[Federal Register Volume 60, Number 26 (Wednesday, February 8, 1995)]
[Rules and Regulations]
[Pages 7449-7453]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-3003]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 51 and 93
[FRL-5149-8]
Transportation Conformity Rule Amendments: Transition to the
Control Strategy Period
AGENCY: Environmental Protection Agency (EPA).
ACTION: Interim final rule.
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SUMMARY: This action aligns the timing of certain transportation
conformity consequences with the imposition of Clean Air Act highway
sanctions for a six-month period. For ozone nonattainment areas with an
incomplete 15% emissions-reduction state implementation plan with a
protective finding; incomplete ozone attainment/3% rate-of-progress
plan; or finding of failure to submit an ozone attainment/3% rate-of-
progress plan, and areas whose control strategy implementation plan for
ozone, carbon monoxide, particulate matter, or nitrogen dioxide is
disapproved with a protective finding, the conformity status of the
transportation plan and program will not lapse as a result of such
failure until highway sanctions for such failure are effective under
other Clean Air Act sections.
This action delays the lapse in conformity status, which would
otherwise prevent approval of new highway and transit projects, and
allows States more time to prevent the lapse by submitting complete
control strategy implementation plans. EPA is issuing this interim
final rule, effective for a six-month period, without prior proposal in
order to prevent previously unforeseeable delays in State ozone
implementation plan development from causing widespread conformity
lapsing. In a parallel action in this Federal Register, EPA is
requesting comment on this interim final rule and on similar but
permanent rule changes.
EFFECTIVE DATE: This interim final rule is effective on February 8,
1995 until August 8, 1995.
ADDRESSES: Materials relevant to this rulemaking are contained in
Docket No. A-95-02. The docket is located in room M-1500 Waterside Mall
(ground floor) at the Environmental Protection Agency, 401 M Street
SW., Washington, DC 20460. The docket may be inspected from 8 a.m. to 4
p.m., Monday through Friday, including all non-government holidays.
FOR FURTHER INFORMATION CONTACT: Kathryn Sargeant, Emission Control
Strategies Branch, Emission Planning and Strategies Division, U.S.
Environmental Protection Agency, 2565 Plymouth Road, Ann Arbor, MI
48105. (313) 668-4441.
SUPPLEMENTARY INFORMATION:
I. Background
A. Transportation Conformity Rule
The final transportation conformity rule, ``Criteria and Procedures
for Determining Conformity to State or Federal Implementation Plans of
Transportation Plans, Programs, and Projects Funded or Approved Under
Title 23 U.S.C. or the Federal Transit Act,'' was published November
24, 1993 (58 FR 62188) and amended 40 CFR parts 51 and 93. The Notice
of Proposed Rulemaking was published on January 11, 1993 (58 FR 3768).
Required under section 176(c) of the Clean Air Act, as amended in
1990, the transportation conformity rule established the criteria and
procedures by which the Federal Highway Administration, the Federal
Transit Administration, and metropolitan planning organizations
determine the conformity of federally funded or approved highway and
transit plans, programs, and projects to state implementation plans
(SIPs). According to the Clean Air Act, federally supported activities
must conform to the implementation plan's purpose of attaining and
maintaining the national ambient air quality standards.
The final transportation conformity rule requires that conformity
determinations use the motor vehicle emissions budget(s) in a submitted
``control strategy'' SIP (defined below), and the rule includes special
provisions to address failures in control strategy SIP development.
These failures include failure to submit a control strategy SIP,
submission of an incomplete control strategy SIP, or disapproval of a
control strategy SIP. Specifically, according to 40 CFR 51.448 (and 40
CFR 93.128), following these SIP development failures, no new or
amended transportation plans or transportation improvement programs
(TIPs) may be found to conform to the SIP after a certain grace period
(i.e., the existing transportation plan and TIP are ``frozen''), and
eventually, the conformity status of the existing transportation plan
and TIP lapses.
When the conformity status of the transportation plan and TIP
lapses, no new project-level conformity determinations may be made, and
the only federal highway and transit projects which may proceed are
exempt or grandfathered projects. Non-federal [[Page 7450]] highway or
transit projects may be adopted or approved by recipients of funds
designated under title 23 U.S.C. or the Federal Transit Act only if
they are not regionally significant.
As described in the preamble to the final transportation conformity
rule (58 FR 62191-3), EPA developed these requirements in response to
public comments which claimed that the proposed interim period
conformity criteria (e.g., the ``build/no-build test'') did not ensure
emissions reductions consistent with Clean Air Act requirements for
reasonable further progress and attainment, and which emphasized the
importance of emissions budgets in determining conformity. EPA imposed
restrictions such as conformity lapsing where the State failed to
establish emission budgets in a timely fashion, because EPA believed
that in the prolonged absence of a control strategy SIP, preventing new
conformity determinations and postponing new commitments of funds would
prevent uncontrolled emissions increases while the State was
establishing its control strategies.
B. Control Strategy SIP Requirements
Control strategy SIPs include 15% rate-of-progress plans,
reasonable further progress plans, and attainment demonstrations.
Clean Air Act section 182(b)(1) required moderate and above ozone
nonattainment areas to submit a 15% volatile organic compound emission
reduction rate-of-progress plan by November 15, 1993. Moderate ozone
areas were also required by that section to submit an attainment
demonstration by this date if they were not using photochemical grid
modeling to develop the demonstration.
Serious and above ozone nonattainment areas (and moderate ozone
nonattainment areas using photochemical grid modeling under EPA's
interpretation of section 182(b)(1)) were required to submit an
attainment demonstration by November 15, 1994 under Clean Air Act
section 182(c)(2)(A). Clean Air Act section 182(c)(2)(B) also required
serious and above ozone nonattainment areas to submit by this date a
reasonable-further-progress (or rate-of-progress) plan for 3% annual
emission reductions until the attainment date.
Carbon monoxide (CO) nonattainment areas classified as moderate
with design value greater than 12.7 parts per million or serious were
required by Clean Air Act section 187(a)(7) to submit an attainment
demonstration by November 15, 1992.
Areas in nonattainment for particulate matter less than a nominal
10 microns in aerodynamic diameter (PM-10) were required to submit an
attainment demonstration at varying dates depending upon their date of
classification, but Clean Air Act section 189(a)(1)(B) required many
areas to submit the attainment demonstration by November 15, 1991.
Nitrogen dioxide (NO2) areas were required by Clean Air Act
section 191 to submit an attainment demonstration by May 15, 1992.
II. Description of Interim Final Rule
A. Incomplete 15% SIPs and Disapprovals With Protective Findings
This interim final rule delays the lapse in transportation plan/TIP
conformity until Clean Air Act section 179(b) highway sanctions are
effective, for areas with a 15% SIP which EPA found incomplete but
noted in the finding (according to 40 CFR 51.448(c)(1)(iii)) that the
submittal would have been considered complete with respect to
requirements for emission reductions if all committed measures had been
submitted in enforceable form as required by Clean Air Act section
110(a)(2)(A) (i.e., incomplete with a ``protective finding''). EPA is
also similarly delaying the conformity lapse which results from EPA
disapproval of a control strategy SIP with a ``protective finding'' as
described in 40 CFR 51.448(a)(3) and (d)(3). Clean Air Act highway
sanctions will become effective in both types of areas two years
following the date of EPA's incompleteness determination or
disapproval, unless the State remedies the failure.
Under the November 1993 transportation conformity rule, the
conformity status of the transportation plan and TIP lapses in such
areas twelve months following the incompleteness determination or
disapproval, unless another SIP is submitted to EPA and found to be
complete. This interim final rule delays the transportation plan/TIP
conformity lapse. It also restores the conformity status of
transportation plans and TIPs for which twelve months have already
elapsed since EPA made the incompleteness determination or disapproval
with protective finding, provided conformity has not lapsed for other
reasons under the transportation conformity rule. A list of areas with
incomplete 15% SIPs with protective findings (and the dates of those
EPA findings) is in the docket.
EPA is delaying the transportation plan/TIP conformity lapse in
these areas because the agency now believes that a twelve-month period
to make these control strategy SIPs fully enforceable is a too
stringent definition of ``timely'' SIP development in this particular
context, given the lengthy legislative and administrative processes of
many States. Although EPA believed this time period was appropriate at
the time EPA promulgated the transportation conformity rule, EPA has
now seen that in practice the time was too short to be reasonable for
purposes of determining when transportation plans and TIPs should lapse
following SIP development failures.
EPA believes it is appropriate to allow States more time to
complete these SIPs before negative conformity consequences are
imposed, particularly because in these areas with incompleteness
findings or disapprovals with protective findings, the State has
developed motor vehicle emissions budget(s) which are part of an
overall strategy to achieve the required emission reductions and
therefore are appropriate for use in conformity determinations. In
these areas, lapsing is not necessary in the short term to prevent
uncontrolled motor vehicle emissions increases while the State
completes the SIP, because the motor vehicle emissions budget(s) are
already applying in conformity determinations as a constraint.
However, EPA continues to believe that a conformity lapse is
appropriate in the prolonged absence of a complete control strategy
SIP. In such cases, EPA can no longer remain confident that states will
be able to adopt and implement the rules necessary to support the SIP
emissions budget. EPA believes that the application of Clean Air Act
highway sanctions signifies that SIP development has not proceeded in a
timely fashion and, therefore, that the conformity process should
ensure that significant new transportation projects will not be
undertaken.
B. Ozone Attainment/3% Rate-of-Progress SIPs
For ozone nonattainment areas which fail to submit an attainment
SIP due November 15, 1994 (including moderate areas using photochemical
grid modeling) and/or a 3% rate-of-progress SIP revision (hereafter
called an ``attainment/3% rate-of-progress SIP''), this interim final
rule similarly delays the transportation plan/TIP conformity lapse
until Clean Air Act highway sanctions are effective. Clean Air Act
highway sanctions apply in these areas two years following the date of
EPA's finding of failure to submit, unless the State remedies the
failure. This rule also [[Page 7451]] eliminates the transportation
plan/TIP ``freeze'' in these areas.
Under the November 1993 transportation conformity rule, in ozone
nonattainment areas where EPA finds a failure to submit the attainment/
3% rate-of-progress SIP, no new or amended transportation plans or TIPs
could be adopted after March 15, 1995 (i.e., the existing
transportation plan/TIP would be ``frozen''). The conformity status of
the transportation plan and TIP would have lapsed November 15, 1995.
This interim final rule also delays the transportation plan/TIP
conformity lapse until the application of Clean Air Act highway
sanctions for ozone nonattainment areas with incomplete attainment/3%
rate-of-progress SIPs. This rule also eliminates the transportation
plan/TIP ``freeze'' for these areas.
Under the November 1993 transportation conformity rule, if EPA
found an area's ozone attainment/3% rate-of-progress SIP incomplete
without a protective finding, the transportation plan/TIP would have
``frozen'' 120 days following EPA's incompleteness finding, and the
conformity status of the transportation plan/TIP would have lapsed
November 15, 1995. For areas for which EPA made an incompleteness
determination with a protective finding, the conformity status of the
transportation plan/TIP would have lapsed twelve months from the date
of the incompleteness finding (no ``freeze'' would have occurred).
Under this interim final rule, in any ozone nonattainment area with
an incomplete attainment/3% rate-of-progress SIP, the conformity status
of the transportation plan/TIP will not lapse until Clean Air Act
section 179(b)(1) highway sanctions are effective as a result of the
incompleteness (provided the conformity status of the transportation
plan and TIP does not lapse for other reasons under the transportation
conformity rule). Consequently, there will be no distinction among
incompleteness determinations regarding protective findings.
EPA is delaying the transportation plan/TIP conformity lapse due to
failure to submit and incomplete ozone attainment/3% rate-of-progress
SIPs because unforeseeable delays in the development of these SIPs,
including delays beyond the control of state air quality planning
agencies due to the complexity of required modeling, have convinced the
agency that the grace periods in the November 1993 rule constitute a
too stringent definition of ``timely'' establishment of emissions
budgets in this particular context. Since states have been proceeding
towards SIP development and delays have not been within their control,
EPA now believes that the original grace period is unreasonable.
However, EPA continues to believe that conformity lapsing is
appropriate in the prolonged absence of a complete ozone attainment/3%
rate-of-progress SIP. EPA believes that the application of Clean Air
Act highway sanctions signifies that SIP development has not proceeded
in a timely fashion and, therefore, that the conformity process should
ensure that significant new transportation projects will not be
undertaken.
C. Other Control Strategy SIPs
This interim final rule does not change the consequences in 40 CFR
51.448 for disapproval of any control strategy SIP without a protective
finding; for failure to submit or submission of incomplete CO, PM-10,
or NO2 attainment demonstrations; or for failure to submit or
submission of incomplete 15% SIPs without protective findings. EPA
believes that transportation plan/TIP ``freeze'' and conformity lapse
is appropriate as currently required because in these cases adequate
emissions budgets have not been established in a timely fashion.
III. Rulemaking Process
A. Rulemaking Procedures
This rule is being published as an interim final rule without
benefit of a prior proposal and public comment period because EPA finds
that ``good cause'' exists for deferring those procedures until after
publishing the changes as an interim final rule. Good cause exists for
two reasons. First, it is contrary to the public interest for the
transportation conformity rule to halt implementation of transportation
plans, programs, and projects when for the reasons described above EPA
believes that such delay is not necessary at this time for the lawful
and effective implementation of Clean Air Act section 176(c).
Furthermore, the conformity consequences for ozone areas which this
interim final rule delays would have occurred before full notice-and-
comment rulemaking could have been completed. EPA could not have
initiated full notice-and-comment rulemaking far enough in advance to
effectively delay the conformity consequences at issue because it was
first necessary to evaluate the States' progress in control strategy
SIP development and submission, and to determine whether the existing
grace periods were appropriate. In addition, it is possible that a
disapproval with a protective finding could have occurred during the
full notice-and-comment rulemaking process. Thus, it was impracticable
to provide notice-and-comment procedures prior to the time by which EPA
needs to implement these changes to avoid the conformity consequences
that would otherwise result under the existing rule.
Although prior notice-and-comment rulemaking was impracticable, a
draft of this rule was distributed to representatives of affected State
and local transportation and air quality planning agencies and the
public, and a conference call was held with stakeholders such as the
State and Territorial Air Pollution Program Administrators/Association
of Local Air Pollution Control Officials, the American Association of
State Highway and Transportation Officials, the American Public Transit
Association, the National Association of Regional Councils, the
American Association of Metropolitan Planning Organizations, the
National Governors' Association, the Surface Transportation Policy
Project, the Environmental Defense Fund, the Natural Resources Defense
Council, the Sierra Club Legal Defense Fund, the Highway Users
Federation, and the American Road and Transportation Builders
Association to solicit input on the interim final rule prior to
promulgation.
In addition, the Secretary of Transportation reviewed and concurred
with this interim final rule.
This interim final rule is taking effect immediately upon
publication because, as described above, conformity lapsing which is
contrary to the public interest would otherwise be occurring during the
30-day period between publication and the effective date ordinarily
provided under the Administrative Procedures Act (APA), 5 U.S.C.
553(d). EPA finds good cause to make this interim final rule effective
immediately for the same reasons described above in justification of
taking final action without prior proposal. In addition, this rule
relieves a restriction and, therefore, qualifies for an exception from
the APA's 30-day advance-notice period under 5 U.S.C. 553(d)(1).
The provisions of this interim final rule shall apply only for six
months, during which time EPA will conduct full notice-and-comment
rulemaking on these provisions and whether to make these provisions
permanent. A proposed rule is published in the proposed rule section of
this Federal Register, and the public comment period on this proposal
will last until March 10, 1995. Public [[Page 7452]] comments will be
addressed in a subsequent final rule, which will be promulgated before
the six-month limit on the applicability of this interim final rule
expires.
B. Future Amendments to the Transportation Conformity Rule
EPA intends to make additional limited amendments to the
transportation conformity rule. EPA intends to clarify certain
ambiguous language in 40 CFR 51.448 and 93.128 to ensure implementation
consistent with the intent of EPA and the Department of Transportation
(DOT), as expressed in guidance memoranda issued since November 1993.
These changes are necessary to have legal certainty that the amendments
promulgated today will continue to have their intended effect.
In addition, EPA intends to amend the transportation conformity
rule in order to allow transportation control measures which are in an
approved SIP and have been included in a conforming transportation plan
and TIP to proceed even if the conformity status of the current
transportation plan and TIP has lapsed.
EPA is not issuing these amendments in this interim final rule
because prior notice-and-comment rulemaking is not impracticable in
these cases. EPA intends to propose these amendments in a Notice of
Proposed Rulemaking within the next several months, and representatives
from the organizations listed above will be given an opportunity to
comment on a draft NPRM this month.
Since publication of the transportation conformity rule in November
1993, EPA, DOT, and state and local air and transportation officials
have had experience implementing the criteria and procedures in the
rule. It is that mutual experience which leads to the amendments which
EPA will be proposing today and in the very near future. In each case,
the amendments are needed to clarify ambiguities, correct errors, or
make the conformity process more logical and feasible.
There are many other issues which were debated in the original
rulemaking, some of which are the subject of litigation at this time.
EPA does not intend its issuance of back-to-back rulemakings to imply a
willingness to open the conformity rule to amendments which suit one or
the other petitioners' purpose. Both EPA and DOT, of course, are very
willing and eager to assist transportation and air quality planners in
complying with the rule and the statutory intent.
IV. Administrative Requirements
A. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof;
(4) Raise novel or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in the Executive
Order.
Pursuant to the terms of Executive Order 12866, it has been
determined that this rule is a ``significant regulatory action.'' As
such, this action was submitted to OMB for review. Changes made in
response to OMB suggestions or recommendations will be documented in
the public record.
B. Reporting and Recordkeeping Requirements
This rule does not contain any information collection requirements
from EPA which require approval by OMB under the Paperwork Reduction
Act of 1980, 44 U.S.C. 3501 et seq.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 requires federal agencies to
identify potentially adverse impacts of federal regulations upon small
entities. In instances where significant impacts are possible on a
substantial number of these entities, agencies are required to perform
a Regulatory Flexibility Analysis (RFA).
EPA has determined that today's regulations will not have a
significant impact on a substantial number of small entities. This
regulation affects moderate and above ozone nonattainment areas, which
are almost exclusively urban areas of substantial population, and
affects federal agencies and metropolitan planning organizations, which
by definition are designated only for metropolitan areas with a
population of at least 50,000.
Therefore, as required under section 605 of the Regulatory
Flexibility Act, 5 U.S.C. 601 et seq., I certify that this regulation
does not have a significant impact on a substantial number of small
entities.
List of Subjects
40 CFR Part 51
Environmental protection, Administrative practice and procedure,
Carbon monoxide, Intergovernmental relations, Nitrogen dioxide, Ozone,
Particulate Matter, Reporting and Recordkeeping Requirements, Volatile
organic compounds.
40 CFR Part 93
Administrative practice and procedure, Air pollution control,
Carbon monoxide, Intergovernmental relations, Ozone.
Dated: January 31, 1995.
Carol M. Browner,
Administrator.
40 CFR parts 51 and 93 are amended as follows:
PARTS 51 AND 93--[AMENDED]
1. The authority citation for part 51 continues to read as follows:
Authority: 42 U.S.C. 7401(a)(2), 7475(e), 7502 (a) and (b),
7503, 7601(a)(1) and 7602.
2. The authority citation for part 93 continues to read as follows:
Authority: 42 U.S.C. 7401-7671p.
3. The identical texts of Secs. 51.448 and 93.128 are amended as
follows:
a. By redesignating paragraphs (b)(2) and (c)(2) as (b)(3) and
(c)(3);
b. In the newly redeisgnated paragraph (c)(3)(iii) by revising the
reference ``paragraphs (c)(2)(i) and (ii)'' to read ``paragraphs
(c)(3)(i) and (ii); and
c. By adding new paragraphs (a)(4), (b)(2), (c)(2), and (d)(4).
The identical text of additions reads as follows:
Sec. ______.______ Transition from the interim period to the control
strategy period.
(a) * * *
(4) Until August 8, 1995, for areas otherwise subject to paragraph
(a)(3) of this section, the conformity lapse imposed by the final
sentence of paragraph (a)(3) of this section shall not apply. The
conformity status of the transportation plan and TIP shall lapse on the
date that highway sanctions as a result of the disapproval are imposed
on the nonattainment area under section 179(b)(1) of the Clean Air Act,
unless another control strategy implementation [[Page 7453]] plan
revision is submitted to EPA and found to be complete.
(b) * * *
(2) Until August 8, 1995, for ozone nonattainment areas where EPA
has notified the State, MPO, and DOT of the State's failure to submit a
control strategy implementation plan revision required by Clean Air Act
sections 182(c)(2)(A) and/or 182(c)(2)(B), failure to submit an
attainment demonstration for an intrastate moderate ozone nonattainment
area that chose to use the Urban Airshed Model for such demonstration,
or failure to submit an attainment demonstration for a multistate
moderate ozone nonattainment area, the following shall apply in lieu of
the provisions of paragraph (b)(1) of this section:
(i) The conformity status of the transportation plan and TIP shall
lapse on the date that highway sanctions are imposed on the
nonattainment area for such failure under section 179(b)(1) of the
Clean Air Act, unless the failure has been remedied and acknowledged by
a letter from the EPA Regional Administrator; and
(ii) The consequences described in paragraph (b)(1) of this section
shall be nullified if such provisions have been applied as a result of
a failure described in paragraph (b)(2) of this section, and paragraph
(b)(2) of this section shall henceforth apply with respect to any such
failure.
* * * * *
(c) * * *
(2) Until August 8, 1995, for the ozone nonattainment areas
described in paragraph (c)(2)(i) of this section, the following shall
apply in lieu of the provisions of paragraph (c)(1) of this section:
(i) The conformity status of the transportation plan and TIP shall
lapse on the date that highway sanctions are imposed on the
nonattainment area under section 179(b)(1) of the Clean Air Act for the
failures described below, unless the failure has been remedied and
acknowledged by a letter from the EPA Regional Administrator, in ozone
nonattainment areas where EPA notifies the State, MPO, and DOT that any
of the following control strategy implementation plan revisions are
incomplete:
(A) The implementation plan revision due November 15, 1994, as
required by Clean Air Act sections 182(c)(2)(A) and/or 182(c)(2)(B);
(B) The attainment demonstration required for moderate intrastate
ozone nonattainment areas which chose to use the Urban Airshed Model
for such demonstration and for multistate moderate ozone nonattainment
areas; or
(C) The VOC reasonable further progress demonstration due November
15, 1993, as required by Clean Air Act section 182(b)(1), if EPA notes
in its incompleteness finding as described in paragraph (c)(1)(iii) of
this section that the submittal would have been considered complete
with respect to requirements for emission reductions if all committed
measures had been submitted in enforceable form as required by Clean
Air Act section 110(a)(2)(A); and
(ii) The consequences described in paragraph (c)(1) of this section
shall be nullified if such provisions have been applied as a result of
a failure described in paragraph (c)(2)(i) of this section, and
paragraph (c)(2) of this section shall henceforth apply with respect to
any such failure.
* * * * *
(d) * * *
(4) Until August 8, 1995, for areas otherwise subject to paragraph
(d)(3) of this section, the conformity lapse imposed by the final
sentence of paragraph (d)(3) of this section shall not apply. The
conformity status of the transportation plan and TIP shall lapse on the
date that highway sanctions as a result of the disapproval are imposed
on the nonattainment area under section 179(b)(1) of the Clean Air Act,
unless another control strategy implementation plan revision is
submitted to EPA and found to be complete.
* * * * *
[FR Doc. 95-3003 Filed 2-7-95; 8:45 am]
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