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Rulemaking Procedures--Federal Motor Carrier Safety Regulations; Treatment of Confidential Business Information

American Government Special Collections Reference Desk

American Government

Rulemaking Procedures--Federal Motor Carrier Safety Regulations; Treatment of Confidential Business Information

T.F. Scott Darling III
Federal Motor Carrier Safety Administration
June 10, 2015

[Federal Register Volume 80, Number 111 (Wednesday, June 10, 2015)]
[Rules and Regulations]
[Pages 32861-32865]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-14181]



Federal Motor Carrier Safety Administration

49 CFR Part 389

[Docket No. FMCSA-2015-0168]
RIN 2126-AB79

Rulemaking Procedures--Federal Motor Carrier Safety Regulations; 
Treatment of Confidential Business Information

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Final rule.


SUMMARY: FMCSA amends its Rulemaking Procedures by adding a new section 
establishing the standards and procedures that the Agency will use 
regarding the submission of certain

[[Page 32862]]

confidential commercial or financial information that is referred to in 
this rule as ``confidential business information'' (CBI). This rule 
also sets forth the procedures for asserting a claim of confidentiality 
by parties who voluntarily submit CBI to the Agency in connection with 
a notice-and-comment rulemaking and in a manner consistent with the 
standards adopted in today's rule.

DATES: This final rule is effective June 10, 2015.

FOR FURTHER INFORMATION CONTACT: Kim McCarthy, Office of Chief Counsel, 
Regulatory Affairs Division (MC-CCR), Federal Motor Carrier Safety 
Administration, 1200 New Jersey Ave. SE., Washington, DC 20590; by 
telephone at 202-366-0834. If you have questions on viewing or 
submitting material to the public docket, contact Docket Services, 
telephone (202) 366-9826.


Legal Basis for Rulemaking

    Section 552(b)(4) of the Freedom of Information Act (FOIA) exempts 
from public disclosure ``trade secrets and commercial or financial 
information obtained from a person and privileged or confidential''. 5 
U.S.C. 552(b)(4). There is a substantial body of Federal case law 
interpreting and upholding this exemption, commonly referred to as 
``FOIA Exemption 4.'' An underlying theme of the FOIA Exemption 4 cases 
is that the exemption is ``intended to protect the government as well 
as the individual,'' including advancing the efficiency of government 
operations. National Parks & Conservation Ass'n v. Morton, 498 F.2d 
765, 767 (D.C. Cir. 1974).
    Like other Federal agencies, FMSCA has adopted procedural rules 
implementing the FOIA. 49 CFR 389.7. Agencies' procedures for exempting 
CBI from disclosure under FOIA vary. In today's rule, FMCSA establishes 
procedures that the Agency will use for the submission of certain CBI 
that is presumptively exempt from public disclosure under FOIA 
Exemption 4. These procedures apply to information voluntarily 
submitted to the Agency in response to a notice-and-comment rulemaking 
and that falls within the designated classes of information established 
in accordance with the rule.
    Today's rule incorporates the confidentiality standard for CBI 
adopted by the U.S. Court of Appeals for the D.C. Circuit in Critical 
Mass Energy Project v. NRC, 975 F.2d 871 (D.C. Cir. 1992) (en banc), in 
which the court distinguished between information the government 
compels and that which is voluntarily submitted to help further 
government functions, such as rulemakings. The court held that 
information voluntarily submitted to the government should be treated 
as confidential under FOIA Exemption 4 as long as the submitter can 
show that it is not customarily released to the general public. Id. at 
    This regulation is published as a final rule and effective on June 
10, 2015. Under the Administrative Procedure Act (APA), agencies may 
promulgate final rules only after providing notice and an opportunity 
for public comment. 5 U.S.C. 553(b) and (c). This requirement does not 
apply, however, to ``interpretative rules, general statements of 
policy, or rules of agency organization, procedure or practice.'' 5 
U.S.C. 553(b)(A) (emphasis added). Today's final rule establishes 
procedures for submitting CBI, and FMCSA therefore determines that 
notice and comment is unnecessary. In addition, this rule makes no 
substantive changes to the motor carrier safety regulations and is 
therefore not a substantive rule subject to the APA's requirement that 
publication be made at least 30 days before its effective date. 5 
U.S.C. 553(d).
    Before prescribing any regulations, FMCSA must also consider their 
benefits and costs. 49 U.S.C. 31136(c)(2)(A) and 31502(d). Those 
factors are discussed in this final rule.

Background Information

    FMCSA has a recurring occasional need to receive CBI in order to 
improve the Agency's ability to promulgate regulations that: (1) Are 
evidence-based; (2) take into account the operational and financial 
realities of regulated parties; and (3) result in improved safety for 
motor carriers, drivers, and the general public. Historically, FMCSA 
has received limited amounts of usable data submitted as part of the 
rulemaking comment process, even in response to specific requests for 
data on particular topics. FMCSA believes that the procedures and 
confidentiality protections set forth in today's rule will optimize the 
Agency's ability to receive necessary CBI in response to notice-and-
comment rulemakings.
    The Agency recognizes the need to add confidentiality assurances to 
commenters who provide CBI. Today's rule balances the interests of 
FMCSA, persons who choose to submit CBI to the Agency, and the public. 
First, this rule responds to FMCSA's need for pertinent data by 
facilitating its ability to obtain information necessary for the 
development of particular rulemakings. Today's rule authorizes the 
FMCSA Administrator to define classes of information, which are 
presumptively confidential, based on the confidentiality standard for 
voluntarily submitted information adopted by the D.C. Circuit in 
Critical Mass, as noted above. Under the procedures adopted, the 
specific items of information included within a class will be 
determined on an as needed basis, depending on the informational 
requirements of each particular rulemaking. Because the Agency will 
invite the submission of CBI that is specifically calibrated to inform 
the rulemaking, FMCSA believes this procedure will significantly 
enhance the efficacy of responsive comments and, ultimately, the final 
    Second, by making confidential class determinations, this rule will 
alleviate the burden on commenters to submit individual claims for 
confidential treatment, as well as the Agency's burden to evaluate 
requests for confidential treatment submitted on an individual basis.
    Third, this rule responds to the interests of commenters who wish 
to protect their submitted information from disclosure in the public 
domain because it is confidential within the meaning of the FOIA. It 
establishes the standards and procedures by which submitters of CBI 
must substantiate their request for confidential treatment. Today's 
rule also states that, if those qualifying requirements are met and 
maintained, the Agency will not disclose the CBI in the public docket 
or in response to a FOIA request.
    Fourth, this rule responds to the public's interest in transparency 
and disclosure in the rulemaking process. It requires FMCSA to describe 
through summarization, aggregation, or some other de-identified means, 
any CBI submitted in accordance with these procedures and on which the 
Agency relies in developing a final rule. FMCSA must also explain how 
such CBI assisted in formulating that final rule.
    Finally, this rule permits the public disclosure of information 
initially designated as confidential by the submitter if the Agency 
finds that the submitter fails to meet or maintain the confidentiality 
criteria established in this rule. In addition, to the extent that 
commenters who choose to submit CBI in accordance with the adopted 
procedures also wish to provide non-confidential information, their 
comments must be segregated and filed in the rulemaking's public 

[[Page 32863]]

Regulatory Analyses

Executive Order 12866 (Regulatory Planning and Review), Executive Order 
13563 (Improving Regulation and Regulatory Review), and DOT Regulatory 
Policies and Procedures
    FMCSA considered the impact of this procedural rule under Executive 
Orders 12866 and 13563 and DOT's regulatory policies and procedures (44 
FR 11034; February 26, 1979). The Agency has determined this rule does 
not constitute a significant regulatory action within the meaning of 
Executive Order 12866, as supplemented by Executive Order 13563, or 
DOT's regulatory policies and procedures.
    FMCSA expects that the economic impact of this rule will be 
minimal, as it merely codifies the procedures by which CBI may be 
voluntarily submitted to FMCSA in connection with notice-and-comment 
rulemakings. This rule does not alter the confidentiality threshold 
established by FOIA Exemption 4, as currently reflected in the FOIA 
procedures of both FMCSA (49 CFR 389.5(b)) and the DOT (49 CFR part 7). 
It is adopted to address the concerns of potential submitters of CBI as 
well as the Agency's need to receive certain commercial and financial 
information that is eligible for confidential treatment under FOIA 
Exemption 4.
    Today's rule imposes a minimal additional burden on parties who 
elect to submit CBI to FMCSA since they will now be required to 
complete a standardized affidavit certifying that the submitted 
information meets the confidentiality threshold established by FOIA 
Exemption 4. FMCSA expects that the amount of time and resources that 
CBI submitters will devote to completing the standardized CBI affidavit 
will be minimal. This rule does not change the current burden imposed 
on submitters to ensure that the information they designate as 
confidential meets the established FOIA criteria.
    The Agency may realize additional costs associated with its use of 
resources to review submitted CBI, subjected to request for public 
disclosure under the FOIA, in order to confirm that the information is 
withheld from the public in accordance with FOIA Exemption 4. We expect 
the increase in the use of Agency resources devoted to FOIA review will 
be minimal. Although this rule does not change the Agency's current 
role in reviewing confidential information subject to request for 
disclosure under the FOIA, we anticipate that the volume of FOIA 
requests may increase due to the fact that FMCSA will specifically 
solicit CBI for submission under informational categories established 
in accordance with today's final rule. Today's rule is intended to 
increase the amount of CBI submitted to the Agency. FMCSA expects any 
additional FOIA review costs will be minimal, however, since CBI will 
be submitted under informational categories already determined by the 
Agency to be presumptively confidential.
    FMCSA believes the potential marginal increase in costs associated 
with the adoption of this rule is more than outweighed by the benefits 
for both submitters of CBI and for the Agency. In addition, this rule 
enhances FMCSA's ability to promulgate rules that are data-driven and 
evidence-based; therefore, regulated entities and the public will also 
Regulatory Flexibility Act
    Pursuant to the Regulatory Flexibility Act (RFA) of 1980 (5 U.S.C. 
601 et seq.), as amended by the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857), FMCSA is not 
required to prepare a final regulatory flexibility analysis under 5 
U.S.C. 604(a) for this final rule because the agency has not issued a 
notice of proposed rulemaking prior to this action. FMCSA has therefore 
determined that it has good cause to adopt the rule without notice-and-
Assistance to Small Entities
    In accordance with section 213(a) of the Small Business Regulatory 
Enforcement Fairness Act of 1996, FMCSA wants to assist small entities 
in understanding this final rule so that they can better evaluate its 
effects on themselves and participate in the rulemaking initiative. If 
the final rule would affect your small business, organization, or 
governmental jurisdiction and you have questions concerning its 
provisions or options for compliance, please consult the FMCSA point of 
contact, Ms. Kim McCarthy, listed in the FOR FURTHER INFORMATION 
CONTACT section of this final rule.
Unfunded Mandates Reform Act
    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or tribal government, in 
the aggregate, or by the private sector of $151 million (which is the 
value equivalent of $100 million in 1995, adjusted for inflation to 
2012 levels) or more in any one year. Though this rule will not result 
in such an expenditure, we do discuss the effects of this rule 
elsewhere in this preamble.
Paperwork Reduction Act
    This final rule will call for no new collection of information 
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
Executive Order 13132 (Federalism)
    A rule has implications for Federalism under Section 1(a) of 
Executive Order 13132 if it has ``substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government.'' FMCSA has determined that this final 
rule will not have substantial direct costs on or for States, nor would 
it limit the policymaking discretion of States. Nothing in this 
document preempts any State law or regulation. Therefore, this rule 
does not have sufficient Federalism implications to warrant the 
preparation of a Federalism Assessment.
Executive Order 12988 (Civil Justice Reform)
    This final rule meets applicable standards in sections 3(a) and 
3(b) (2) of Executive Order 12988, Civil Justice Reform, to minimize 
litigation, eliminate ambiguity, and reduce burden.
Executive Order 13045 (Protection of Children)
    E.O. 13045, Protection of Children from Environmental Health Risks 
and Safety Risks (62 FR 19885, Apr. 23, 1997), requires agencies 
issuing ``economically significant'' rules, if the regulation also 
concerns an environmental health or safety risk that an agency has 
reason to believe may disproportionately affect children, to include an 
evaluation of the regulation's environmental health and safety effects 
on children. The Agency determined this final rule is not economically 
significant. Therefore, no analysis of the impacts on children is 
required. In any event, the Agency does not anticipate that this 
regulatory action could in any respect present an environmental or 
safety risk that could disproportionately affect children.
Executive Order 12630 (Taking of Private Property)
    FMCSA reviewed this final rule in accordance with E.O. 12630, 
Governmental Actions and Interference with Constitutionally Protected 

[[Page 32864]]

Rights, and has determined it will not effect a taking of private 
property or otherwise have taking implications.
    The Consolidated Appropriations Act, 2005, (Pub. L. 108-447, 118 
Stat. 2809, 3268, 5 U.S.C. 552a note) requires the Agency to conduct a 
privacy impact assessment (PIA) of a regulation that will affect the 
privacy of individuals. This rule does not involve the collection of 
personally identifiable information (PII).
    The Privacy Act (5 U.S.C. 552a) applies only to Federal agencies 
and any non-Federal agency which receives records contained in a system 
of records from a Federal agency for use in a matching program.
    The E-Government Act of 2002, Public Law 107-347, Sec.  208, 116 
Stat. 2899, 2921 (Dec. 17, 2002), requires Federal agencies to conduct 
a privacy impact assessment for new or substantially changed technology 
that collects, maintains, or disseminates information in an 
identifiable form. No new or substantially changed technology would 
collect, maintain, or disseminate information as a result of this rule. 
Accordingly, FMCSA has not conducted a privacy impact assessment.
Executive Order 12372 (Intergovernmental Review of Federal Programs)
    The regulations implementing Executive Order 12372 regarding 
intergovernmental consultation on Federal programs do not apply to this 
Executive Order 13211 (Energy Supply, Distribution or Use)
    FMCSA has analyzed this final rule under E.O. 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. The Agency has determined that it is not a 
``significant energy action'' under that order because it is not a 
``significant regulatory action'' likely to have a significant adverse 
effect on the supply, distribution, or use of energy. Therefore, it 
does not require a Statement of Energy Effects under E.O. 13211.
Indian Tribal Governments (E.O. 13175)
    This rule does not have tribal implications under E.O. 13175, 
Consultation and Coordination with Indian Tribal Governments, because 
it does not have a substantial direct effect on one or more Indian 
tribes, on the relationship between the Federal Government and Indian 
tribes, or on the distribution of power and responsibilities between 
the Federal Government and Indian tribes.
National Technology Transfer and Advancement Act (Technical Standards)
    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through OMB, with an explanation of why using these standards would be 
inconsistent with applicable law or otherwise impractical. Voluntary 
consensus standards (e.g., specifications of materials, performance, 
design, or operation; test methods; sampling procedures; and related 
management systems practices) are standards that are developed or 
adopted by voluntary consensus standards bodies. This rule does not use 
technical standards. Therefore, we did not consider the use of 
voluntary consensus standards.
Environment (NEPA, CAA, Environmental Justice)
    FMCSA analyzed this final rule for the purpose of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and 
determined that this action is categorically excluded from further 
analysis and documentation in an environmental assessment or 
environmental impact statement under FMCSA Order 5610.1 (69 FR 9680, 
March 1, 2004), Appendix 2, paragraph (6b) that covers editorial and 
procedural regulations. The CE is available for inspection or copying 
in the Regulations.gov Web site listed under ADDRESSES.
    FMCSA also analyzed this action under the Clean Air Act, as amended 
(CAA), section 176(c) (42 U.S.C. 7401 et seq.), and implementing 
regulations promulgated by the Environmental Protection Agency. 
Approval of this action is exempt from the CAA's general conformity 
requirement since it does not affect direct or indirect emissions of 
criteria pollutants.
    Under E.O. 12898, each Federal agency must identify and address, as 
appropriate, ``disproportionately high and adverse human health or 
environmental effects of its programs, policies, and activities on 
minority populations and low-income populations'' in the United States, 
its possessions, and territories. FMCSA evaluated the environmental 
justice effects of this rule in accordance with the E.O. and has 
determined that no environmental justice issue is associated with this 
rule, nor is there any collective environmental impact that would 
result from its promulgation.

List of Subjects in 49 CFR Part 389

    Administrative practice and procedure, Highway safety, Motor 
carriers, Motor vehicle safety.

    In consideration of the foregoing, FMCSA amends 49 CFR part 389 to 
read as follows:


1. The authority citation for part 389 continues to read as follows:

    Authority: 49 U.S.C. 113, 501 et seq., subchapters I and III of 
chapter 311, chapter 313, and 31502; 42 U.S.C. 4917; and 49 CFR 

2. Add a definition of ``Confidential business information'' to Sec.  
389.3 in alphabetical order to read as follows:

Sec.  389.3  Definitions.

* * * * *
    Confidential business information means trade secrets or commercial 
or financial information that is privileged or confidential, as 
described in 5 U.S.C. 552(b)(4). Commercial or financial information is 
considered confidential if it was voluntarily submitted and is the type 
of information that is customarily not released to the general public 
by the person or entity from whom it was obtained.

3. Add Sec.  389.9 to subpart A to read as follows:

Sec.  389.9  Treatment of confidential business information.

    (a) Purpose. This section establishes the standards and procedures 
by which the Agency will solicit and receive certain confidential 
commercial or financial information, as that term is used in the 
Freedom of Information Act (5 U.S.C. 552(b)(4)), categorically referred 
to below as ``confidential business information,'' and the manner in 
which the Agency will protect such information from public disclosure 
in accordance with 5 U.S.C. 552(b)(4).
    (b) Confidential class determinations. The Administrator may make 
and issue a class determination, which shall pertain to a specified 
rulemaking and shall clearly identify categories of information 
included within the class. Information submitted under the class 
determination and conforming to the characteristics of the class will 
be treated as presumptively confidential and accorded the non-
disclosure protections described in paragraph (h) of this section. The 
Administrator may establish a class upon finding that:
    (1) FMCSA seeks to obtain related items of commercial or financial

[[Page 32865]]

information as described in 5 U.S.C. 552(b)(4);
    (2) The class determination would facilitate the voluntary 
submission of information necessary to inform the rulemaking; and
    (3) One or more characteristics common to each item of information 
in the class will necessarily result in identical treatment, and that 
it is therefore appropriate to treat all such items as a class under 
this section.
    (c) Frequency and content of class determinations. Class 
determinations may be defined by the Administrator on an as needed 
basis and shall include substantive criteria established in accordance 
with the informational needs of the particular rulemaking.
    (d) Modification or amendment. The Administrator may amend or 
modify any class determination established under this section.
    (e) Publication. Once the Administrator has made a class 
determination, the Agency shall publish the class determination in the 
Federal Register. If the Administrator amends or modifies any class 
determination established and published in accordance with this 
section, such changes will be published in the Federal Register.
    (f) Submission of confidential business information. Persons 
wishing to submit information in accordance with a class determination 
established under authority of this section must complete and sign, 
under penalties of perjury, an Affidavit in Support of Request for 
Confidentiality (Affidavit), as set forth in Appendix A to this part. 
In the event that information is submitted under more than one 
designated class, each submission must include an executed Affidavit, 
asserting, among other factors, that:
    (1) The information is submitted to the Agency voluntarily;
    (2) The information is of a type customarily not disclosed to the 
public by the submitter;
    (3) The information, to the best of the submitter's knowledge and 
belief, has not been disclosed to the public; and
    (4) The information satisfies the substantive criteria for the 
class as established by the Administrator under authority of paragraph 
(b) of this section.
    (g) Submission of comments not containing confidential business 
information. If a submitter elects to provide commentary in addition to 
the confidential business information submitted under one or more 
classes designated under this section, any portion of a submitter's 
additional commentary that does not contain confidential business 
information shall be filed in the public docket in the form and manner 
set forth in the rulemaking.
    (h) Non-disclosure of confidential business information. In 
accordance with the provisions of 5 U.S.C. 552(b)(4), information 
submitted under this section shall not be available for inspection in 
the public docket, nor shall such information be provided by the Agency 
in response to any request for the information submitted to the Agency 
under 5 U.S.C. 552, except as provided for in paragraph (j) of this 
    (1) If a requester brings suit to compel the disclosure of 
information submitted under this section, the Agency shall promptly 
notify the submitter.
    (2) The submitter may be joined as a necessary party in any suit 
brought against the Department of Transportation or FMCSA for non-
    (i) Use of confidential business information. To the extent that 
the Agency relies upon confidential business information submitted 
under paragraph (f) of this section in formulating a particular rule, 
the Agency shall, in the preamble of the final rule, disclose its 
receipt of such information under a designated class and shall describe 
the information in a de-identified form, including by summary, 
aggregation or other means, as necessary, to sufficiently explain the 
Agency's reasoning while maintaining the confidentiality of the 
    (j) Disclosure of confidential business information. (1) If the 
Administrator finds that information submitted to the Agency under 
paragraph (f) of this section fails to satisfy the requirements set 
forth in paragraphs (f)(2), (3) or (4), or that the Affidavit 
accompanying the information submitted under paragraph (f) is false or 
misleading in any material respect, the Agency shall disclose the non-
conforming information by placing it in the public docket for the 
particular rulemaking, within 20 days following written notice to the 
submitter of its decision to do so, except that:
    (i) Submitters may, within 10 days of receipt of such notice, 
provide the Agency with a written statement explaining why the 
submitted information conforms to the requirements of paragraph (f) of 
this section and thus, should not be disclosed. The Agency shall 
continue to withhold the information from the public docket until 
completing its review of the submitter's statement. The Agency may, 
following timely review of the submitter's statement, determine that 
disclosure is not required under this paragraph. In any event, the 
Agency shall advise the submitter in writing of its decision concerning 
whether the information shall be disclosed in the public docket.
    (ii) [Reserved]
    (2) Notice of the Agency's intention to disclose the submitted 
information is not required if the Administrator determines that the 
entity submitting such information has authorized its disclosure to the 
    (3) If, at the time the Administrator determines that the submitted 
information fails to comply with the requirements set forth in 
paragraph (f), such information is the subject of a FOIA request, the 
requirements of 49 CFR 7.29 shall apply.

4. Add Appendix A to Part 389 to read as follows:



    I, _______, pursuant to the provisions of 49 CFR part 389, 
section 389.9, state as follows:
    (1) I am [insert official's name, title] and I am authorized by 
[insert name of entity] to execute this Affidavit on its behalf;
    (2) I certify that the information contained in the document(s) 
attached to this Affidavit is submitted voluntarily, with the claim 
that the information is entitled to confidential treatment under 5 
U.S.C. 552(b)(4);
    (3) I certify that the information contained in the documents 
attached to this Affidavit is of a type not customarily disclosed to 
the general public by [insert name of entity];
    (4) I certify that, to the best of my knowledge, information and 
belief, the information contained in the documents attached to this 
Affidavit, for which confidential treatment is claimed, has never 
been released to the general public or been made available to any 
unauthorized person outside [insert name of entity];
    (5) I certify that this information satisfies the substantive 
criteria set forth in the notice published in the Federal Register 
on ___[insert date of rule-specific publication in month/day/year 
format] under FMCSA Docket Number [insert docket number].
    (6) I make no representations beyond those made in this 
Affidavit, and, in particular, I make no representations as to 
whether this information may become available outside [insert name 
of entity] due to unauthorized or inadvertent disclosure; and
    (7) I certify under penalties of perjury that the foregoing 
statements are true and correct.
    Executed on this __day of __, __.
    _________(signature of official)

    Issued under the authority of delegation in 49 CFR 1.87. May 27, 
T.F. Scott Darling III,
Chief Counsel.
[FR Doc. 2015-14181 Filed 6-9-15; 8:45 am]

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