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[Federal Register Volume 80, Number 170 (Wednesday, September 2, 2015)]
[Proposed Rules]
[Pages 53033-53036]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-21567]

[[Page 53033]]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 91

[Docket No.: FAA-2015-3304; Notice No. 15-07]
RIN 2120-AK66

Temporary Flight Restrictions in the Proximity of Launch and 
Reentry Operations

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: This proposed rulemaking would expand the temporary flight 
restriction provisions for launch, reentry, and amateur rocket 
operations and make such temporary flight restrictions applicable to 
all aircraft--including non-U.S. registered aircraft. The FAA also 
proposes revised language for consistency with other temporary flight 
restriction provisions and commercial space regulations and 
definitions. This proposed action would enhance safety in the affected 
airspace and would improve the readability of temporary flight 
restriction requirements.

DATES: Send comments on or before November 2, 2015.

ADDRESSES: Send comments identified by docket number FAA-2015-3304 
using any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for sending your 
comments electronically.
     Mail: Send comments to Docket Operations, M-30; U.S. 
Department of Transportation (DOT), 1200 New Jersey Avenue SE., Room 
W12-140, West Building Ground Floor, Washington, DC 20590-0001.
     Hand Delivery or Courier: Take comments to Docket 
Operations in Room W12-140 of the West Building Ground Floor at 1200 
New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., 
Monday through Friday, except Federal holidays.
     Fax: Fax comments to Docket Operations at 202-493-2251.
    Privacy: In accordance with 5 U.S.C. 553(c), DOT solicits comments 
from the public to better inform its rulemaking process. DOT posts 
these comments, without edit, including any personal information the 
commenter provides, to www.regulations.gov, as described in the system 
of records notice (DOT/ALL-14 FDMS), which can be reviewed at 
www.dot.gov/privacy.
    Docket: Background documents or comments received may be read at 
http://www.regulations.gov at any time. Follow the online instructions 
for accessing the docket or go to the Docket Operations in Room W12-140 
of the West Building Ground Floor at 1200 New Jersey Avenue SE., 
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: For technical questions concerning 
this action, contact Paul Eure, Airspace Regulations Team, AJV-113, 
Federal Aviation Administration, 800 Independence Avenue SW., 
Washington, DC 20591; telephone (202) 267-8745; email 
paul.eure@faa.gov.
    For legal questions concerning this action, contact Robert Frenzel, 
Operations Law Branch, AGC-220, Federal Aviation Administration, 800 
Independence Avenue SW., Washington, DC 20591; telephone (202) 267-
3073; email Robert.Frenzel@faa.gov.

SUPPLEMENTARY INFORMATION: 

Authority for This Rulemaking

    The FAA's authority to issue rules on aviation safety is found in 
Title 49 of the United States Code. Subtitle I, Section 106, describes 
the authority of the FAA Administrator. Subtitle VII, Aviation 
Programs, describes in more detail the scope of the agency's authority.
    This rulemaking is promulgated under the authority described in 
Subtitle VII, Part A, Subpart I, Section 40103, Sovereignty and use of 
airspace, and Subpart III, Section 44701, General requirements. Under 
section 40103, the FAA is charged with prescribing regulations to 
ensure the safety of aircraft and the efficient use of the navigable 
airspace. Under section 44701, the FAA is charged with prescribing 
regulations to ensure safety in air commerce.
    This proposed regulation is within the scope of sections 40103 and 
44701 because restricting aircraft operations from the area in which 
launch, reentry, and amateur rocket operations occur supports aviation 
safety and the efficient use of navigable airspace.
    The Commercial Space Launch Act of 1984, as codified and amended at 
51 U.S.C. Subtitle V--Commercial Space Transportation, Ch. 509, 
Commercial Space Launch Activities, 51 U.S.C. 50901-50923 (Chapter 
509), authorizes the Department of Transportation and thus the FAA, 
through delegations, to oversee, license, and regulate commercial 
launch and reentry activities, and the operation of launch and reentry 
sites as carried out by U.S. citizens or within the United States. 51 
U.S.C. 50904, 50905. Chapter 509 directs the FAA to exercise this 
responsibility consistent with public health and safety, safety of 
property, and the national security and foreign policy interests of the 
United States. 51 U.S.C. 50905. The FAA is also responsible for 
encouraging, facilitating, and promoting commercial space launches by 
the private sector. 51 U.S.C. 50903.

I. Executive Summary

    14 CFR 91.143 authorizes the FAA to issue Notices to Airmen (NOTAM) 
prohibiting a person from operating any aircraft of U.S. registry in 
areas designated in the NOTAM for space flight operations. The FAA 
proposes to amend this provision to apply to all aircraft.
    At the time of the promulgation of Sec.  91.143, recovery 
operations were conducted outside of U.S. territorial boundaries, and 
therefore, the FAA could only restrict U.S. registered aircraft or 
aircraft flown by pilots using a FAA pilot certificate. This 
regulation, clarified in 1984, included launches (and potential 
emergency recovery operations) in support of the National Aeronautics 
and Space Administration (NASA) Space Shuttle program.
    However, the initial applicability of this regulation does not 
adequately address present day space launch and recovery operations 
that are increasingly conducted within the boundaries of U.S. 
territory. Therefore, the agency proposes to amend this rule to better 
address present day operations to ensure that all aircraft--not only 
U.S. registered aircraft or aircraft flown by pilots using a FAA pilot 
certificate--are restricted from operating in airspace designated for 
launch, reentry, or amateur rocket operations.
    Additionally, this amendment would allow the FAA to issue a NOTAM 
to designate a temporary flight restriction (TFR) for launch, reentry, 
or amateur rocket operations involving Class 2 or 3 amateur rockets 
when it determines a TFR is necessary to maintain safety.
    Lastly, the FAA proposes other language changes that would align 
the language used in Sec.  91.143 with the terminology used in Chapter 
509 and the FAA space transportation regulations and definitions. For 
example, the terms ``launch'' and ``reentry'' are defined in 14 CFR 
401.5 and are normally used to broadly categorize these types of 
operations. The FAA, therefore, proposes to replace ``space flight 
operations'' with ``launch, reentry, or amateur rocket operation.''

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    The FAA believes these revisions would strengthen the 
understandability of these requirements while enhancing safety in the 
affected airspace.

II. Background

    The language of ``flight limitations in the proximity of space 
flight operations'' as utilized in 14 CFR 91.143 was first promulgated 
in 1964 to support NASA's Gemini and Apollo space operations. By 
restricting non-essential aircraft from the designated recovery area, 
the FAA intended to ensure the safe recovery of spacecraft while 
mitigating the risk of an aircraft collision. At the time this rule was 
promulgated most of these recovery operations occurred outside of U.S. 
territorial airspace and the FAA could restrict only U.S. registered 
aircraft or aircraft piloted under an FAA-issued airman certificate. 
These expanded regulations were clarified in 1984, to include launch 
operations (and potential emergency recovery operations) in support of 
NASA's space shuttle program.
    The FAA now issues TFRs only for the airspace over the territory of 
the United States extending out to 12 nautical miles from the 
coastline. Since rule promulgation in 1984, an increasing number of 
rocket launches now occur over U.S. territorial airspace. The FAA 
therefore believes it is necessary to update regulations to align them 
with current practice.
    In recent years, because technological changes have resulted in an 
increased growth of larger amateur rockets with greater power, the FAA 
has issued NOTAMs under Sec.  91.143 to designate TFRs to segregate 
Class 2 and 3 amateur rockets from all other users of the National 
Airspace System (NAS). Class 2 and 3 amateur rockets operated under 14 
CFR part 101 are capable of operating up to 93.2 miles with multiple 
stages. Persons intending to operate a Class 2 or 3 rocket in a manner 
that requires a waiver to 14 CFR part 101 subpart C, must submit a 
proposal for waiver or authorization to the FAA. This includes 
proposals to launch a Class 2 or 3 amateur rockets into controlled 
airspace, which may require the FAA to implement a TFR to ensure 
safety.
    The process for the development of a TFR is extensive. For example, 
commercial space operators are required to file an application for a 
permit or license in order to conduct commercial space operations. The 
FAA reviews the application to determine ground and airborne hazard 
areas. The FAA then analyzes these proposals for safety impact, and 
then issues a permit or license for the operation. This license or 
permit application includes a letter of agreement between the operator 
and Air Traffic Control that may include special provisions that 
determine the area covered by a TFR along with detailed operational 
directives. Accordingly, in these circumstances, the FAA issues a NOTAM 
to designate a TFR that encompasses the hazardous areas necessary to 
avoid collisions with other NAS users.
    While TFRs may impose an inconvenience to NAS users, they are 
necessary to provide the highest level of safety. From an efficiency 
standpoint, the FAA strives to integrate all operations into the NAS. 
The operations of most launch vehicles could result in scenarios that 
are hazardous to other NAS users that may be in the vicinity of the 
operation. The use of a TFR for the segregation of other NAS users from 
commercial space operations and Class 2 and 3 amateur rockets is key to 
ensuring safety--when it is determined that a TFR is required.
    Therefore, by expanding the applicability of the TFR provision to 
amateur rocket operations, this proposed rulemaking would codify the 
FAA's ability to establish a TFR for a Class 2 or 3 amateur rocket 
operation, when it determines a TFR is necessary to maintain safety.

III. Discussion of the Proposal

A. Applicability

    The FAA has frequently used, without incident or accident, TFRs to 
segregate hazardous launch, reentry, and amateur rocket operations from 
all other NAS users (operating by visual and instrument flight rules). 
While Sec.  91.143 was intended to support NASA and DOD space 
operations outside U.S. airspace (over the ocean), in recent years 
commercial space and amateur rocket operations have increased over U.S. 
territorial airspace. The FAA issues TFRs only for the airspace over 
the territory of the U.S. extending 12 nautical miles from the 
coastline. Applying restrictions to all aircraft within this area is 
within the FAA's statutory authority and is consistent with the purpose 
of these restrictions (i.e., to mitigate the risk of aircraft collision 
by segregating launch, reentry and amateur rocket operations from other 
NAS users).
    Although current practice restricts all aircraft from areas 
designated by TFRs for launch, reentry and amateur rocket operations, 
this proposed change would ensure the applicability of the flight 
restrictions to U.S. and non-U.S. registered aircraft from entering 
into areas designated by TFR for launch, reentry, and amateur rocket 
operations. Accordingly, the FAA proposes to expand the applicability 
of Sec.  91.143 to all aircraft in order to mitigate the safety risk of 
aircraft operations in proximity to launch, reentry, and Class 2 or 3 
amateur rocket operations.

B. Title and Regulatory Change

    The FAA proposes revisions to the title and content of Sec.  91.143 
for: (1) Consistency with other TFR provisions in 14 CFR part 91, (2) 
consistency with the commercial space regulations in 14 CFR chapter 
III, and (3) to include Class 2 and 3 amateur rockets.
    Specifically, the FAA proposes replacing the title of Sec.  91.143 
``Flight limitation in the proximity of space flight operations'' with 
``Temporary Flight Restrictions in the Proximity of Launch and Reentry 
Operations,'' a title that more accurately reflects current practice 
and includes the use of the terms ``temporary flight restrictions'' and 
``launch and reentry operations.''
    The FAA also proposes replacing terms in the content of Sec.  
91.143, such as ``space flight operations'' with ``launch, reentry, or 
amateur rocket operations.'' ``Launch'' and ``reentry'' are defined in 
14 CFR Sec.  401.5 and are normally used to describe launch or reentry 
vehicles going to or returning from orbit or outer space, or operations 
associated with orbital and suborbital flight. Current references to 
``space operations'' encompass both launch and reentry.
    Finally, to align regulatory language with current practice, the 
FAA proposes the inclusion of Class 2 and 3 amateur rockets for TFR 
issuance when the FAA determines the proposed operation presents a 
safety risk. A certificate of waiver or authorization for Class 2 or 3 
amateur rocket launch would identify the designated hazard area used to 
determine the area to be covered by the TFR.
    Although these revisions address commercial space and amateur 
rocket operations, TFR provisions would continue to be used for DOD and 
NASA space operations as originally intended.

IV. Regulatory Notices and Analyses

A. Regulatory Evaluation

    Changes to Federal regulations must undergo several economic 
analyses. First, Executive Order 12866 and Executive Order 13563 direct 
that each Federal agency shall propose or adopt a regulation only upon 
a reasoned determination that the benefits of the intended regulation 
justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. 
L. 96-354) requires agencies to analyze the economic impact of 
regulatory changes on small

[[Page 53035]]

entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits 
agencies from setting standards that create unnecessary obstacles to 
the foreign commerce of the United States. In developing U.S. 
standards, the Trade Act requires agencies to consider international 
standards and, where appropriate, that they be the basis of U.S. 
standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 
104-4) requires agencies to prepare a written assessment of the costs, 
benefits, and other effects of proposed or final rules that include a 
Federal mandate likely to result in the expenditure by State, local, or 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more annually (adjusted for inflation with base year of 
1995). This portion of the preamble summarizes the FAA's analysis of 
the economic impacts of this proposed rule.
    Department of Transportation Order DOT 2100.5 prescribes policies 
and procedures for simplification, analysis, and review of regulations. 
If the expected cost impact is so minimal that a proposed or final rule 
does not warrant a full evaluation, this order permits that a statement 
to that effect and the basis for it to be included in the preamble if a 
full regulatory evaluation of the cost and benefits is not prepared. 
Such a determination has been made for this proposed rule. The 
reasoning for this determination follows.
    This proposed rule would expand the TFR provisions for launch, 
reentry, and amateur rocket operations. This proposed rule would 
formalize the current practice and apply the TFR to non-U.S. registered 
aircraft. No actions are required for U.S. entities. Since this 
proposed rule would merely amend language to improve the readability of 
the TFR requirements, formalize that current practice, and apply these 
restrictions to non-U.S. registered aircraft. The expected outcome 
would be a minimal impact with positive net benefits, and a regulatory 
evaluation was not prepared. The FAA requests comments with supporting 
justification about the FAA determination of minimal impact.
    The FAA has therefore, determined that this proposed rule is not a 
``significant regulatory action'' as defined in section 3(f) of 
Executive Order 12866, and is not ``significant'' as defined in DOT's 
Regulatory Policies and Procedures.

B. Regulatory Flexibility Determination

    The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) 
establishes ``as a principle of regulatory issuance that agencies shall 
endeavor, consistent with the objectives of the rule and of applicable 
statutes, to fit regulatory and informational requirements to the scale 
of the businesses, organizations, and governmental jurisdictions 
subject to regulation.'' To achieve this principle, agencies are 
required to solicit and consider flexible regulatory proposals and to 
explain the rationale for their actions to assure that such proposals 
are given serious consideration.'' The RFA covers a wide-range of small 
entities, including small businesses, not-for-profit organizations, and 
small governmental jurisdictions.
    Agencies must perform a review to determine whether a rule will 
have a significant economic impact on a substantial number of small 
entities. If the agency determines that it will, the agency must 
prepare a regulatory flexibility analysis as described in the RFA.
    However, if an agency determines that a rule is not expected to 
have a significant economic impact on a substantial number of small 
entities, section 605(b) of the RFA provides that the head of the 
agency may so certify and a regulatory flexibility analysis is not 
required. The certification must include a statement providing the 
factual basis for this determination, and the reasoning should be 
clear.
    Since all U.S. entities are covered by current practice, this 
proposed rule would expand the applicability of TFR provisions for 
launch, reentry and amateur rocket operations to all aircraft, 
including non-U.S. registered aircraft. The expected outcome would have 
only a minimal impact on any small entity affected by this rulemaking 
action. Therefore, as provided in section 605(b), the head of the FAA 
certifies that this rulemaking will not result in a significant 
economic impact on a substantial number of small entities.

C. International Trade Impact Assessment

    The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the 
Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal 
agencies from establishing standards or engaging in related activities 
that create unnecessary obstacles to the foreign commerce of the United 
States. Pursuant to these Acts, the establishment of standards is not 
considered an unnecessary obstacle to the foreign commerce of the 
United States, so long as the standard has a legitimate domestic 
objective, such as the protection of safety, and does not operate in a 
manner that excludes imports that meet this objective. The statute also 
requires consideration of international standards and, where 
appropriate, that they be the basis for U.S. standards. The FAA has 
assessed the potential effect of this proposed rule and determined that 
it would responds to a domestic safety objective and not considered an 
unnecessary obstacle to trade.

D. Unfunded Mandates Assessment

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each Federal agency to prepare a written statement 
assessing the effects of any Federal mandate in a proposed or final 
agency rule that may result in an expenditure of $100 million or more 
(in 1995 dollars) in any one year by State, local, and tribal 
governments, in the aggregate, or by the private sector; such a mandate 
is deemed to be a ``significant regulatory action.'' The FAA currently 
uses an inflation-adjusted value of $155 million in lieu of $100 
million. This proposed rule does not contain such a mandate; therefore, 
the requirements of Title II of the Act do not apply.

E. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires 
that the FAA consider the impact of paperwork and other information 
collection burdens imposed on the public. The FAA has determined that 
there would be no new requirement for information collection associated 
with this proposed rule.

F. International Compatibility and Cooperation

    (1) In keeping with U.S. obligations under the Convention on 
International Civil Aviation, it is FAA policy to conform to 
International Civil Aviation Organization (ICAO) Standards and 
Recommended Practices to the maximum extent practicable. The FAA has 
determined that there are no ICAO Standards and Recommended Practices 
that correspond to these proposed regulations.

G. Environmental Analysis

    FAA Order 1050.1F identifies FAA actions that are categorically 
excluded from preparation of an environmental assessment or 
environmental impact statement under the National Environmental Policy 
Act in the absence of extraordinary circumstances. The FAA has 
determined this rulemaking action qualifies for the categorical 
exclusion identified in paragraph 312f and involves no extraordinary 
circumstances.

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V. Executive Order Determinations

A. Executive Order 13132, Federalism

    The FAA has analyzed this proposed rule under the principles and 
criteria of Executive Order 13132, Federalism. The agency has 
determined that this action would not have a substantial direct effect 
on the States, or the relationship between the Federal Government and 
the States, or on the distribution of power and responsibilities among 
the various levels of government, and, therefore, would not have 
Federalism implications.

B. Executive Order 13211, Regulations That Significantly Affect Energy 
Supply, Distribution, or Use

    The FAA analyzed this proposed rule under Executive Order 13211, 
Actions Concerning Regulations that Significantly Affect Energy Supply, 
Distribution, or Use (May 18, 2001). The agency has determined that it 
would not be a ``significant energy action'' under the executive order 
and would not be likely to have a significant adverse effect on the 
supply, distribution, or use of energy.

C. Executive Order 13609, Promoting International Regulatory 
Cooperation

    Executive Order 13609, Promoting International Regulatory 
Cooperation, promotes international regulatory cooperation to meet 
shared challenges involving health, safety, labor, security, 
environmental, and other issues and to reduce, eliminate, or prevent 
unnecessary differences in regulatory requirements. The FAA has 
analyzed this action under the policies and agency responsibilities of 
Executive Order 13609, and has determined that this action would have 
no effect on international regulatory cooperation.

VI. Additional Information

A. Comments Invited

    The FAA invites interested persons to participate in this 
rulemaking by submitting written comments, data, or views. The agency 
also invites comments relating to the economic, environmental, energy, 
or federalism impacts that might result from adopting the proposals in 
this document. The most helpful comments reference a specific portion 
of the proposal, explain the reason for any recommended change, and 
include supporting data. To ensure the docket does not contain 
duplicate comments, commenters should send only one copy of written 
comments, or if comments are filed electronically, commenters should 
submit only one time.
    The FAA will file in the docket all comments it receives, as well 
as a report summarizing each substantive public contact with FAA 
personnel concerning this proposed rulemaking. Before acting on this 
proposal, the FAA will consider all comments it receives on or before 
the closing date for comments. The FAA will consider comments filed 
after the comment period has closed if it is possible to do so without 
incurring expense or delay. The agency may change this proposal in 
light of the comments it receives.
    Proprietary or Confidential Business Information: Commenters should 
not file proprietary or confidential business information in the 
docket. Such information must be sent or delivered directly to the 
person identified in the FOR FURTHER INFORMATION CONTACT section of 
this document, and marked as proprietary or confidential. If submitting 
information on a disk or CD ROM, mark the outside of the disk or CD 
ROM, and identify electronically within the disk or CD ROM the specific 
information that is proprietary or confidential.
    Under 14 CFR 11.35(b), if the FAA is aware of proprietary 
information filed with a comment, the agency does not place it in the 
docket. It is held in a separate file to which the public does not have 
access, and the FAA places a note in the docket that it has received 
it. If the FAA receives a request to examine or copy this information, 
it treats it as any other request under the Freedom of Information Act 
(5 U.S.C. 552). The FAA processes such a request under Department of 
Transportation procedures found in 49 CFR part 7.

B. Availability of Rulemaking Documents

    An electronic copy of rulemaking documents may be obtained from the 
Internet by--
    1. Searching the Federal eRulemaking Portal (http://www.regulations.gov);
    2. Visiting the FAA's Regulations and Policies Web page at http://www.faa.gov/regulations_policies or
    3. Accessing the Government Printing Office's Web page at http://www.gpo.gov/fdsys/.
    Copies may also be obtained by sending a request to the Federal 
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence 
Avenue SW., Washington, DC 20591, or by calling (202) 267-9677. 
Commenters must identify the docket or notice number of this 
rulemaking.
    All documents the FAA considered in developing this proposed rule, 
including economic analyses and technical reports, may be accessed from 
the Internet through the Federal eRulemaking Portal referenced in item 
(1) above.

List of Subjects in 14 CFR Part 91

    Air traffic control, Aircraft, Airmen, Aviation safety.

The Proposed Amendment

    In consideration of the foregoing, the Federal Aviation 
Administration proposes to amend chapter I of title 14, Code of Federal 
Regulations as follows:

PART 91--GENERAL OPERATING AND FLIGHT RULES

0
1. The authority citation for part 91 is revised to read as follows:

    Authority: 49 U.S.C. 106(f), 106(g), 1155, 40101, 40103, 40105, 
40113, 40120, 44101, 44111, 44701, 44704, 44709, 44711, 44712, 
44715, 44716, 44717, 44722, 46306, 46315, 46316, 46504, 46506-46507, 
47122, 47508, 47528-47531, 47534, articles 12 and 29 of the 
Convention on International Civil Aviation (61 Stat. 1180), (126 
Stat. 11).

0
2. Revise Sec.  91.143 to read as follows:

Sec.  91.143  Temporary flight restrictions in the proximity of launch 
and reentry operations.

    No person may operate an aircraft contrary to a Temporary Flight 
Restriction established by the Administrator in a Notice to Airman 
(NOTAM) within an area designated for a launch, reentry, or amateur 
rocket operation, unless authorized by ATC.

    Issued under authority provided by 49 U.S.C. 106(f), 40103(b), 
and 44701(a) in Washington, DC, on August 18, 2015.
Jodi S. McCarthy,
Director, Airspace Services.
[FR Doc. 2015-21567 Filed 9-1-15; 8:45 am]
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