Forest Service, USDA.
Notice of proposed directives; request for public comment.
The Forest Service proposes to revise Forest Service Manual (FSM 2500) and Handbook (FSH 2509.19) directives for best management practices (BMPs) for water quality protection on National Forest System (NFS) lands to establish a National system of BMPs and associated monitoring protocols and require their use on NFS lands in order to meet existing mandates under the Federal Water Pollution Control Act Amendments of 1972 (Clean Water Act) (Pub. L. 92-500) and corresponding State laws. The National system of BMPs would provide a systematic approach to protect water quality from land and resource management activities taking place on National forests and grasslands and utilize suitable monitoring, and established Regional, State, Tribal, and local BMPs. These proposed revisions would help ensure the consistent use and monitoring of BMPs and provide appropriate analyses for evaluating BMP implementation and effectiveness on a regular basis. Public comment is invited and will be considered in development of the final directives.
Comments must be received by July 7, 2014.
Submit comments electronically by following the instructions at the federal eRulemaking portal at http://www.regulation.gov. Comments may also be submitted by electronic mail to email@example.com or by mail to BMP Directive Comments, USDA Forest Service, Attn: Michael Eberle —WFWARP, 201 14th St. SW., Washington, DC 20250. If comments are submitted electronically, duplicate comments should not be sent by mail. Please confine comments to issues pertinent to the proposed directive, explain the reasons for any recommended changes, and, where possible, reference the specific section and wording being addressed. All comments, including names and addresses when provided, will be placed in the record and will be made available to the public for review and copying. The public may inspect the comments received on the proposed directive at the USDA Forest Service Headquarters, located in the Yates Federal Building at 201 14th Street SW., Washington, DC, on regular business days between 8:30 a.m. and 4:30 p.m. Those wishing to inspect the comments are encouraged to call ahead at (202) 205-1205 to facilitate entry into the building.
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FOR FURTHER INFORMATION CONTACT:
Michael Eberle, Watershed, Fish, Wildlife, Air and Rare Plants Staff at (202) 205-1093. Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service at (800) 877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Daylight Time, Monday through Friday.
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1. Background and Need for the Proposed Directive
The Clean Water Act directs States and Tribes to develop BMPs to control water pollution from nonpoint sources. The Forest Service has a long history of using BMPs on NFS lands in cooperation with Federal, State, Tribal, and local water quality agencies. However, there has been no systematic, National approach that provides for consistent, credible documentation for BMP implementation and effectiveness with regard to land and resource management activities on NFS lands.
The Forest Service recently placed renewed emphasis on water resources and subsequently developed several new initiatives for watershed protection and restoration which involve accelerated restoration, climate change, integrated resource management, fire-adapted ecosystems, and the Agency-wide water framework. These efforts clarify the Forest Service need to improve performance and accountability in BMP implementation and effectiveness. The need for a more systematic approach to BMPs was incorporated into the 2012 Land Management Planning Rule, which includes a provision requiring the Agency to establish requirements for National water quality BMPs in its directive system (36 CFR Part 219.8(a)(4)).
The Forest Service manages 193 million acres of Federal lands, much of which are located in the headwaters and Start Printed Page 25825recharge areas of the Nation's water supplies. NFS lands provide sources of drinking water for people in 42 states and the Commonwealth of Puerto Rico. Thus, the Forest Service plays a critical role in the maintenance of water resource integrity associated with NFS lands and plans to take an active role, in cooperation with the States and Tribes, in the comprehensive management of water resources on those lands. The Washington Office, Watershed, Fish, Wildlife, Air and Rare Plants staff propose to amend the Forest Service Manual (FSM) 2532 and adopt Forest Service Handbook (FSH) 2509.19 as a key component of this effort.
The Forest Service National BMP Program is a key resource management initiative in the agency. The Forest Service has successfully implemented BMPs for many years, often using individual State-by-State approaches and documentation requirements. However, within the last decade, it has become apparent that the lack of a National, systematic approach to document BMP implementation and effectiveness limits the Agency's ability to respond adequately to water quality concerns both on and adjacent to NFS lands. The Forest Service recognizes a need to establish a Nationally-consistent approach to address BMP implementation and effectiveness to clearly document the Agency's efforts to protect water resources. The establishment of clear national direction for BMP use and monitoring, for implementation on all NFS lands, would meet this need.
NFS lands were set aside or acquired, at least in part, for the protection and management of water resources pursuant to statutory direction from Congress and the Forest Service recognizes the need to address water quality protection in a comprehensive manner. The Agency also recognizes that States, Tribes, and local governments also have responsibilities for water quality and that the management of water resources needs to be conducted cooperatively with those entities to be successful. Many States, Tribes, local governments, Federal Agencies, Forest Service Regions, and other entities have well-developed BMP programs that have been successfully implemented for many years. The Forest Service recognizes the importance of leveraging local knowledge to effectively protect water quality. Applicable State, Tribal, and local requirements and BMP programs, Forest Service regional guidance, and unit Land Management Plans are expected to provide the criteria for site-specific BMP prescriptions. This approach provides for the integration of the National program with existing BMPs.
The Forest Service currently provides general direction to use BMPs in FSM 2530, entitled “Water Resources Management” (FSM 2532). The revisions to FSM 2532 would require the use of the Agency's National Core BMPs and National Core BMP Monitoring Protocols detailed in Agency technical guides FS-990a (April 2012) and FS-990b (in development), respectively. The technical guides can be found at: http://www.fs.fed.us/biology/resources/pubs/watershed/FS_National_Core_BMPs_April2012.pdf. The new FSH 2509.19 formally sets the requirements for the National Core BMPs and Monitoring Protocols. The proposed revisions to FSM 2532 and proposed new FSH 2509.19 are being published for public notice and comment as required by the National Forest Management Act (16 USC 1612(a)) because they establish new policies and procedures for water resources management on NFS lands. The proposed directives can be found at: http://www.fs.fed.us/biology/watershed/index.html.
2. Section-by-Section Analysis of Proposed Changes to FSM 2532, Water Quality Management
Summary of Proposed Changes
Under the proposed directives:
- The National Best Management Practices Program would be formalized as the method for control of non-point sources of water pollution to achieve established Federal, State, Tribal or local water quality requirements.
- Implementation of the program would be required on all NFS lands.
- Forest Service staff roles and responsibilities would be modified to emphasize the establishment, implementation, and maintenance of the National BMP Program.
- Definitions for Best Management Practices for Water Quality (BMPs), National Core BMPs, National Core BMP Monitoring Protocols, and Reporting Period would be added for clarity.
- References would be added for guidance.
Some typographical errors would be corrected and necessary numbering changes would be made.
This section would be modified to add a reference to the legal authority for the establishment of agency requirements for BMPs for water quality.
This section would be modified to address the policies for water resource management on NFS lands. Paragraph 1 would be modified to provide direction for establishing and applying the National BMP Program to all land and resources management activities to achieve all applicable water quality goals.
This section would be modified to align the duties of the specified Forest Service staff with the modifications to the water quality management manual. The modifications would emphasize the establishment, implementation, and maintenance of the National BMP Program.
This section would be modified to include four new definitions of technical terms used in the proposed directives. Definitions would be added for “Best Management Practices for Water Quality (BMPs),” “National Core BMPs,” “National Core BMP Monitoring Protocols,” and “reporting period,” because they are key terms used in the proposed directives to explain the new National BMP Program. These definitions explain that the National Core BMPs and associated Monitoring Protocols are nationally standardized and apply to the broad range of activities that occur on all NFS lands.
This proposed section would reference two Forest Service technical guides that provide details on the National Core BMPs and the associated monitoring protocols (National Best Management Practices for Water Quality Management on National Forest System Lands, Volume 1: National Core BMPs, FS-990a, and Volume 2: National Core BMP Monitoring Protocols, FS-990b).
2532.4—National BMP Program
Proposed Paragraph 1
The paragraph would be modified to contain a general description of the National BMP Program. Proposed paragraph 1 would explain that the National BMP Program is consistent with existing water quality programs and will be standardized to be nationally consistent and use an adaptive management approach to improve Agency compliance with the Clean Water Act and State and Tribal water quality programs.Start Printed Page 25826
Proposed Paragraph 2
Proposed paragraph 2 would establish the various parts of the National BMP Program and direct the use of the program on all NFS lands.
Proposed Paragraph 3
Proposed paragraph 3 would explain how the National Core BMPs are intended to integrate with existing State, Tribal, or local BMPs to meet the objectives of the program.
3. Section-by-Section Analysis of Proposed Changes to FSH 2509.19, National Best Management Practices
2509.19—National BMP Program
This proposed chapter would establish the authority, objectives, policy, responsibilities, definitions, and references pertinent to the National BMP Program.
This proposed section would reference both the FSM 2501 and the Land Planning regulation (36 CFR Part 219.8(a)(4)) for the authorities for water quality management on NFS lands.
This proposed section would establish the primary objective of the National BMP Program Handbook (Handbook) which is to create a nationally consistent approach to water quality protection for land and resource management activities on NFS lands.
Proposed Paragraph 1
Paragraph 1 would establish the objective of using BMPs to protect soil, water quality, and riparian resources to meet the intent of laws, Executive Orders, and USDA directives.
Proposed Paragraph 2
Paragraph 2 would establish the objective of providing a consistent process for rating and reporting the implementation and effectiveness of BMPs.
Proposed Paragraph 3
Paragraph 3 would establish the objective of applying adaptive management strategies to improve water quality protection if BMP implementation or effectiveness problems are found.
Proposed Paragraph 1
This proposed section would provide the specific policy statements for the National BMP Program. Paragraph 1 would provide for a consistent national approach for the application of nonpoint source pollution management strategy on NFS lands.
Proposed Paragraph 2
Paragraph 2 would provide for adaptive management principles to be incorporated into the BMP Program.
Proposed Paragraph 3
Paragraph 3 would establish the use of National Core BMPs in land management activities as the method to meet established water quality goals. Paragraph 3a would direct the use of applicable direction or guidance to develop site-specific BMP prescriptions. Paragraph 3b would direct the proper installation and maintenance of appropriate site-specific BMP prescriptions to maintain or improve water quality.
Proposed Paragraph 4
Paragraph 4 would establish the use of National Core BMP Monitoring Protocols and reporting system. This paragraph would also provide guidance for monitoring BMP implementation and effectiveness and associated data management.
Proposed Paragraph 5
Paragraph 5 would establish the use of BMP monitoring results to inform adaptive management processes, improve administrative procedures, and enhance coordination with other agencies.
Proposed Paragraph 6
Paragraph 6 would provide for the sharing of BMP monitoring findings with partners.
This proposed paragraph would reference FSM 2532.04 for the responsibilities that apply to this section.
This proposed section would include definitions of terms used in the proposed directive. Definitions would be added for “Adaptive Management,” “Adaptive Monitoring,” “Aquatic Management Zone, ” “Beneficial Use,” “BMP Effectiveness Monitoring,” “BMP Implementation Monitoring,” “Regional BMP Supplement,” “Reporting period,” “Site-specific BMP prescriptions,” “Water quality,” and “Waterbody.”
This section would provide three additional references to those listed in the references section in the Water Quality Management Manual (FSM 2532.06).
Chapter 10—National Core Best Management Practices
This proposed chapter would establish direction for development of the National Core BMPs.
This proposed section would provide specific policy statements for the National Core BMPs.
Proposed Paragraph 1
Paragraph 1 would provide the purpose for the National Core BMPs.
Proposed Paragraph 2
Paragraph 2 would describe the National Core BMPs primary function, how they relate to existing State, Tribal, and local BMPs, and how they can be utilized to protect water quality.
2509.19 11—Resource Categories for National Core BMPs
This proposed section would introduce resource management categories to facilitate the organization and development of the National Core BMPs.
2509.19 11.1—General Planning Activities
This proposed section would direct that the National Core BMPs provide guidance for the appropriate BMPs to use in land management planning and project planning.
2509.19 11.2—Aquatic Ecosystems Management Activities
This proposed section would direct that the National Core BMPs provide guidance for the appropriate BMPs to use while restoring aquatic ecosystems and working in or near waterbodies.
2509.19 11.3—Chemical Use Management Activities
This proposed section would direct that the National Core BMPs provide guidance for the appropriate BMPs to use while working with chemical products.
2509.19 11.4—Facilities and Non-Recreation Special Uses Management Activities
This proposed section would direct that the National Core BMPs provide guidance for the appropriate BMPs to use while constructing, operating, and restoring facilities and facility sites, and other non-recreation special uses.
2509.19 11.5—Wildland Fire Management Activities
This proposed section would direct that the National Core BMPs provide guidance for the appropriate BMPs to Start Printed Page 25827use during wildland fire activities, while not compromising firefighter and public safety.
2509.19 11.6—Minerals Management Activities
This proposed section would direct that the National Core BMPs provide guidance for the appropriate BMPs to use in minerals management.
2509.19 11.7—Rangeland Management Activities
This proposed section would direct that the National Core BMPs provide guidance for the appropriate BMPs to use in rangeland management.
2509.19 11.8—Recreation Management Activities
This proposed section would direct that the National Core BMPs provide guidance for the appropriate BMPs to use while constructing and operating developed recreation sites and managing dispersed recreation uses.
2509.19 11.9—Road Management Activities
This proposed section would direct that the National Core BMPs provide guidance for the appropriate BMPs to use while performing construction, operations, and maintenance of the NFS road system.
2509.19 11.10—Mechanical Vegetation Management Activities
This proposed section would direct that the National Core BMPs provide guidance for the appropriate BMPs to use while performing mechanical vegetation treatments.
2509.19 11.11—Water Uses Management Activities
This proposed section would direct that the National Core BMPs provide guidance for the appropriate BMPs to use during the construction and operation of water use developments and associated infrastructure.
2509.19 12—Focus National Core BMPs on Water Quality
This proposed section would provide guidance on the primary intent, focus, and use of the National Core BMPs.
2509.19 13—General Nature of the National Core BMPs
This proposed section would describe the use and applicability of the National Core BMPs and how to use site-specific BMPs prescriptions to address a variety of conditions and requirements. National Core BMPs may be supplemented to fulfill Regional needs.
2509.19 14—Source Documents for National Core BMPs
This proposed section would describe an array of documents that can be used to develop the National Core BMPs to protect water quality.
2509.19 15—Maintenance of the National Core BMPs
This proposed section would direct the use of adaptive management principles to modify and update National Core BMPs and resource management practices and direct a review interval of at least once every five years, to ensure the National Core BMPs and site-specific BMP prescriptions are current and effective.
Chapter 20—National Core Best Management Practices Implementation
This proposed chapter would provide policy and direction for the incorporation of the National Core BMPs into Agency planning processes.
This proposed section would provide direction for establishing a process for the use of National Core BMPs and would describe when the planning-level National Core BMPs should be used.
2509.19 21—Land Management Planning
This proposed section would require the establishment of plan components that address National Core BMPs that are consistent with Forest Service planning regulations. This section would also require water quality-related plan components to be specific to the administrative unit and to meet or exceed applicable requirements and regulations.
2509.19 22—Project Planning
This proposed section would require the identification of appropriate National Core BMPs early in the planning process and would require the documentation of site-specific BMP prescriptions.
2509.19 23—Project Implementation
This proposed section would require the inclusion and documentation of the site-specific BMP prescriptions throughout the project implementation process.
Chapter 30—National Core Best Management Practices Monitoring
This proposed chapter would establish direction for the development of the National Core BMP Monitoring Protocols.
This proposed section would provide direction for the development and maintenance of National Core BMP Monitoring Protocols. National Core BMP Monitoring Protocols would evaluate the implementation and effectiveness of the National Core BMPs, utilize adaptive management principles to improve project implementation, and utilize adaptive monitoring principles to improve monitoring protocols.
2509.19 31—National Core BMP Monitoring Structure
This proposed section would direct the development of a consistent national monitoring structure to assess the implementation and effectiveness of National Core BMPs and their performance at multiple scales.
This proposed section would describe the primary purposes of National Core BMPs monitoring.
2509.19 31.2—Monitoring Objectives
This proposed section would provide guidance on the objectives of National Core BMPs monitoring which is to use the standardized National Core BMP Monitoring Protocols to evaluate the implementation and effectiveness of the prescribed BMPs.
2509.19 31.3—National Sampling Design
This proposed section would provide guidance on the establishment of a national sampling design to evaluate implementation and effectiveness monitoring of the National Core BMPs in each resource category for the established reporting period.
2509.19 32—National Core BMP Monitoring Protocols
This proposed section would provide direction for the development of the National Core BMP Monitoring Protocols.
2509.19 32.1—Protocol Goals
This proposed section would describe the goals of the National Core BMP Monitoring Protocols and broadly assess outcomes to maximize monitoring and data collection efficiency, and document key information regarding implementation and effectiveness at multiple scales.
2509.19 32.2—Protocol Quality Assurance and Quality Control
This proposed section would direct the use of quality assurance and quality control measures throughout the monitoring process.Start Printed Page 25828
2509.19 32.31—Population Development and Site Selection
This proposed section would direct that each protocol provides a process for the establishment of population and final sample pool of sites monitoring.
2509.19 32.31a—Randomly Selected Sites
This proposed section would explain the intent to select random sample sites from the final sample pool of sites to be monitored to achieve National Core BMP Monitoring Protocols goals.
2509.19 32.31b—Non-Randomly Selected Sites
This proposed section would allow for targeted monitoring to meet local or regional management goals.
2509.19 32.4 Monitoring Team
This proposed section would direct protocols to provide guidance on the composition of an interdisciplinary review team needed to monitor the National Core BMPs within the corresponding protocol.
2509.19 32.5—Implementation Monitoring
This proposed section would direct protocols to provide guidance for a two-step process for BMP implementation monitoring.
2509.19 32.51—Implementation Monitoring Questions
This proposed section would direct protocols to include implementation questions to determine if appropriate BMPs are being used and applied as planned in land and resource management activities.
2509.19 32.52—Timing of Implementation Monitoring
This proposed section would direct protocols to provide guidance on when the implementation monitoring portion of the evaluation should be performed relative to the completion of the activity being monitored.
2509.19 32.53—Implementation Monitoring Document Review
This proposed section would direct that the protocols provide guidance on the type of project documents to be examined for site-specific BMP prescriptions and the timing of the document review.
2509.19 32.54—Field Review of Implementation Monitoring
This proposed section would direct protocols to provide guidance for defining the area at the project location to be evaluated for implementation of National Core BMPs and for defining criteria to rate how well BMP prescriptions are applied.
2509.19 32.6—Effectiveness Monitoring
This proposed section would direct that the protocols provide guidance on water pollutant evidence assessment when leaving the project area and entering the aquatic management zone or nearby waterbody.
2509.19 32.61—Effectiveness Monitoring Questions
This proposed section would direct protocols to include effectiveness questions to determine whether the BMPs, as implemented, protect water quality.
2509.19 32.62—Timing of Effectiveness Monitoring
This proposed section would direct that the protocols provide guidance on the timing of effectiveness monitoring relative to the completion of the activity being monitored. In all cases, effectiveness monitoring would occur after implementation monitoring at the sites have been completed.
2509.19 32.63—Field Review of Effectiveness Monitoring
This proposed section would direct protocols to provide guidance on defining the area at the project location to be evaluated for BMP effectiveness and how BMP effectiveness would be evaluated.
2509.19 32.7—Protocol Maintenance
This proposed section would provide guidance on the timing and methods used for to update and maintain the National Core BMP Monitoring Protocols to ensure they are effective tools for gathering BMP monitoring information.
2509.19 33—Evaluating Outcomes
This proposed section would provide guidance for the establishment of a method for each National Core BMP Monitoring Protocol to separately rate implementation and effectiveness of the National Core BMPs evaluated by that protocol.
2509.19 33.1—Implementation Outcomes
This proposed section would provide the criteria for implementation outcomes ratings of “Fully Successful,” “Mostly Successful,” “Marginally Successful,” or “Not Successful”. If no site-specific BMP prescriptions were developed or identified, a “No BMPs” option is available.
2509.19 33.2—Effectiveness Outcomes
This proposed section would provide the criteria for effectiveness outcome ratings of “Effective,” “Moderately Effective,” or “Not Effective”.
2509.19 33.3—Combined Evaluation Rating
This proposed section would provide a matrix to determine a combined implementation and effectiveness rating for a BMP evaluation by assigning a rating of “Excellent,” “Good,” “Fair,” “Poor,” or “No Plan” for a BMP evaluation.
2509.19 34—Data Management
This proposed section would provide guidance on the development and use of data management capability within the agency corporate information management system for National Core BMP monitoring data.
2509.19 35—Monitoring Report
This proposed section would provide guidance on the evaluation of the national BMP monitoring results, the development of reports, and how these results should be used at multiple scales.
The directives revise the administrative policies and procedures for conducting Water Quality Management activities on National Forest System lands. Agency regulations at 36 CFR 220.6(d)(2) (73 FR 43093) exclude from documentation in an environmental assessment or impact statement “rules, regulations, or policies to establish Service-wide administrative procedures, program processes, or instructions.” The Agency has concluded that these directives fall within this category of actions and that no extraordinary circumstances exist which would require preparation of an environment assessment or environmental impact statement.
The directives have been reviewed under USDA procedures and E.O. 12866 on regulatory planning and review. The Office of Management and Budget (OMB) has determined that the directives are non-significant for purposes of E.O. 12866. This action to clarify Agency direction will not have an annual effect of $100 million or more on the economy, nor will it adversely affect productivity, competition, jobs, the environment, public health and safety, or State or local governments. This directive will not interfere with an Start Printed Page 25829action taken or planned by another agency, nor will it raise new legal or policy issues. Finally, the directive will not alter the budgetary impact of entitlement, grant, user fee, or loan programs or the rights and obligations of beneficiaries of those programs.
The directives have been considered in light of Executive Order 13272 regarding proper consideration of small entities and the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), which amended the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). A small entities flexibility assessment has determined that this action will not have a significant economic impact on a substantial number of small entities as defined by SBREFA. The directives are focused on National Forest System Water Quality Management activities and impose no requirements on small or large entities.
Federalism and Consultation and Coordination With Indian Tribal Governments
The Agency has considered the directives under the requirements of E.O. 13132 on federalism and has determined that the directives conform with the federalism principles set out in this Executive order; will not impose any compliance costs on the states; and will not have substantial direct effects on the states, the relationship between the Federal Government and the states, or the distribution of power and responsibilities among the various levels of government. Therefore, the Agency has determined that no further assessment of federalism implications is necessary.
Moreover, the proposed directives do not have tribal implications as defined by E.O. 13175, entitled “Consultation and Coordination with Indian Tribal Governments,” and, therefore, advance consultation with Tribes is not required.
No Taking Implications
The Agency has analyzed the directives in accordance with the principles and criteria contained in E.O. 12630. The Agency has determined that the directives do not pose the risk of a taking of private property.
Civil Justice Reform
The directives have been reviewed under E.O. 12988 of February 7, 1996, “Civil Justice Reform”. At the time of adoption of the directives, (1) all State and local laws and regulations that conflict with the directives or that impede full implementation of the directives were preempted; (2) no retroactive effect was given to the directives; and (3) administrative proceedings are not required before parties can file suit in court to challenge its provisions.
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995, (2 U.S.C. 1531-1538), the Agency has assessed the effects of the directives on State, local, and Tribal governments and the private sector. The directives will not compel the expenditure of $100 million or more by any State, local, or Tribal government or anyone in the private sector. Therefore, a statement under section 202 of the act is not required.
The Agency has reviewed the directives under E.O. 13211 of May 18, 2001, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.” The Agency has determined that the directives do not constitute a significant energy action as defined in the Executive Order.
Controlling Paperwork Burdens on the Public
The directives do not contain any additional record-keeping or reporting requirements or other information collection requirements as defined in 5 CFR part 1320 that are not already required by law or not already approved for use and therefore imposes no additional paperwork burden on the public. Accordingly, the review provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and its implementing regulations at 5 CFR part 1320 do not apply.
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Dated: April 30, 2014.
Thomas. L. Tidwell,
Chief, Forest Service.
[FR Doc. 2014-10363 Filed 5-5-14; 8:45 am]
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