[Federal Register Volume 85, Number 139 (Monday, July 20, 2020)]
[Rules and Regulations]
[Pages 43688-43692]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-14131]
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DEPARTMENT OF DEFENSE
Department of the Army, Corps of Engineers
33 CFR Part 334
[COE-2018-0005]
Pacific Ocean at Naval Base Guam Telecommunication Site,
Finegayan Small Arms Range, on the Northwestern Coast of Guam; Danger
Zone
AGENCY: U.S. Army Corps of Engineers, DoD.
ACTION: Final rule.
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SUMMARY: The Corps of Engineers (Corps) is amending its danger zone
regulations to establish a danger zone in the Pacific Ocean adjacent to
the existing Finegayan Small Arms Range at Naval Base Guam
telecommunication site on the northwestern coast of Guam. The danger
zone is located entirely within the Pacific Ocean, comprising 892 acres
and extending 2.36 miles into the ocean from the high tide line.
Establishment of the danger zone will intermittently prohibit vessels
from lingering in the danger zone when the small arms range is in
active use in order to ensure public safety.
DATES: Effective August 19, 2020.
ADDRESSES: U.S. Army Corps of Engineers, Attn: CECW-CO (David Olson),
441 G Street NW, Washington, DC 20314-1000.
FOR FURTHER INFORMATION CONTACT: Mr. David Olson, Headquarters,
Operations and Regulatory Division, at [email protected] or
202-761-4922.
SUPPLEMENTARY INFORMATION: In response to a request by the United
States Navy, and pursuant to its authorities in Section 7 of the Rivers
and Harbors Act of 1917 (40 Stat. 266; 33 U.S.C. 1) and Chapter XIX of
the Army Appropriations Act of 1919 (40 Stat. 892; 33 U.S.C. 3), the
Corps of Engineers (Corps) is amending its danger zone regulations to
establish a permanent danger zone in the Pacific Ocean adjacent to the
Finegayan Small Arms Range (FSAR) on Guam. The danger zone will be
added at 33 CFR 334.1415. The danger zone is needed for the Department
of Defense to meet its mission under 10 U.S.C. 5062, which is to
maintain, train, and equip combat-ready military forces, deterring
aggression, and maintaining freedom of the seas. Due to the strategic
location of Guam and the Department of Defense's ongoing reassessment
of the Western Pacific military alignment, there has been an increase
in the importance of the FSAR as a training and testing venue. The
danger zone is necessary to protect the public from hazards associated
with small arms training.
The proposed rule was published in the Federal Register on December
13, 2018 (83 FR 64053). The regulations.gov docket number was COE-2018-
0005. Concurrently, a local public notice for the proposed danger zone
was sent out from the Honolulu District. In response to the proposed
rule, 45 comments were received. The comments are summarized below,
with the Corps' responses to those comments.
Several commenters requested a time extension for the public
comment period. Twenty-two commenters requested either a public hearing
with the Corps or public meetings with representatives of the Navy and/
or Corps. The commenters requested these meetings to better understand
the impacts of the FSAR and the proposed danger zone, and to have an
open dialogue and discussion.
The Corps determined that 30 days was sufficient to provide
comments on the proposed danger zone regulation. The Corps' regulations
at 33 CFR part 327 allow district engineers to conduct public hearings
for the purpose of acquiring information which will be considered in
evaluating a proposed action that requires a decision by the Corps. A
public hearing gives the public an opportunity to present their views,
opinions, and information on a proposed action. The district engineer
has the discretion to not hold a public hearing if he or she determines
that there would be no valid interest to be served by a public hearing,
or a public hearing would not result in interested parties presenting
information that could not be provided to the Corps via comments
submitted in response to a proposed rule or a proposed permit action.
The Corps district carefully reviewed all of the requests for a public
hearing or public meetings, as well as the comments received in
response to the proposed rule, and concluded that a public hearing
would not identify issues or concerns that were not already identified
and discussed in the comments submitted in response to the proposed
rule and the district's public notice. Therefore, the district engineer
decided not to hold any public hearings or public meetings for this
proposed rule.
A couple of commenters requested the Corps prepare an environmental
impact statement (EIS) for the proposed rule. Several commenters
expressed concerns with the 2010 Mariana Islands Range Complex
Environmental Impact Statement/Overseas Environmental Impact Statement
and the 2015 Mariana Islands Training and Testing Environmental Impact
Statement/Overseas Environmental Impact Statement and compliance with
federal laws, including the Coastal Zone Management Act, the Magnuson-
Stevens Fishery Conservation and Management Act, the Endangered Species
Act, and the National Historic Preservation Act. Some commenters
requested that additional studies be conducted, as well as additional
assessments of the impacts, to better understand the effects of the
Mariana Islands Range Complex and training activities on natural
resources, historical and cultural resources, the economy, and to the
people of Guam. One commenter said that specific sections of these EIS
documents should be referenced and stated the public notice, or the
public notice should be considered incomplete. Several commenters
requested a review of
[[Page 43689]]
cumulative impacts. One commenter asked how the proposed danger zone
relates to the future Marine Corps base. One commenter wanted to know
how the Corps will mitigate any impacts to the environment.
For the purposes of the National Environmental Policy Act (NEPA),
the federal action being undertaken by the Corps is the promulgation of
the danger zone regulation under its authorities at 33 U.S.C. 1 and 3
and the procedures in 33 CFR part 334. The Corps is responsible for
assessing the impacts of the proposed danger zone on the human
environment, and for preparing appropriate NEPA documentation for its
decision on whether to issue the final rule for the danger zone. To
comply with NEPA requirements, the Corps prepared an environmental
assessment for this rulemaking action and concluded that the
establishment of the danger zone would not have a significant impact on
the quality of the human environment and therefore does not require the
preparation of an EIS. A copy of the environmental assessment is
available from the Corps district office. The establishment of this
danger zone would not result in work, structures, or construction
within the Pacific Ocean, or any modification to any vegetation,
habitat, or structures in the Pacific Ocean, on the shore, or on the
land. Therefore, it will not have any impacts on natural resources or
historical and cultural resources. With respect to impacts to people on
Guam, the danger zone is intended to protect the public from hazards
that may result from the use of the FSAR at the Naval Base Guam
telecommunication site. The boundaries of the danger zone will be
plotted by National Oceanic and Atmospheric Administration on its
nautical charts, which will help alert users of those navigable waters
to the danger zone.
For the establishment and operation of the FSAR itself, the Navy is
the Federal agency responsible for compliance with applicable federal
laws, which may include Section 7 of the Endangered Species Act, the
Essential Fish Habitat provisions of the Magnuson-Stevens Fishery
Conservation and Management Act, Section 106 of the National Historic
Preservation Act, and the Coastal Zone Management Act. The Navy's
documents demonstrating compliance with these laws and concurrences
from the agencies administering these laws can be obtained from the
Marianas Islands Training and Testing website at https://mitt-eis.com.
Cumulative impacts were evaluated in the environmental assessment
prepared by the Corps district for this final rule. The establishment
of a future Marine Corps base on Guam is a separate action that is
outside of the Corps' rulemaking action for the establishment of this
danger zone. Therefore, the Corps is not required address that
potential future action in its NEPA documentation. Since the danger
zone will be in effect only when the FSAR is in use and the
establishment of the danger zone will promote public safety and will
not have any physical environmental effects, impacts to the human
environment have been minimized. The Corps has determined there is no
need or requirement for mitigation beyond incorporating into the rule
text measures to minimize impacts to maritime traffic and fishing
activities.
Multiple commenters expressing concern about potential impacts of
the danger zone on Guam's fishing industry. Multiple individuals
provided comments about impacts to commercial tourism operations,
subsistence fishing, and recreational fishing. One commenter stated
that the danger zone would create additional restrictions to
subsistence and artisanal fishers. Several commenters wanted to better
understand how the establishment of a danger zone would impact the
movement of the fishing community up and down the coast, and whether
fishermen would be forced to move into less safe waters outside the
danger zone. Many commenters wanted to know how often access to the
proposed danger zone would be restricted.
The Corps' regulations require that danger zones and restricted
areas provide public access to the area to the maximum extent
practicable and not cause unreasonable interference with or restrict
the food fishing industry (see 33 CFR 334.3(a) and (b), respectively).
The regulations require the Corps to consult with the Regional
Directors of the U.S. Fish and Wildlife Service and National Marine
Fisheries Service regarding impacts to the food fishing industry. The
Corps district sent each agency a letter dated May 6, 2019, requesting
comments in relation to the food fishing industry. Neither agency
responded to those letters.
The establishment of a danger zone would intermittently restrict
commercial, public, and private vessels from entering or lingering in
the danger zone to ensure public safety during small arms training
activities at the FSAR. Although the danger zone would restrict use of
the waters within its boundaries while the small arms range is in use,
it would not restrict access through the danger zone to fishing grounds
to the north or south. While the small arms range is in use, the Navy
would halt training activities to allow vessels to expeditiously
transit through the danger zone. When the range is not in use, the
waters within the danger zone boundaries would be open to fishing.
Upon establishment of the danger zone, nautical charts will be
updated to identify the boundaries of the danger zone for mariner
awareness and route planning. A Notice to Mariners will also be issued
each time the range is active. The Corps has determined that the Navy
has provided for public access to the area to the maximum extent
practicable. Additionally, the Corps has determined, based on the Navy
allowing fishing vessels to transit through the danger zone, that there
will not be unreasonable interference or restrictions to the food
fishing industry.
The Corps received multiple comments about the impacts of the
danger zone to recreation and access, including impacts to the native
Chamorro population as well as tourism operations. Several people
wanted to know if the restrictions associated with the danger zone
would result in economic impacts. Some commenters expressed concern
about how the danger zone may affect local property owners.
The Corps' regulations state that danger zone regulations shall
provide for public access to the area to the maximum extent
practicable. This danger zone will intermittently restrict commercial,
public, and private vessels from entering or lingering in the danger
zone to ensure public safety during small arms training activities.
Although the danger zone would restrict use of the waters within its
boundaries while the small arms range is in use, it would not restrict
access through the danger zone to areas north or south. While the small
arms range is in use, the Navy would halt training activities to allow
vessels to expeditiously transit through the danger zone. When the
range is not in use, the danger zone would be open to normal maritime
activities. Therefore, it will only have intermittent impacts on
recreation and access for the public, including the native Chamorro
population. Based on previous operations of the FSAR, the Corps has
determined that the establishment of the danger zone regulation would
have no economic impact on Guam's tourism industry or cruise vessel
operations. The danger zone is located completely in the waters of the
Pacific Ocean. The Corps has determined that the establishment of the
danger zone would cause no disruption in access to homes or businesses.
[[Page 43690]]
Multiple commenters expressed concerns about potential effects to
cultural and historical resources. Several commenters expressed their
belief that Chamorro cultural values and practices would be jeopardized
by the proposed establishment of the danger zone. Several commenters
wanted to know if the range would limit access to ancient and sacred
historical sites that are regularly visited by the Chamorro people. One
commenter wanted to know if the danger zone would have any implications
on the ``2011 Programmatic Agreement'' and whether public access to
Haputo Reef, Double Reef, and Tweed's Cave would be affected by the
proposed danger zone. Others provided information about the existing
cultural and historic sites near the FSAR. Several others had specific
questions about how it would affect traditional fishing grounds. A
couple of individuals asserted that Chamorro traditional fishing
grounds should not be inaccessible to the Chamorro people. One
commenter wanted to know how the danger zone would affect Chamorro
medicinal plant and coconut crab collecting practices.
The danger zone restricts the use of navigable waters to protect
the public during small arms training activities. It does not involve
any actions that have the potential to cause effects to historic
properties, cultural resources, or sacred cultural sites. There would
be no construction, structures, or in-water work associated with the
establishment of the danger zone. The Corps acknowledges that there may
be temporary disruptions to accessing traditional fishing grounds when
the range is in use and has determined that these disruptions would be
minimal, and are necessary for safety. When the range is not in use,
the danger zone will be open and the waters available to public water
users.
The danger zone is not associated with the 2011 Programmatic
Agreement. Public access to Haputo Beach, Double Reef, and Tweed's cave
is available via the Joint Region Marianas Public Access Plan for
Historic and Cultural Sites when the range is not in use. In addition,
coconut crab collection is not authorized on Department of Defense
property.
Multiple commenters voiced concerns about potential effects to
upland and in-water plants and animals in and adjacent to the danger
zone, including the fruit bat, fish, corals, sea turtles, and other
aquatic species. Several commenters expressed concerns about potential
impacts to threatened and endangered species and Essential Fish
Habitat. One commenter wanted to know if the danger zone would
negatively impact the presence and propagation of coconut trees or any
other endemic or native plants and trees.
The establishment of the danger zone will not result in a
modification to any vegetation, habitat, or structures in the Pacific
Ocean, on the shore, or on the land. Establishment of the danger zone
will not have any effect on land-based plants and animals. If humans
are not able to loiter in the danger zone while the firing range is
operational, then there may be less human impact on marine ecosystems
within the boundaries of the danger zone. Therefore, the restrictions
imposed by the establishment of the danger zone are likely to have
negligible or mildly beneficial impacts on marine life. The
establishment of the danger zone will have no effect on marine species
and habitat, including coral species, listed under the Endangered
Species Act and it will have no adverse effect on Essential Fish
Habitat. Although the Corps has the authority to establish danger zones
to protect the public from potential dangers imposed by target
practice, bombing, rocket firing or other especially hazardous
operations, the Corps does not regulate boating activities in general,
and does not have the authority to control environmental effects that
may be caused by boating activities.
The Corps received comments expressing concern about the safety
risks associated with the operation of the danger zone. A couple of
commenters wanted more information about how the limits of the firing
range, extending into the ocean up to 2.36 nautical miles from the
shore, were determined. A couple of commenters inquired about the
efficacy of the red flag and strobe light. One commenter asked if the
red flag that would be used to communicate with mariners during the
daytime and strobe light that would be used to communicate with
mariners during the nighttime could be seen under all weather
conditions in the entirety of the proposed danger zone. A commenter
wanted to know what other methods of alerting the public that the
firing range was in use were considered. One commenter asked if
fishermen could be notified in advance to help better plan their trip.
One individual inquired about installing a warning system at Gregorio
D. Perez Marina where most boaters launch.
The danger zone boundaries were established to include all areas
where a potential hazard exists for a projectile not being contained by
the earthen berms at the FSAR, although this type of event has a very
low probability of occurring. Danger zones are established for this
reason to ensure safe range operations. The parameters of the danger
zone were determined by the maximum distance a small arms round can
travel. The Navy has no plans to expand the footprint of the existing
ranges, increase weapons caliber, or use these ranges for bombing,
rocket firing, or other especially hazardous operations. Targets would
not be placed within the danger zone. These ranges would continue to be
used in the same capacity as they were used since the 1970s.
Similar to navigation lights/aids on buoys and approach lighting
for airfields, the strobe light (nighttime), would be visible under all
weather conditions that would be conducive to small boat and small arms
range operations. The red flag (daytime) method of identifying an
active danger zone is currently in use at the Naval Base Guam Known
Distance and Multi-Purpose Ranges and has proven to be an effective
method of alerting the public of small arms range operation. The red
flag and strobe light were the only methods of alerting the public that
were considered by the Navy. The strobe light was added for the FSAR as
an additional method of alerting the public during nighttime operations
of the range. The red flag and strobe light have been proven effective
in alerting the public and have been proven as feasible methods of
identifying the danger zones as being active. It should also be noted
that an added measure of safety is taken in that small arms range
operating procedures require a lookout to be present during range
operations as a positive means to verify the danger zone is clear. If a
fisherman or other vessel inadvertently enters the danger zone area,
range operations would cease until the danger zone is clear. In
addition, small arms range operating procedures require specially
qualified range supervisors and operators to oversee small arms range
operations. These specially qualified personnel ensure all small arms
range safety procedures are followed and provide an added layer of
safety to prevent errant bullets from leaving the confines of the small
arms range berms.
A Notice to Mariners will be issued each time the range is active.
These notices are issued to notify mariners that an established danger
zone is active. In addition, after this final rule is issued, nautical
charts will be updated by the National Oceanic and Atmospheric
Administration's Office of Coast Survey to identify the boundaries of
the danger zone for mariner
[[Page 43691]]
awareness and route planning. Due to the many safety layers and
advanced notification actions mentioned above, which have been proven
effective, the Navy is not planning a warning system located at
Gregorio D. Perez Marina.
Multiple commenters expressed concern with the potential for the
firing range and danger zone to contribute to contamination of the air
and water. Specific concerns included the introduction of lead,
antimony, copper, zinc, nickel, arsenic, and other contaminants into
the environment that could pose an environmental or human health
threat. One commenter wanted to know if contaminants from the danger
zone would impact the Haputo Ecological Reserve.
The establishment of a danger zone in the Pacific Ocean adjacent to
the FSAR is an administrative procedure that restricts navigable access
to a portion of the ocean during small arms training activities to
protect public safety. There will be no construction, structures or in-
water work associated with the establishment of the danger zone. The
establishment of the danger zone by the Corps will not result in the
release of contaminants. The operation of the FSAR itself, including
the potential environmental impacts caused by rounds fired from the
FSAR, falls outside of the Corps' regulatory authorities. Activation of
the danger zone itself during small arms training activities would not
result in any physical effects to air or water quality, or any physical
effects to Haputo Ecological Reserve.
Several commenters expressed concerns about erosion, accretion, and
noise associated with the danger zone. One commenter asked whether the
danger zone would violate the conditions to the 1983 Memorandum of
Understanding with the Government of Guam that created the Haputo
Ecological Reserve.
The establishment of the danger zone involves no construction,
structures or in-water work associated with the establishment of the
danger zone. Therefore, the establishment of this danger zone will not
affect erosion, accretion, or noise. In compliance with the Coastal
Zone Management Act, the 1983 Memorandum of Understanding committed the
Navy to the establishment of two Ecological Reserve Areas (ERAs) as
mitigation for the adverse environmental impacts anticipated to accrue
from the construction of an ammunition wharf at Adotgan Point in outer
Apra Harbor, what has since become known as Kilo Wharf. The two ERAs to
be established were the Orate Peninsula Cliff ERA and the Haputo ERA.
While there were several conditions associated with the establishment
of the Orate Peninsula ERA, none were established for the Haputo ERA
aside from the requirement to take ``all possible measures'' to
``preserve its quality for the people of Guam, now and for the
future.'' It was further stipulated that ``it be protected from
development of any kind and from the taking or destruction of its
natural and historic resources.'' At the time the ERA was designated,
the FSAR had been in existence for nearly a decade, and it has operated
since with little change in frequency or manner of use. There are no
changes in the size, location, operation of the range, the type of
small arms utilized, or the tempo of operations being proposed. As a
result, the establishment of the danger zone would not violate the
conditions of the 1983 Memorandum of Understanding with the Government
of Guam that created the Haputo ERA.
Multiple commenters asked whether there are practicable
alternatives to the establishment of a danger zone and what
alternatives were evaluated. A couple commenters asked if there were
upland alternatives or if private land or private ranges could be used.
One commenter asked if a system could be designed or constructed to
prevent ammunition from entering the area of the proposed danger zone
whereby a danger zone would not be necessary.
The FSAR has been in existence since 1975, and the establishment of
this danger zone is necessary to protect the public during small arms
training activities. It was not necessary to evaluate alternative sites
because the danger zone is needed at this particular site. As discussed
above, the boundaries of the danger zone were established to address
the potential area where a small arms projectile could travel, to
protect the public during small arms training exercises.
Procedural Requirements
a. Regulatory Planning and Review. Executive Orders 12866 and 13563
direct agencies to assess the costs and benefits of available
regulatory alternatives and, if regulation is necessary, to select
regulatory approaches that maximize net benefits. Executive Order 13771
directs agencies to control regulatory costs through a budgeting
process. For the reasons stated below, this final rule is not a
``significant regulatory action'' under Executive Order 12866.
Accordingly, this final rule has not been reviewed by the Office of
Management and Budget (OMB), and pursuant to OMB guidance it is exempt
from the requirements of Executive Order 13771.
The Corps determined this final rule is not a significant
regulatory action. This regulatory action determination is based on the
rule text governing the danger zone, which allows any vessel that needs
to transit the danger zone to expeditiously transit through the danger
zone when the small arms range is in use. When the range is not in use,
the danger zone will be open to normal maritime traffic and to all
activities, include anchoring and loitering.
b. Review Under the Regulatory Flexibility Act. This rule has been
reviewed under the Regulatory Flexibility Act (Pub. L. 96-354). The
Regulatory Flexibility Act generally requires an agency to prepare a
regulatory flexibility analysis of any rule subject to notice-and-
comment rulemaking requirements under the Administrative Procedure Act
or any other statute unless the agency certifies that the rule will not
have a significant economic impact on a substantial number of small
entities (i.e., small businesses and small governments). The danger
zone is necessary to protect public safety during use of the small arms
range. To minimize impacts to maritime traffic, the Navy will stop
firing when the range is in use to allow vessels to transit through the
danger zone. When the range is not in use, the danger zone will be open
to normal maritime traffic and all activities, including anchoring and
loitering. After considering the economic impacts of this danger zone
regulation on small entities, I certify that this action will not have
a significant economic impact on a substantial number of small
entities.
c. Review Under the National Environmental Policy Act. An
environmental assessment (EA) has been prepared for the establishment
of this danger zone. The Corps has concluded that the establishment of
the danger zone will not have a significant impact to the quality of
the human environment and, therefore, preparation of an EIS is not
required. The final EA and Finding of No Significant Impact may be
reviewed at the District Office listed at the FOR FURTHER INFORMATION
CONTACT section, above.
d. Unfunded Mandates Act. This rule does not impose an enforceable
duty among the private sector and, therefore, it is not a Federal
private sector mandate and it is not subject to the requirements of
either Section 202 or Section 205 of the Unfunded Mandates Act. We have
also found under Section 203 of the Act, small governments will not be
significantly and uniquely affected by this rulemaking.
[[Page 43692]]
e. Congressional Review Act. The Congressional Review Act, 5 U.S.C.
801 et seq., generally provides that before a rule may take effect, the
agency promulgating the rule must submit a rule report, which includes
a copy of the rule, to each House of the Congress and to the
Comptroller General of the United States. The Corps will submit a
report containing the final rule and other required information to the
U.S. Senate, the U.S. House of Representatives, and the Comptroller
General of the United States. A major rule cannot take effect until 60
days after it is published in the Federal Register. This final rule is
not a ``major rule'' as defined by 5 U.S.C. 804(2).
List of Subjects in 33 CFR Part 334
Danger zones, Marine safety, Navigation (water), Restricted areas,
Waterways.
For the reasons set out in the preamble, the Corps amends 33 CFR
part 334 as follows:
PART 334--DANGER ZONE AND RESTRICTED AREA REGULATIONS
0
1. The authority citation for part 334 continues to read as follows:
Authority: 40 Stat. 266 (33 U.S.C. 1) and 40 Stat. 892 (33
U.S.C. 3).
0
2. Add Sec. 334.1415 to read as follows:
Sec. 334.1415 Pacific Ocean, adjacent to the Finegayan Small Arms
Range at Naval Base Guam Telecommunication Site, on the northwestern
coast of Guam; danger zone.
(a) The area. Coordinates are bounded by the following four points:
Point A (13[deg]34'57'' N; 144[deg]49'53'' E) following the high tide
line to Point B (13[deg]35'49'' N; 144[deg]47'59'' E), Point C
(13[deg]34'57'' N; 144[deg]47'45'' E), and Point D (13[deg]34'48'' N;
144[deg]49'50'' E). The datum for these coordinates is NAD-83.
(b) The regulation. (1) Vessels or persons shall expeditiously
transit through the danger zone when the small arms range is in use.
Vessels shall not be permitted to anchor or loiter within the danger
zone while the range is in use. Range activities shall be halted until
all vessels are cleared from the danger zone. When the range is not in
use, the danger zone shall be open to normal maritime traffic and all
activities to include anchoring and loitering.
(2) When the range is in use, the person(s) or officer(s) in charge
shall display a red flag from a conspicuous and easily-seen location
along the nearby shore to signify that the range is in use and will
post lookouts to ensure the safety of all vessels transiting through
the area. If the range is in use at night, a strobe light shall be
displayed from the same conspicuous and easily-seen location in lieu of
flags. The range shall not be used when visibility is equal to or less
than the maximum range of the weapons being used at the facility.
(c) Enforcement. The restrictions on public access in this section
shall be enforced by the Commander, Joint Region Marianas, and such
agencies as the Commander may designate in writing.
Approved:
Thomas P. Smith,
Chief, Operations and Regulatory Division Directorate of Civil Works.
[FR Doc. 2020-14131 Filed 7-17-20; 8:45 am]
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