[Federal Register Volume 61, Number 82 (Friday, April 26, 1996)]
[Notices]
[Pages 18575-18578]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10334]



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DEPARTMENT OF DEFENSE
Department of the Army; Corps of Engineers


Proposed Regulatory Guidance Letter on Programmatic General 
Permits

AGENCY: U.S. Army Corps of Engineers, DoD.

ACTION: Notice of intent and request for comments.

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SUMMARY: The Corps of Engineers is proposing to issue a Regulatory 
Guidance Letter (RGL) which would establish National policy guidance 
for the development and implementation of Programmatic General Permits 
(PGP). PGPs are a type of general permit issued by the Corps, that 
authorizes, for the purposes of Section 10 of the Rivers and Harbors 
Act of 1899 (33 U.S.C. 403), Section 404 of the Clean Water Act (33 
U.S.C. 1344), and/or Section 103 of the Marine Protection, Research and 
Sanctuaries Act of 1972 (33 U.S.C. 1413), certain projects that are 
also regulated by another Federal, tribal, state, or local regulatory 
authority. This notice provides the proposed PGP RGL for review and 
opportunity to comment. RGLs are used by the Corps Headquarters as a 
means to transmit guidance on the regulatory program (33 CFR Parts 320-
330), to its division and district engineers. While not required by law 
or regulation, the Corps is publishing this PGP RGL for review and 
comment.

DATES: Comments on the proposed PGP RGL must be received by May 28, 
1996.

ADDRESSES: Comments may be mailed to the U.S. Army Corps of Engineers, 
ATTN: CECW-OR, PGP Docket, 20 Massachusetts Avenue, NW., Washington, DC 
20314-1000 or faxed to (202) 761-5096.

FOR FURTHER INFORMATION CONTACT: Mr. Victor Cole, Regulatory Branch, 
Office of the Chief of Engineers at (202) 761-0199.
SUPPLEMENTARY INFORMATION: The Clinton Administration's Wetlands Plan 
promotes State involvement through assumption of the Clean Water Act 
Section 404 program (through Section 404 g-1) and/or PGP development. 
Many States have chosen to pursue a PGP with the Corps in lieu of State 
assumption or as an initial first step to assumption. Regardless of the 
reason, the Corps encourages the use of PGPs as a effective mechanism 
to reduce duplicative regulatory processes, simplify the application 
process for applicants, and make wise use of limited resources, while 
continuing to protect the aquatic environment in at least an equivalent 
manner as the Corps program. Our efforts to prepare a draft PGP RGL for 
publication involved coordination with several states, Corps districts, 
and other Federal resource agencies. The draft PGP RGL was developed 
based upon this coordination and structured similar to several 
successful PGPs that have been issued by Corps districts. The draft PGP 
RGL was also provided for review and comment to the White House 
Wetlands Working Group. Upon review and consideration of comments 
received, the Corps will publish the final PGP RGL in the Federal 
Register.

    Dated: April 1, 1996.

    Approved:
Daniel R. Burns,
Chief, Operations, Construction, and Readiness Division, Directorate of 
Civil Works.

Regulatory Guidance Letter

RGL 96-01, Date: pending, Expires: pending

Subject: Programmatic General Permits, Including State Program General 
Permits

1. Background and Purpose

    a. The development of a programmatic general permit (PGP) is an 
effective mechanism available to the U.S. Army Corps of Engineers 
(Corps) and Federal, tribal, State, and local regulatory authorities 
(other regulatory authority (ORA)) to improve the regulatory process 
for applicants, enhance environmental protection, reduce unnecessary 
duplicative procedures and evaluations, and make more efficient use of 
limited resources. The partnership that develops between the Corps and 
the ORA will directly benefit the regulated public and effectively 
reduce unnecessary duplication while maintaining important 
environmental safeguards. Our encouragement of the use of PGPs should 
not be viewed as an attempt to allow the Corps to evade its statutory 
responsibility to administer the Regulatory Program, nor as an attempt 
to delegate the Regulatory Program, or simply to reduce the Corps 
workload. In times of increasing fiscal pressure, all levels of 
Government must redouble their efforts to use resources as efficiently 
as possible. PGPs can provide an efficient mechanism to meet this 
objective, to maintain important environmental protection, and to 
provide improved service to the regulated public.
    b. A PGP is a type of general permit (33 CFR 322.2(f) and 
323.2(h)), issued by the Corps, that authorizes, for the purposes of 
Section 10 of the Rivers and Harbors Act of 1899 (RFA; 33 U.S.C. 403), 
Section 404 of the Clean Water Act (CWA; 33 U.S.C. 1344), and/or 
Section 103 of the Marine Protection, Research and Sanctuaries Act of 
1972 (MPRSA; 33 U.S.C. 1413), certain projects that are also regulated 
by another Federal, tribal, State, or local regulatory authority. A PGP 
is the written vehicle identifying the terms, limitations, and 
conditions under which specific projects regulated by an ORA program 
may be authorized under the Corps Regulatory Program with a much more 
efficient and abbreviated review by the Corps. Programmatic general 
permits are designed to:
    (1) Simplify the evaluation process for both the regulatory 
agencies and the applicant (i.e., to strive for ``one-stop-shopping'');
    (2) Provide at least equivalent (and sometimes enhanced) 
environmental protection for aquatic resources;
    (3) Reduce unnecessary duplicative project evaluation; and
    (4) Promote more effective and efficient use of Corps, as well as 
other agencies', resources.
    c. While administering the Regulatory Program, the Corps attempts 
to minimize duplication of effort with ORA programs that protect the 
aquatic environment in a manner at least equivalent to the Corps 
Regulatory Program. Minimizing duplication of effort serves the best 
interests of the regulated public, by reducing or eliminating 
unnecessary paperwork, reviews, and delays, and also serves the best 
interests of the environment and all other aspects of the public 
interest, by allowing the Corps to use its limited regulatory resources 
where they will do the most good. Moreover, in many cases when an ORA 
program develops to the extent that a PGP is appropriate, the

[[Page 18576]]

environmental protection from the PGP is greater than that offered by 
the Corps Regulatory Program without the PGP. Greater protection is 
achieved because the combined Federal, tribal, State, and/or local 
resources are available, and are more efficiently utilized to regulate 
potentially harmful activities, and to ensure that the terms and 
conditions of the PGP are enforced.
    d. Pursuant to Section 404 of the CWA, Section 10 of the RHA, and 
Section 103 of the MPRSA, the Corps has the authority to issue general 
permits (regional, programmatic, and nationwide) for any category of 
projects that are substantially similar in nature, and result in no 
more than minimal adverse effects on the environment, either 
individually or cumulatively. General permits are actively utilized in 
the Corps Regulatory Program. Each year the Corps authorizes more than 
20,000 projects under regional general permits and more than 60,000 
projects under nationwide general permits. Approximately 50 of the 
Corps existing general permits are PGPs that were developed in 
conjunction with an ORA. Terms and conditions of general permits, 
including PGPs, are just as enforceable as terms and conditions of 
individual permits, and compliance with a PGP ultimately depends upon 
whether an applicant adheres to the terms and conditions established by 
or incorporated in the PGP. The development of a PGP will reduce 
unnecessary duplication between the Corps and the ORA, which will allow 
the Corps to focus its limited resources on the remaining projects 
requiring individual authorization, enforcement, monitoring, 
compliance, etc. Corps workload reductions ultimately achieved through 
PGPs will facilitate more thorough and expeditious individual permit 
evaluations and increases in monitoring and enforcement of permit 
conditions. During the initial implementation of the PGP with the ORA, 
the Corps workload may not be reduced due to the period of time 
necessary for the Corps, Federal resource agencies, and the public to 
reach a level of confidence with the ORA's ability to implement the ORA 
program, in concert with the PGP. Although the Corps workload reduction 
values may not be achieved upon issuance of the PGP, the value of an 
improved process for applicants and enhanced coordination between the 
Corps and the ORA warrant pursuing a PGP. Ultimately, workloads should 
be reduced through effective use of a PGP.
    e. The Corps will, on a continuing basis and in coordination with 
ORAs and Federal and State resource agencies, identify opportunities to 
develop and establish PGPs based on Federal, tribal, State, and local 
programs that regulate projects in waters of the United States. The 
Corps district will be the point of contact with the ORA to develop a 
PGP. Corps districts should encourage other Federal and State resource 
agencies to provide information regarding potential opportunities for 
PGPs and to participate actively during the development and evaluation 
of PGPs.
    f. Some PGPs have been developed with an ORA to cover relatively 
broad regulatory programs. For example, the Corps has established a PGP 
in North Carolina covering projects regulated under that State's 
Coastal Zone Management Program, and in Massachusetts for projects 
regulated under the State's wetland regulatory program. In addition, 
the Corps has numerous PGPs based on regional or local programs, 
reservoir authorities, etc. These may cover projects regulated by 
county or regional regulatory programs administered under State 
authority. The Corps has developed PGPs with several counties in 
Florida for minor projects involving waterfront residential 
development. The Corps has also developed a PGP with the Tennessee 
Valley Authority that regulates certain projects within their 
reservoirs. As more tribal, State, and local governments establish 
wetland or aquatic resource regulatory programs, the Corps should 
increase its efforts to develop environmentally sound PGPs to reduce 
unnecessary duplication. One of the key benefits of PGPs is the 
flexibility they afford ORAs in terms of the projects regulated and the 
geographic scope of regulation. The ORA program should ideally cover 
all waters of the United States under Corps jurisdiction, which should 
simplify and reduce confusion in the application process for 
applicants. However, a PGP cannot be used to limit or to reduce Corps 
regulatory jurisdiction in any way.
    g. The Corps will develop PGPs only where the ORA program provides, 
with the necessary Corps conditions or review, the same or higher level 
of environmental protection as that provided by the overall Corps 
Regulatory Program. In addition to PGP-specific conditions and the 
requirements in section 3 below, there are inherent aspects of the 
Corps program that ensure continued strong protection of the 
environment under PGPs. First, all general permits are valid for a 
maximum of five years and must be reevaluated prior to reissuance. This 
ensures that the Corps will evaluate the operation of every PGP and the 
level of environmental protection it provides at least every five 
years. Second, the Corps retains the authority to modify, suspend, or 
revoke a PGP when the Corps district believes that appropriate 
protection is not being afforded to the environment or any other aspect 
of the public interest, or when the Corps concludes that adverse 
environmental effects are more than minimal, either individually or 
cumulatively. Third, and perhaps most important, the Corps always 
retains its authority to require an individual Corps permit in any 
given case for any particular project, even if the project otherwise 
meets all the requirements of the PGP. The Corps will exercise this 
authority when it concludes that the processing of an individual Corps 
permit is necessary to protect the environment or any other aspect of 
the public interest, or when impacts are more than minimal, either 
individually or cumulatively. Finally, the Corps retains the full range 
of its enforcement authority and options where it believes that a 
project does not comply with the terms or conditions of a PGP, 
regardless of whether the ORA authorized the project under its program.
    h. When the Corps and the ORA determine that the development of a 
specific PGP is warranted,\1\ the procedures for the development of 
regional general permits will be utilized (33 CFR Part 325). The Corps 
will initiate early coordination (e.g., a scoping meeting) with the 
ORA, Federal and State natural resource agencies, the State agency 
responsible for Section 401 of the CWA, the State Coastal Zone 
Management Agency, the State Historic Preservation Office, and/or any 
other appropriate agency, to discuss the proposed PGP and to identify 
potential concerns. Discussions regarding the development of a PGP will 
be led by the Corps with the ORA with which the PGP may be developed. 
Upon completion of the early coordination phase, the Corps will issue a 
public notice (for a minimum of 30 days) describing the proposed PGP, 
including any proposed terms and conditions under which specific 
projects may be authorized by the Corps under the terms and conditions 
of the PGP. Public hearings and/or public meetings will be held, as 
appropriate (33 CFR part 327). The Corps will evaluate and consider 
fully all comments from the resource agencies, the ORA, other 
appropriate agencies, and the public. A combined decision document, 
including National Environmental Policy Act

[[Page 18577]]

environmental documentation, the statement of findings, and Section 
404(b)(1) Guidelines analysis, as appropriate, will be prepared by the 
Corps pursuant to current regulations, policies, and guidance.
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    \1\ Funding for the development of the PGP may be available 
through the U.S. Environmental Protection Agency State Wetland Grant 
Program.
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    i. This Regulatory Guidance Letter (RGL) is not intended to require 
that any PGP that is already in effect and operating need necessarily 
be immediately revised to conform with this guidance. However, at the 
end of that PGPs five-year life (or sooner if appropriate), the 
district engineer should ensure that the PGP, if re-issued, will comply 
with this guidance, and make any necessary revisions.

2. Definitions

    Several terms are being defined for purposes of this guidance.
    a. The term other regulatory authority means any Federal, tribal, 
State, or local regulatory program other than the Corps Regulatory 
Program.
    b. The term preconstruction notification (PCN) means a notification 
by an applicant or ORA (See 3.b.(2) & (3)) to the Corps that is 
required prior to initiation of work by the applicant pursuant to the 
PGP. The PCN requirements generally include time frames for 
verification, expiration, coordination, and/or automatic verification 
(applicants should consider their projects automatically verified under 
the PGP when the established time frame has passed with no response 
from the Corps either verifying under the PGP or advising that a Corps 
standard permit will be required).
    c. The term verification means a written response to the applicant 
from the appropriate Corps district that indicates that a specific 
project has been authorized by the Corps under the terms and conditions 
of the PGP. The verification from the Corps will be in response to a 
request by an applicant or as part of a PGP condition requiring notice 
to the Corps and Corps verification before the applicant proceeds with 
a project. The Corps PGP verification procedures should be similar to 
those found in the Corps nationwide general permit procedures (33 CFR 
Sec. 330.6), and should state that the proposed project may proceed 
upon approval under the ORA program subject to the terms and conditions 
of the PGP, as well as any additional project specific special 
conditions provided in the Corps verification letter. In some cases it 
will be appropriate for the ORA to provide an applicant with a copy of 
the Corps PGP when providing the ORA permit decision.

3. Programmatic General Permit Requirements

    a. PGP criteria: All PGPs must be designed to meet the following 
five criteria:
    (1) every project authorized under a PGP can cause no more than 
minimal adverse environmental effects, individually or cumulatively, 
based on compliance with the terms and conditions of the PGP;
    (2) PGP implementation must simplify the evaluation process for 
applicants (preferably through one-stop-shopping) and reduce 
duplication between the Corps and the ORA, and must not increase the 
number of standard Corps permits;
    (3) a PGP must provide protection for aquatic resources at least 
equivalent to the overall Corps Regulatory Program (and sometimes will 
enhance environmental protection);
    (4) PGP implementation must not increase the Corps overall 
workload; and
    (5) every project authorized under a PGP must comply with all 
Federal environmental laws and must ensure that all relevant Federal 
interests will be protected (e.g., national defense, navigation, 
endangered species, etc.)
    b. The Corps review of specific permit applications under a PGP may 
vary. The Corps, with input from the ORA and the Federal resource 
agencies, will determine the appropriate level of case specific review 
and periodic overview regarding implementation of the PGP. Such review 
and overviews will vary depending on whether the PGP is developed for a 
broad or narrow \2\ ORA program. PGPs that are limited in nature and/or 
developed for narrow ORA programs may not require case specific review 
(category 1) so that only periodic overview by the Corps would be 
necessary as discussed in paragraph c. below. On the other hand, for 
PGPs proposing to cover a broad spectrum of projects, the Corps and ORA 
should strive to develop a multi-category approach to review and screen 
projects. The establishment of thresholds in each category may also 
allow the Corps to ``regionalize'' some nationwide general permits, 
including nationwide general permit number 26. The Corps and the ORA 
should also strive to use the minimal number of categories that are 
necessary to meet the goals of a PGP (e.g., the North Carolina PGP is 
established using categories 3 and 4 as described below). The 
thresholds of each category may vary, based upon regional factors, 
statewide factors, watershed factors, existing ORA program evaluations, 
etc. Some category thresholds may be developed based on the type of 
project, and others may be developed based on the size of the wetland 
acreage impact. For new ORA programs, category 1 reviews may not be 
appropriate until the performance of the ORA has been demonstrated.
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    \2\ A narrow program may include authority for a single type of 
project (e.g., piers, floats, fish ladders, etc.)
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    (1) Category 1: The first category typically would include those 
projects that would not require notification to the Corps (e.g., 
projects involving less than 5,000 square feet of fill within inland 
waterways or wetlands, including secondary impacts from drainage, 
flooding, or clearing, as described in the Massachusetts PGP).\3\ 
Category 1 must be limited to those projects where it is clear that 
such projects would result in no more than minimal environmental 
adverse effects, individually and/or cumulatively. While category 1 
thresholds may vary between PGPs, these thresholds should be 
established carefully so as to ensure that all category 1 projects 
clearly do not result in adverse environmental effects that are more 
than minimal after applying the terms and conditions of the PGP and, 
therefore, require no Federal review.
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    \3\ Examples are illustrative only and most are taken from the 
existing Massachusetts PGP. Actual limits for each category will 
vary and be determined during the development process of each PGP.
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    (2) Category 2: The second category would involve projects that 
require a PCN to the Corps and/or joint review of applications by the 
Corps and the ORA (e.g., projects involving impacts near a Federal 
navigation project). Category 2 projects are those that will result in 
no more than minimal adverse environmental effects, individually and/or 
cumulatively, but a PCN will be required to ensure that Corps interests 
or concerns, including Corps project real estate and navigation issues, 
are satisfied. Due to the exclusive, Corps-only nature of the concern 
under review, this category would not involve coordination with the 
other Federal resource agencies. A time frame, generally 30-45 days, 
should be established to resolve issues during the review process. For 
projects that do not pass the Corps and/or joint Corps and ORA 
screening, a standard permit application to the Corps would be 
necessary as described in category 4.
    (3) Category 3: The third category would involve a PCN to the Corps 
with Federal resource agency coordination to ensure that the project 
will result in no more than minimal adverse environmental effects, 
individually and/

[[Page 18578]]

or cumulatively (e.g., projects involving 5,000 square feet to one acre 
of impacts within land waterways or wetlands as described in the 
Massachusetts PGP). The ORA may also screen, during its verification 
process, for certain Federal interests (e.g., presence of federally 
threatened and/or endangered species). The ORA can provide this 
information to the Corps to aid in the Corps determination of 
compliance with the appropriate Federal law or regulation, and/or the 
Corps can use the information to coordinate with the appropriate 
Federal resource agencies. The PCN must also include a process by which 
Federal resource agency comments will be considered fully during a 
specified comment period (generally 30-45 days). A provision to allow 
the Federal resource agencies an opportunity to request review of a 
specific project (i.e., ``kick out'') under the Corps standard permit 
procedures should be included for category 3 PCN reviews. While Corps 
districts should consider this an automatic ``kick out'' requirement 
for category 3 projects, there may be cases where the Corps and the 
Federal resource agencies agree that a ``kick out'' is unnecessary 
based upon the safeguards afforded by the terms and conditions of the 
PGP. When requesting a ``kick out'' on a specific action, the Federal 
resource agencies must submit, during the PCN, a written rationale of 
their concerns and recommendations to satisfy those concerns. (The 
Corps, of course, retains its full authority to require a standard 
permit for any project, regardless of category.)
    (4) Category 4: The fourth category would involve projects that 
exceed established project and/or acreage thresholds of the PGP or 
other applicable general permit (e.g., projects involving adverse 
effects greater than 1 acre within inland waterways or wetlands as 
described in the Massachusetts PGP). Such projects would require 
standard permit evaluation by the Corps. Category 4 represents 
essentially the threshold limits of the PGP and not a category of 
verification under a PGP.
    c. Periodic Overviews: The Corps should conduct periodic reviews of 
the PGP to determine that the ORA program is continuing to provide 
environmental protection at least equivalent to that provided by the 
overall Corps Regulatory Program without the PGP, based upon the terms 
and conditions of the PGP, and to determine whether any modifications 
are necessary to improve the implementation of the PGP. The Corps may 
conduct an annual review of the PGP, may require annual reporting by 
the ORA of projects approved by the ORA under its program, or may 
conduct an overall review prior to expiration of the PGP for 
consideration in the reevaluation of the PGP for reissuance. This is 
especially important when an ORA program is new or has not established 
a performance record. Immediate Corps overview should occur when the 
ORA modifies its program (e.g., changes in State law, regulations, 
procedures) prior to the expiration of the PGP, to ensure that the 
terms and conditions of the PGP will not be affected. Corps overview 
should ensure that the use of the PGP has resulted in no more than 
minimal adverse environmental effects to aquatic resources, either 
individually and/or cumulatively. Overview should generally include a 
periodic review of a random subset of projects authorized under the PGP 
that had no reporting requirement to the Corps (e.g., category 1), as 
well as programmatic review of the procedures and conditions of the 
PGP. During development of the PGP, the Corps and ORA should determine 
what information must be collected to facilitate oversight reviews.
    d. Compliance with Federal laws:
    (1) Every project authorized under the PGP must comply with all 
applicable Federal laws, with special compliance review given to those 
Federal laws related to the Corps Regulatory Program (33 CFR 
Sec. 320.3). The Federal laws include, but are not necessarily limited 
to, the Endangered Species Act (ESA), the Wild and Scenic Rivers Act, 
the National Historic Preservation Act (NHPA), the Coastal Zone 
Management Act (CZMA), the CWA, Sections 9 and 10 of the RHA, and 
Section 103 of the MPRSA.
    (2) Projects authorized under a PGP should ensure compliance with 
Section 401 of the CWA and Section 307 of the CZMA, in accordance with 
33 CFR 330.4(c) and 330.4(d), respectively.
    (3) The Corps must coordinate with the ORA, the U.S. Fish and 
Wildlife Service, and the National Marine Fisheries Service where 
appropriate, regarding how the PGP will implement the mandates of the 
ESA. The Corps must consult with the ORA and the State Historic 
Presrvation Office to ensure that the PGP is issued in compliance with 
the NHPA. The PGP should be conditioned with the same language found in 
the Corps Federal Register/Code of Federal Regulations citation 
regarding the nationwide general permit program for the following three 
conditions: Wild and Scenic Rivers, Endangered Species, and Historic 
Properties. Upon the reissurance of a PGP, the Corps will ensure that 
the current Federal Register/Code of Federal Regulations citation is 
used for the three conditions.
    e. Public Notice:
    (1) The Corps must ensure that the general public has a reasonable 
opportunity to participate fully in the development and re-evaluation 
of every PGP through our procedures in 33 CFR Part 325.
    (2) The PGP must also ensure that interested members of the public 
are given notice of projects to be authorized by the Corps under the 
terms and conditions of the PGP, so that their comments can be 
submitted to the ORA and/or to the Corps. Specifically, the ORA must 
have, or establish, a reasonable public notification process for 
projects to be authorized by the Corps under the PGP. While it does not 
have to be identical to the Corps public involvement process, the ORA 
procedures cannot have the effect of substantially reducing the ability 
of the public to participate in the regulatory process, in comparison 
with the public notice and comment procedures provided by the Corps 
Regulatory Program without the PGP.
    The PGP may also be developed for projects where the ORA has 
established a ``general permit program or exemptions'', so long as the 
ORA has provided an opportunity for the public to participate in the 
original development, and periodic re-evaluation of the ORA general 
permits or exemptions.
    f. Consistency with other General Permits: One objective of PGPs is 
to reduce the complexity of the Corps Regulatory Program. In this 
regard, it may be appropriate to suspend or revoke some or all of the 
existing nationwide or regional general permits when the projects 
authorized by such Corps permits will be covered by the PGP.
    g. Enforcement: The Corps, subject to the discretion of the 
district engineer, will enforce project specific special and general 
PGP terms and conditions to ensure that requisite environmental and 
public interest safeguards are met. The Corps may develop procedures 
with the ORA for the resolution of noncompliance of projects authorized 
by the Corps under a PGP.
    4. This guidance expires (pending), unless revised sooner or 
rescinded.

    For the Commander:
signature pending
Stanley G. Genega,
Major General, USA, Director of Civil Works.
[FR Doc. 96-10334 Filed 4-25-96; 8:45 am]
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