(d)(3) and 185 of the Act by utilizing
an equivalency approach consistent with the principles of section
172(e) of the Act. Under these rules, the AVAQMD and the MDAQMD will
track, calculate, analyze, and report on expenditures designed to
result in VOC or NOX reductions within the Districts to
implement an alternative program that is not less stringent than a
statutory CAA section 185 fee program. The rules include calculation of
the CAA section 185 fee obligation, establishment of a CAA section 185
equivalency ``Tracking Account,'' an annual demonstration of
equivalency, reporting to the CARB and the EPA, and a provision
requiring major sources to pay fees directly in the event the area
fails to establish equivalency. The ``Tracking Account'' would include
funds from qualified programs that are surplus to the SIP and designed
to result in direct reductions or facilitate future reductions of VOC
or NOX emissions, as approved by the EPA.
III. EPA's Evaluation and Action
A. How is the EPA evaluating these rules?
SIP rules must be enforceable (see CAA section 110(a)(2)) and must
not interfere with applicable requirements concerning attainment and
reasonable further progress or other CAA requirements (see CAA section
110(l)). The EPA is also evaluating these rules for consistency with
the statutory requirements of CAA section 185. Since the rules allow
for equivalent alternative programs to meet the CAA section 185
obligation for the 1-hour ozone NAAQS, they must be consistent with the
principles of CAA section 172(e) and must be ``not less stringent''
than the statutory section 185 program.
Guidance and policy documents that we use to evaluate
enforceability, revision/relaxation and rule stringency requirements
for the applicable criteria pollutants include the following:
1. ``State Implementation Plans; General Preamble for the
Implementation of Title I of the Clean Air Act Amendments of 1990,'' 57
FR 13498 (April 16, 1992); 57 FR 18070 (April 28, 1992).
2. ``Issues Relating to VOC Regulation Cutpoints, Deficiencies, and
Deviations,'' EPA, May 25, 1988 (the Bluebook, revised January 11,
1990).
3. ``Guidance Document for Correcting Common VOC & Other Rule
Deficiencies,'' EPA Region 9, August 21, 2001 (the Little Bluebook).
B. Do these rules meet the evaluation criteria?
AVAQMD Rule 315 and MDAQMD Rule 315 meet CAA requirements and are
consistent with relevant guidance regarding enforceability, SIP
revisions, and section 185. Because we previously disapproved an
earlier version of these rules, we address the deficiencies identified
in that action, and the ways that the Districts rectified them, and
then examine the alternative equivalent program as a whole in the
context of the section 172(e) requirement that the program be ``not
less stringent'' than a statutory program. The TSD has more information
on our evaluation.\3\
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\3\ See TSD subsection ``a. Summary of Evaluation Criteria''.
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[[Page 29279]]
i. Addressing September 29, 2022 Action (87 FR 59021) Deficiencies
On December 14, 2011, the CARB submitted AVAQMD Rule 315 and MDAQMD
Rule 315 to satisfy the requirements of sections 182(d)(3) and 185 of
the Act by utilizing an equivalency approach consistent with the
principles of section 172(e) of the Act. In our September 29, 2022
action (87 FR 59021), we found that these rules were largely consistent
with general CAA requirements regarding SIP submissions. However, we
could not approve the rules because we found that they contained the
following summarized deficiencies:
1. There was no justification for the method chosen to calculate
alternate baseline emissions for facilities with emissions that are
irregular, cyclical, or otherwise vary significantly.
2. The rules establish an area-wide equivalency ``Tracking
Account'' across AVAQMD, MDAQMD, and South Coast Air Quality Management
District (SCAQMD) but SCAQMD did not have a rule that contained the
same provisions, rendering the rule unenforceable.
3. The formula for calculation for the penalty fee did not properly
reflect the inflation adjustment based on the Consumer Price index.
4. AVAQMD Rule 315 defined the term ``Major Facility'' as defined
in ``District Rule 1301'' but the current SIP-approved Rule 1301 for
AVAQMD did not contain a definition of ``Major Facility.''
On May 11, 2023, the CARB submitted MDAQMD Rule 315 (amended
February 27, 2023) and on February 14, 2024, the CARB submitted AVAQMD
Rule 315 (amended November 21, 2023), to correct the deficiencies of
the 2022 disapproval and to satisfy the requirements of CAA sections
182(d)(3) and 185 by utilizing a fee equivalency approach consistent
with the principles of CAA section 172(e). Summarized below is how each
deficiency was addressed by MDAQMD and AVAQMD:
1. MDAQMD and AVAQMD removed section (D)(1)(d), the section that
provided for alternate baseline emissions for facilities with emissions
that are irregular, cyclical, or otherwise vary significantly.
2. AVAQMD and MDAQMD removed SCAQMD from the accounting system.
Accordingly, the two rules only rely on each other, and are enforceable
without action from the SCAQMD to ensure that all applicable sources in
the AVAQMD and MDAQMD are accounted for. In addition, Section (E)(2)
now requires the Air Pollution Control Officer (APCO) for each district
to provide the accounting to the other district, rather than to request
it from the other district.
3. The formula in section (D)(2)(a) was corrected to add (1+C), to
properly reflect the inflation adjustment based on the Consumer Price
index.
4. AVAQMD removed references to AVAQMD Rule 1301 in Rule 315, and
updated the definition to include that a Major Facility is a Facility
that emits or has the Potential to Emit NOX or VOC in an
amount greater than or equal to 25 tons per year. This is consistent
with the threshold for major stationary sources for Severe ozone
nonattainment areas, as provided in CAA section 182(d).
ii. Evaluation of MDAQMD Rule 315 and AVAQMD Rule 315 Alternative
Section 185 Fee Equivalent Programs
The CAA section 185 fee program requirements apply to ozone
nonattainment areas classified as Severe or Extreme that fail to attain
by the required attainment date. It requires each major stationary
source of VOC located in an area that fails to attain by its attainment
date to pay a fee to the state for each ton of VOC the source emits in
excess of 80 percent of a baseline amount. CAA section 182(f) extends
the application of this provision to major stationary sources of
NOX. In 1990, the CAA set the fee as $5,000 per ton of VOC
and NOX emitted, which is adjusted for inflation, based on
the Consumer Price Index, on an annual basis. More information on CAA
section 185 is provided in our TSD.
On January 5, 2010, the EPA issued the memo ``Guidance on
Developing Fee Programs Required by Clean Air Act Section 185 for the
1-hour Ozone NAAQS.'' \4\ The guidance discussed options for the EPA
approval of SIPs that included an equivalent alternative program to the
section 185 fee program specified in the CAA when addressing anti-
backsliding for a revoked ozone NAAQS under the principles of section
172(e). Section 172(e) requires the EPA to develop regulations to
ensure that controls in a nonattainment area are ``not less stringent''
than those that applied to the area before the EPA revised a NAAQS to
make it less stringent. Although section 172(e) does not directly apply
where the EPA has strengthened the NAAQS, as it did in 1997, 2008, and
2015, the EPA has applied the principles in section 172(e) when
revoking less stringent ozone standards. The EPA allows a state to
adopt an alternative to CAA section 185 if the state demonstrates that
the proposed alternative program is ``not less stringent'' than the
direct application of CAA section 185. The EPA has previously stated
that one way to demonstrate this is to show that the alternative
program provides equivalent or greater fees and/or emissions reductions
directly attributable to the application of CAA section 185. Although
the 2010 guidance was vacated and remanded by the D.C. Circuit on
procedural grounds, the court did not prohibit alternative programs,
stating ``neither the statute nor our case law obviously precludes that
alternative'' (NRDC v. EPA, 643 F.3d 311 (D.C. Cir. 2011)). The EPA has
approved alternative equivalent section 185 fee programs in California
for the San Joaquin Valley (77 FR, 50021, August 20, 2012) and the
SCAQMD covering both the Los Angeles-South Coast Air Basin Area and the
portion of the Southeast Desert Modified Air Quality Management Area
that is regulated by SCAQMD (77 FR 74372, December 14, 2012) (upheld in
Natural Res. Def. Council v. EPA, 779 F.3d 1119 (9th Cir. 2015)). More
recently we approved an alternative 185 fee equivalent program for the
New York portion of the New York-Northern New Jersey-Long Island 1-hour
ozone nonattainment area (84 FR 12511, April 2, 2019), and the Houston-
Galveston-Brazoria area (85 FR 8411, February 14, 2020).
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\4\ See https://www.epa.gov/sites/production/files/2015-09/documents/1hour_ozone_nonattainment_guidance.pdf.
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The MDAQMD and the AVAQMD rules which allow for the equivalent
program: (1) calculate the amount of fees that major sources would pay
each year; (2) allow for offsetting the major source fees with fees
collected in the area for programs designed to result in emission
reductions within the District portion of the nonattainment area (NAA);
and (3) allow for major sources' fee obligations to be offset fully or
partially with surplus expenditures that are collected from these
programs. In order for expenditures to be creditable to the equivalency
tracking account, they must: be surplus to the SIP, have been certified
in writing by the APCO, the Executive Officer of CARB, and the USEPA as
being surplus to the SIP, and be designed to result in direct, or to
facilitate future, reductions in NOX or VOC emissions within
the district portions of the NAA. In the staff reports submitted along
with the rules, the MDAQMD and the AVAQMD stated that they intend to
credit expenditures from (1) the Carl Moyer Memorial Air Quality
Standards Attainment Program, (2) Assembly Bill 2766, (3) the Lawn &
[[Page 29280]]
Garden Replacement Program, and (4) Assembly Bill 923 (only in the
AVAQMD). In a letter dated February 22, 2024, the MDAQMD elaborated on
the qualified programs for Section 172(e) and demonstrated how the
programs would be evaluated using the 2020 fiscal year as an example,
and the AVAQMD provided a similar demonstration in its Rule 315
district staff report. The Carl Moyer Memorial Air Quality Standards
Attainment Program provides money to help fund the replacement of
engines and other equipment with cleaner versions. Assembly Bill 2766
provides money to assist in public transit and provides monetary
incentives to vehicle owners to retire their older polluting vehicles.
The Lawn & Garden Replacement Program provides money for replacing lawn
and garden equipment with zero emissions alternatives. Assembly Bill
923 collects additional revenue to remediate the air pollution harms
caused by motor vehicles under the Carl Moyer program, the new
purchase, retrofit, repower, or add-on of equipment for previously
unregulated agricultural sources, the new purchase of school buses
pursuant to the Lower-Emission School Bus Program, and an accelerated
vehicle retirement or repair program. These programs all lead to the
replacement of older dirtier equipment with newer, lower-emitting
equipment, providing emission reductions in the MDAQMD and the AVAQMD
portions of the nonattainment area. We evaluated these programs in the
TSD for this action and propose to find that they are surplus to the
SIP.\5\
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\5\ See section ``Criteria for Expenditures from Qualified
Programs'' in the TSD for this action.
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Based on our evaluation we are proposing to find that the
alternative equivalent program established by the MDAQMD and AVAQMD
rules are equivalent section 185 fee programs under section 172(e), as
they collect greater or equivalent fees than would be collected under a
statutory section 185 fee program for each area. It also requires that
expenditures from qualified programs result in direct reductions or
facilitate future reductions of VOC or NOX emissions. In
contrast, section 185 of the Act requires states to assess fees on
stationary sources but does not require that the fees be used for
activities beneficial in reducing ozone formation. We believe this
requirement in Rule 315 to use the surplus funds for reducing ozone
formation will result in further progress toward attainment. A detailed
evaluation of the MDAQMD and AVAQMD section 185 alternative fee
programs is included in the TSD for this action.
C. Proposed Action and Public Comment
As authorized in section 110(k)(3) of the Act, the EPA proposes to
approve the submitted rules because they fulfill all relevant
requirements. We will accept comments from the public on this proposal
until May 22, 2024. If we take final action to approve the submitted
rules, our final action will incorporate these rules into the federally
enforceable SIP and stop all sanction clocks associated with our
September 29, 2022 disapproval (87 FR 59021). It will also address the
EPA's obligation to promulgate a FIP arising from our previous finding
that the State of California has failed to submit the required CAA
section 185 SIP revisions for the 1-hour ozone NAAQS for the Southeast
Desert Modified Air Quality Management Area (75 FR 232).
IV. Incorporation by Reference
In this rule, the EPA is proposing to include in a final EPA rule
regulatory text that includes incorporation by reference. In accordance
with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by
reference MDAQMD Rule 315, Federal Clean Air Act Section 185 Penalty,
amended on February 27, 2023, and AVAQMD Rule 315, Federal Clean Air
Act Section 185 Penalty, amended on November 21, 2023, described in
section II.C. The EPA has made, and will continue to make, these
materials available through https://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 proposed action merely proposes to approve state law
as meeting federal requirements and does not impose additional
requirements beyond those imposed by state law. For that reason, this
proposed 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 14094 (88 FR 21879, April 11, 2023);
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 subject to Executive Order 13045 (62 FR 19885,
April 23, 1997) because it proposes to approve a state program;
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001); and
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.
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).
Executive Order 12898 (Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR 7629,
February 16, 1994) directs Federal agencies to identify and address
``disproportionately high and adverse human health or environmental
effects'' of their actions on minority populations and low-income
populations to the greatest extent practicable and permitted by law.
The EPA defines environmental justice (EJ) as ``the fair treatment and
meaningful involvement of all people regardless of race, color,
national origin, or income with respect to the development,
implementation, and enforcement of environmental laws, regulations, and
policies.'' The EPA further defines the term fair treatment to mean
that ``no group of people should bear a disproportionate burden of
environmental harms and risks, including those resulting from the
negative environmental consequences of
[[Page 29281]]
industrial, governmental, and commercial operations or programs and
policies.''
The air agencies evaluated environmental justice considerations as
part of its SIP submittal even though the CAA and applicable
implementing regulations neither prohibit nor require an evaluation.
The analysis was done for the purpose of providing additional context
and information about this rulemaking to the public, not as a basis of
the action. The EPA has also included an environmental justice analysis
in the TSD for this action, utilizing the EPA's environmental justice
screening and mapping tool (``EJSCREEN'') to identify environmental
burdens and susceptible populations in the Southeast Desert Modified
AQMA. The results of this analysis are being provided for informational
and transparency purposes. EPA is taking action under the CAA on bases
independent of the air agencies' and the EPA's evaluation of
environmental justice. Due to the nature of the action being taken
here, this action is expected to have a positive impact on the air
quality of the affected area. In addition, there is no information in
the record upon which this decision is based that is inconsistent with
the stated goal of E.O. 12898 of achieving environmental justice for
people of color, low-income populations, and Indigenous peoples.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen oxides, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: April 16, 2024.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2024-08442 Filed 4-19-24; 8:45 am]
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