[Federal Register Volume 60, Number 76 (Thursday, April 20, 1995)]
[Rules and Regulations]
[Pages 19669-19673]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-9775]



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DEPARTMENT OF THE INTERIOR
30 CFR Part 914

[IN-112-FOR; Amendment 92-7C]


Indiana Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM), 
Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is approving, with exceptions, a proposed amendment to the 
Indiana permanent regulatory program (hereinafter referred to as the 
Indiana program) under the Surface Mining Control and Reclamation Act 
of 1977 (SMCRA). The amendment is a continuation of an earlier program 
amendment and consists of revisions to Indiana's Surface Coal Mining 
and Reclamation Rules concerning the control of subsidence caused by 
underground mining operations. The amendment is intended to revise the 
Indiana program to be consistent with SMCRA and to incorporate State 
initiatives.

EFFECTIVE DATE: April 20, 1995.

FOR FURTHER INFORMATION CONTACT:
Mr. Roger W. Calhoun, Director, Indianapolis Field Office, Office of 
Surface Mining Reclamation and Enforcement, Minton-Capehart Federal 
Building, 575 North Pennsylvania Street, Room 301, Indianapolis, IN 
46204, Telephone (317) 226-6166.

SUPPLEMENTARY INFORMATION: 

I. Background on the Indiana Program.
II. Submission of the Amendment.
III. Director's Findings.
IV. Summary and Disposition of Comments.
V. Director's Decision.
VI. Procedural Determinations.

I. Background on the Indiana Program

    On July 29, 1982, the Indiana program was made effective by the 
conditional approval of the Secretary of the Interior. Information 
pertinent to the general background on the Indiana program, including 
the Secretary's findings, the disposition of comments, and a detailed 
explanation of the conditions of approval of the Indiana program can be 
found in the July 26, 1982 Federal Register (47 FR 32107). Subsequent 
actions concerning the conditions of approval and program amendments 
are identified at 30 CFR 914.10, 914.15, and 914.16.

II. Submission of the Amendment

    By letter dated December 2, 1992 (Administrative Record No. IND-
1175), the Indiana Department of Natural Resources (IDNR) submitted a 
proposed amendment (#92-7) to the Indiana program. Amendment #92-7 
proposed changes to the Indiana surface mining rules concerning 
subsidence liability.
    On May 17, 1993, OSM approved, with two exceptions, amendment #92-7 
(58 FR 28775). By letter dated March 18, 1994 (Administrative Record 
Number IND-1340), Indiana submitted to OSM a notice of the final 
adoption of amendment #92-7 as published in the Indiana Register, 
Volume 17, Number 6, pages 1086-1089 (March 1, 1994).
    The final adopted language of amendment #92-7 differs in some ways 
from the language approved by OSM on May 17, 1993. Therefore, OSM 
reopened the public comment period and invited comment on the 
substantive differences.
    OSM announced receipt of the proposed amendment in the April 22, 
1994, Federal Register (59 FR 19155), [[Page 19670]] and, in the same 
notice, opened the public comment period and provided opportunity for a 
public hearing on the adequacy of the proposed amendment. The comment 
period closed on May 23, 1994.

III. Director's Findings

    Set forth below, pursuant to SMCRA and the Federal regulations at 
30 CFR 732.15 and 732.17, are the Director's findings concerning the 
proposed amendment to the Indiana program. Nonsubstantive word changes 
and paragraph notation changes also appear in the final adopted version 
of amendment #92-7. However, only the substantive changes are discussed 
below.

1. 310 IAC 12-3-87.1  Subsidence Control Plan

    a. 310 IAC 12-3-87.1(c)(2). In the May 17, 1993, Federal Register 
notice which approved most of Indiana amendment #92-7 concerning 
subsidence, the Director did not fully approve the proposed language at 
subsection 87.1(c)(2). The language at subsection 87.1(c)(2) was 
approved except to the extent the provision defers to State law to 
correct subsidence related material damage.
    On October 24, 1992, SMCRA was amended by the addition of new 
section 720 concerning subsidence. New section 720 provides that 
underground coal mining operations shall promptly repair, or compensate 
for, material damage resulting from subsidence caused to any occupied 
residential dwelling and structures related thereto, or noncommercial 
building due to underground coal mining operations. The new SMCRA 
provision does not provide for deference to State law regarding the 
repair or compensation for material damage resulting from subsidence 
due to underground coal mining operations. Therefore, in the May 17, 
1993, Federal Register notice, the Director found the proposed language 
at 310 IAC 12-3-87.1(c)(2) less effective than the counterpart Federal 
regulations at 30 CFR 784.20(b) to the extent that the language affords 
a lesser degree of protection to occupied residential dwellings, 
related structures, and noncommercial buildings than SMCRA as revised.
    The currently proposed 310 IAC 12-3-87.1(c)(2) provides that the 
subsidence control plan must contain a map of underground workings 
which includes all areas where the measures described in subdivisions 
(4) and (5) will be taken ``where appropriate under state law'' to 
correct subsidence related material damage. The quoted language, 
``where appropriate under state law'' is identical to the language 
which OSM did not approve in the May 17, 1993, Federal Register notice.
    In its submittal of this final adopted language, Indiana provided 
two reasons for its retention of the language quoted above. First, 
Indiana asserts that the language quoted above is substantially 
identical to the counterpart Federal regulations at 30 CFR 784.20(b). 
Second, Indiana asserts that a newly enacted statute, IC 13-4.1-9-2.5, 
which was included in Senate Enrolled Act No. 408 and signed into 
Indiana law on March 11, 1994, codifies the October 24, 1992, changes 
made to Federal SMCRA at section 720. Specifically, Indiana asserts 
that because Indiana law (IC 13-4.1-9-2.5) requires the correction of 
material subsidence damage to the same degree as amended SMCRA at 
section 720, the current regulation's (310 IAC 12-3-87.1(c)(2)(B)(ii)) 
reference to Indiana law is no longer less effective than the 
requirements of the Federal program.
    In response to Indiana's assertions, the Director notes the 
following. On March 31, 1995 (60 FR 16722-16751), OSM amended the 
Federal subsidence regulations at 30 CFR 784 to bring those regulations 
into conformance with SMCRA at new section 720. Currently, neither 
SMCRA at section 720 nor 30 CFR 784.20(b) provide for deference to 
State law regarding the repair or compensation for material damage 
resulting from subsidence due to underground coal mining operations.
    However, Indiana State law at IC 13-4.1-9-2.5 provides a 
counterpart to SMCRA section 720 from June 30, 1994, on.
    On April 4, 1995 (60 FR 16985), the Director published an approval 
of IC 13-4.1-9-2.5, Indiana's new law concerning subsidence control. In 
that notice, the Director determined that IC 13-4.1-9-2.5 is 
substantively identical to and no less stringent than SMCRA at new 
section 720 with one exception. The Indiana law applies only to damage 
that occurs after June 30, 1994. SMCRA at section 729(a) provides that 
underground coal mining operations conducted after the date of 
enactment of section 720 (October 24, 1992) shall comply with each of 
the requirements of section 720. Therefore, the Director approved IC 
13-4.1-9-2.5 to the extent that the Indiana law meets the requirements 
of SMCRA section 720(a) from June 30, 1994.
    In addition, the Director deferred decision on the enforcement of 
the provisions of SMCRA section 720(a) during the period from the 
effective date of SMCRA section 720 (October 24, 1992) to the effective 
date of IC 13-4.1-9-2.5 (June 30, 1994). Pursuant to newly promulgated 
30 CFR 843.25, OSM intends to publish by July 31, 1995, for each State 
with a regulatory program, including Indiana, final rule notices 
concerning the enforcement of the provisions of the Energy Policy Act 
in those States.
    Since, by letter dated March 18, 1994 (Administrative Record IND-
1340), Indiana interpreted ``state law'' as used in 310 IACV 12-3-87.1 
to mean the provisions found at IC 13-4.1-9-2.5, the Director finds 
that this provision is no less effective than 30 CFR 784.20(b) and no 
less stringent than SMCRA section 720, to the extent that IC 13-4.1-9-
2.5 meets the requirements of SMCRA section 720 from June 30, 1994. The 
Director is deferring decision until July 31, 1995, on the enforcement 
of the provisions of SMCRA section 720 and 30 CFR 784.20 during the 
period from the effective date of SMCRA section 720 (October 24, 1992) 
to the effective date of IC 13-4.1-9-2.5 (June 30, 1994).
    b. 310 IAC 12-3-87.1(c)(7). In the second sentence of this 
subdivision, Indiana is deleting the word ``operator'' and adding in 
its place the word ``permittee.'' With this change, the permittee is 
required to include required information in the permit application. The 
word ``permittee'' is the appropriate word to use in this section on 
permit application requirements. The Director finds the change to be 
consistent with and no less effective than the Federal regulations at 
30 CFR 784.20 concerning subsidence control plan.

2. 310 IAC 12-5-130.1  Subsidence Control; General Requirements

    In the final adopted language at subsection 130.1(c)(2), language 
appears which is identical to language which OSM did not approve in the 
May 17, 1993, Federal Register notice. Specifically, the language at 
subsection 130.1(c)(2) provides for the repair or compensation of 
damage caused by subsidence ``[t]o the extent required under Indiana 
law.'' In the May 17, 1993 notice at Finding 2, OSM did not approve the 
language which reads ``[t]o the extent required under Indiana law.''
    OSM did not approve the Indiana deference to State law because it 
afforded a lesser degree of protection to occupied residential 
dwellings, related structures, and noncommercial buildings than section 
720 of SMCRA. See Finding 1, above, for a discussion of section 720 of 
SMCRA.
    In its submittal of this final adopted language, Indiana provided 
an explanation why the language which defers to State law was retained. 
Indiana [[Page 19671]] stated (also see Finding 1, above) that new 
Indiana law IC 13-4.1-9-2.5 requires the correction of material 
subsidence damage to the same degree as SMCRA at section 720. 
Therefore, Indiana asserts, the language at 310 IAC 12-5-130.1(c)(2) 
which defers to State law is no longer less effective than the 
requirements of the Federal program.
    As discussed in Finding 1 above, the new Indiana law at IC 13-4.1-
9-2.5 is substantially identical to and no less stringent than SMCRA at 
section 720 except to the extent that the Indiana law applies only to 
damage that occurs after June 30, 1994. SMCRA at section 720(a) 
provides for such repair or compensation by underground coal mining 
operations conducted after the date of enactment of section 720 
(October 24, 1992). Since, by letter dated March 18, 1994 
(Administrative Record No. IND-1340), Indiana interpreted ``state law'' 
as used in 310 IAC 12-5-130.1(c)(2), to mean the provisions found at IC 
13-4.1-9-2.5, the Director finds that this provision is no less 
effective than 30 CFR 817.121(a)(2) and no less stringent than SMCRA 
section 720, to the extent that IC 13-4.1-9-2.5 meets the requirements 
of SMCRA section 720 from June 30, 1994. The Director is deferring 
decision on the enforcement of the provisions of SMCRA section 720 and 
30 CFR 817.121 during the period from the effective date of SMCRA 
section 720 (October 24, 1992) to the effective date of IC 13-4.1-9-2.5 
(June 30, 1994).

3. 310 IAC 12-5-130.1(g)  Suspension of Underground Mining

    Indiana added language to this provision after the provision was 
approved by OSM on May 17, 1993. At subdivision 130.1(g)(2) the words 
``under or'' are added. With the added language, the provision provides 
that the director of INDR shall suspend underground mining activities 
under or adjacent to industrial or commercial buildings, pipelines, 
major impoundments, or perennial streams.
    In addition, the words ``under any other location'' are added in 
new subdivision 130.1(g)(3). With this new language, the director of 
INDR shall suspend underground mining activities under any other 
location if imminent danger is found to inhabitants of urbanized areas, 
cities, towns, or communities ``or whenever required or authorized by 
IC 13-4.1-11-5.''
    The quoted language immediately above identifies the third revision 
to subsection 130.1(g). With this new language, the director of INDR 
shall also suspend underground mining activities whenever required or 
authorized by IC 13-4.1-11-5 concerning cessation orders. The Director 
finds that these changes are consistent with and no less effective than 
the Federal regulations at 30 CFR 817.121(f).

4. 310 IAC 12-5-130.1(h)  Detailed Report of Underground Workings

    The changes in this subsection are related to the preparation and 
certification of the required map of underground workings. 
Specifically, Indiana has deleted the word ``registered'' immediately 
preceding the words ``professional engineer.'' Also, the words ``or 
registered land surveyor'' are added following the words ``professional 
engineer.'' With these changes, the required map of underground 
workings shall be prepared by, or under the direction of, and certified 
by a qualified professional engineer or registered land surveyor with 
assistance from experts in related fields such as land surveying. The 
Director finds that the amendments are not inconsistent with and are no 
less effective than the counterpart Federal regulations at 30 CFR 
817.121(g) which provide that the operator shall submit a detailed plan 
of the underground workings.

5. Repealed Provisions

    Indiana proposes to repeal 310 IAC 12-3-87, 310 IAC 12-5-130, 310 
IAC 12-5-131, and IAC 12-5-132. The provisions are proposed for repeal 
because they are replaced by 310 IAC 12-3-87.1, 310 IAC 12-5-130.1, and 
10 IAC 12-5-131.1.
    The Director is approving the repeal of 310 IAC 12-3-87, 310 IAC 
12-5-130, and 310 IAC 12-5-131 because such repeal does not render the 
Indiana program less effective than the Federal regulations. The 
director is deferring decision on the repeal of 310 IAC 12-5-132 until 
July 31, 1995, when OSM will address the enforcement of the provisions 
of SMCRA section 720 and 30 CFR 784.20 during the period from the 
effective date of SMCRA section 720 (October 24, 1992) to the effective 
date of IC 13-4.1-9-2.5 (June 30, 1994).

IV. Summary and Disposition of Comments

Federal Agency Comments

    Pursuant to section 503(b) of SMCRA and 30 CFR 732.17(h)(11)(i), 
comments were solicited from various interested Federal agencies. The 
U.S. Department of Agriculture, Soil Conservation Service (SCS) 
commented on the amendment (Administrative Record Number IND-1345). The 
SCS stated that the SCS determined that the changes will not impact SCS 
programs differently from the existing rules.

Public Comments

    The public comment period and opportunity to request a public 
hearing was announced in the April 22, 1994, Federal Register (59 FR 
19155). The comment period closed on May 23, 1994. No one requested an 
opportunity to testify at the scheduled public hearing so no hearing 
was held.
    Ms. Freida K. Harris commented that OSM should not approve the 
proposed amendments because the amendments contain language which OSM 
has previously not approved. Specifically, the commenter is referring 
to Indiana's deference to State law at 310 IAC 12-3-87.1(c)(2)(B)(ii) 
and 310 IAC 12-5-130.1(c)(2).
    As discussed above in Findings 1 and 2, the Director did not fully 
approve the previously-proposed language at 310 IAC 12-3-87.1(c)(2) and 
310 IAC 12-5-130.1(c)(2) to the extent that the proposed language 
deferred to State law to correct subsidence related material damage. 
Since the time of that final rule notice, however, Indiana amended its 
statutes by adding IC 13-4.1-9-2.5 as a counterpart to the new SMCRA 
provision at section 720 concerning subsidence liability. Upon review 
of Indiana's new subsidence statute, the Director determined that the 
subsidence statute is no less stringent than SMCRA at section 720 to 
the extent that Indiana's statue meets the requirements of SMCRA 
section 720 from June 30, 1994. As discussed in Findings 1 and 2 above, 
the Director is deferring, until July 31, 1995, decision concerning the 
enforcement of the provisions of the Energy Policy Act in Indiana 
during the period from the effective date of SMCRA section 720 (October 
24, 1992) to the effective date of IC 13-4.1-9-2.5 (June 30, 1994). In 
the March 31, 1995, approval of the Federal subsidence regulations (60 
FR 16722-16751) OSM stated that it will publish proposed notices and 
open public comment periods to seek comment on information submitted by 
States with approved regulatory programs, including Indiana, concerning 
enforcement of the Energy Policy Act provisions in those States. The 
public comment period for Indiana closes on May 8, 1995.
    Mr. R. Gehres commented on the proposed changes at 310 IAC 12-5-
130.1(h). Specifically, the commenter objected to the removal of the 
term ``registered'' as it appeared before the words ``professional 
engineer,'' and to the addition of a ``registered land surveyor'' to 
the language describing who must prepare the required maps of 
[[Page 19672]] underground workings. In response, the Director notes 
that the counterpart Federal regulations at 30 CFR 817.121(g), while 
requiring the submittal of a detailed plan of the underground workings 
do not specify the credentials of individuals who may prepare those 
plans. Therefore, Indiana's amendments at 310 IAC 12-5-130.1(h) do not 
render the Indiana language less effective than 30 CFR 817.121(g).
    Amoco Pipeline Company and Tennico Gas, Inc., pipeline operators, 
commented that the proposed amendments provide inadequate protection to 
pipelines from unplanned subsidence. The proposed wording is 
unnecessarily restrictive without justification the commenter stated.
    In response, the Director notes that the proposed Indiana language 
is patterned after the Federal regulations at 30 CFR 817.121 concerning 
subsidence control, and SMCRA at section 720 concerning repair or 
compensation of subsidence damage. On March 31, 1995 (60 FR 16722-
16751), OSM published subsidence regulations that are intended to 
implement the new provisions at SMCRA section 720. In that notice, OSM 
noted that Congress directed OSM to review existing Federal, State, and 
local laws, as well as common law related to underground coal mine 
subsidence and natural gas and petroleum pipeline safety. Since that 
mandated review and report are not finished, OSM believes that it would 
be premature to revise existing law at this time.

Environmental Protection Agency (EPA)

    Under 30 CFR 732.17(h)(11)(ii), the director is required to obtain 
the written concurrence of the Administrator of the EPA with respect to 
any provisions of a State program amendment that relate to air or water 
quality standards promulgated under the authority of the Clean Water 
Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et 
seq.). The Director has determined that this amendment contains no 
provisions in these categories and that EPA's concurrence is not 
required.
    Pursuant to 732.17(h)(11)(i), OSM solicited comments on the 
proposed amendment from EPA (Administrative Record No. IND-1221). EPA 
responded by letter dated June 21, 1994 (Administrative Record Number 
IND-1373). In that letter, the EPA concurred without comment.

V. Director's Decision

    Based on the findings above, the Director is approving, except as 
noted below, Indiana's program amendment concerning subsidence as 
submitted by Indiana on March 18, 1994. As discussed above in Finding 1 
concerning 310 IAC 12-3-87.1(c)(2) and Finding 2 Concerning 310 IAC 12-
5-130.1(c)(2), the Director is approving the propose deference to State 
law to the extent that IC 13-4.1-9-2.5 meets the requirements of SMCRA 
section 720 from June 30, 1994. The Director is deferring decision on 
the enforcement of the provisions of SMCRA section 720 during the 
period from the effective date of SMCRA section 720 (October 24, 1992) 
to the effective date of IC 13-4.1-9-2.5 (June 30, 1994). As discussed 
in Finding 5, the Director is deferring decision on the repeal of 310 
IAC 12-5-132.
    The Federal regulations at 30 CFR Part 914 codifying decisions 
concerning the Indiana program are being amended to implement this 
decision. This final rule is being made effective immediately to 
expedite the State program amendment process and to encourage States to 
bring their programs into conformity with the Federal standards without 
undue delay. Consistency of State and Federal standards is required by 
SMCRA.

Effect of Director's Decision

    Section 503 of SMCRA provides that a State may not exercise 
jurisdiction under SMCRA unless the State program is approved by the 
Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of 
an approved State program be submitted to OSM for review as a program 
amendment. Thus, any changes to the State program are not enforceable 
until approved by OSM. The Federal regulations at 30 CFR 732.17(g) 
prohibit any unilateral changes to approved State programs. In his 
oversight of the Indiana program, the Director will recognize only the 
statutes, regulations and other materials approved by him, together 
with any consistent implementing policies, directives and other 
materials, and will require the enforcement by Indiana of only such 
provisions.

VI. Procedural Determinations

Executive Order 12866

    This rule is exempted from review by the Office of Management and 
Budget (OMB) under Executive Order 12866 (Regulatory Planning and 
Review).

Executive Order 12778

    The Department of the Interior has conducted the reviews required 
by section 2 of Executive Order 12778 (Civil Justice Reform) and has 
determined that, to the extent allowed by law, this rule meets the 
applicable standards of subsections (a) and (b) of that section. 
However, these standards are not applicable to the actual language of 
State regulatory programs and program amendments since each such 
program is drafted and promulgated by a specific State, not by OSM. 
Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30 
CFR 730.11, 732.15 and 732.17(h)(10), decisions on proposed State 
regulatory programs and program amendments submitted by the States must 
be based solely on a determination of whether the submittal is 
consistent with SMCRA and its implementing Federal regulations and 
whether the other requirements of 30 CFR Parts 730, 731, and 732 have 
been met.

National Environmental Policy Act

    No environmental impact statement is required for this rule since 
section 702(d) of SMCRA [30 U.S.C. 1292(d)] provides that agency 
decisions on proposed State regulatory program provisions do not 
constitute major Federal actions within the meaning of section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 
4332(2)(C)).

Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 
3507 et seq.).

Regulatory Flexibility Act

    The Department of the Interior has determined that this rule will 
not have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The State submittal which is the subject of this rule is based upon 
counterpart Federal regulations for which an economic analysis was 
prepared and certification made that such regulations would not have a 
significant economic effect upon a substantial number of small 
entities. Accordingly, this rule will ensure that existing requirements 
previously promulgated by OSM will be implemented by the State. In 
making the determination as to whether this rule would have a 
significant economic impact, the Department relied upon the data and 
assumptions for the counterpart Federal regulations.

List of Subjects in 30 CFR Part 914

    Intergovernmental relations, Surface mining, Underground mining.

    [[Page 19673]] Dated: April 14, 1995.

Tim L. Dieringer,

Acting Assistant Director, Eastern Support Center.

    For the reasons set out in the preamble, Title 30, Chapter VII, 
Subchapter T of the Code of Federal Regulations is amended as set forth 
below:

PART 914--INDIANA

    1. The authority citation for Part 914 continues to read as 
follows:

    Authority: 30 U.S.C. 1201 et seq.

    2. In Sec. 914.15, paragraph (iii) is added to read as follows:

Sec. 914.15  Approval of regulatory program amendments.

* * * * *

    (iii) The following amendment to the Indiana program concerning 
underground mine subsidence as submitted to OSM on March 18, 1994, is 
approved, except as noted herein, effective April 20, 1995: 310 IAC 12-
3-87.1(c)(2) concerning subsidence control plan, to the extent that IC 
13-4.1-9-2.5 meets the requirements of SMCRA section 720 from June 30, 
1994. The Director is deferring decision on the enforcement of the 
provisions of SMCRA section 720 during the period from the effective 
date of SMCRA section 720 (October 24, 1992) to the effective date of 
IC 13-4.1-9-2.5 (June 30, 1994); 310 IAC 12-3-87.1(c)(7) concerning 
subsidence control plan; 310 IAC 12-5-130.1(c)(2) concerning subsidence 
control plan, general requirements, to the extent that IC 13-4.1-9-2.5 
meets the requirements of SMCRA section 720 from June 30, 1994. The 
Director is deferring decision on the enforcement of the provisions of 
SMCRA section 720 during the period from the effective date of SMCRA 
section 720 (October 24, 1992) to the effective date of IC 13-4.1-9-2.5 
(June 30, 1994); 310 IAC 12-5-130.1(g) concerning suspension of 
underground mining; 310 IAC 12-5-130.1(h) concerning detailed report of 
underground workings; the repeal of 310 IAC 12-3-87, 310 IAC 12-5-130, 
and 310 IAC 12-5-131; decision on the repeal of 310 IAC 12-5-132 is 
deferred.

[FR Doc. 95-9775 Filed 4-19-95; 8:45 am]

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