[Federal Register: October 31, 2007 (Volume 72, Number 210)]
[Rules and Regulations]
[Page 61518-61522]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31oc07-8]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket No. CGD14-07-002]
RIN 1625-AA87
Security Zone; Nawiliwili Harbor, Kauai, HI
AGENCY: Coast Guard, DHS.
ACTION: Temporary final rule.
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SUMMARY: The Coast Guard is creating a temporary security zone in the
waters of Nawiliwili Harbor, Kauai, and on the land of the jetty south
of Nawiliwili Park, including the jetty access road commonly known as
Jetty Road. This zone is intended to enable the Coast Guard and its law
enforcement partners to better protect people, vessels, and facilities
in and around Nawiliwili Harbor in the face of non-compliant
obstructers who have impeded, and threaten to continue impeding, the
safe passage of the Hawaii Superferry in Nawiliwili Harbor. This rule
complements, but does not replace or supersede, existing regulations
that establish a moving 100-yard security zone around large passenger
vessels like the Hawaii Superferry.
DATES: This rule is effective from November 1, 2007, through November
30, 2007.
ADDRESSES: Documents indicated in this preamble as being available in
the docket are part of docket CGD14-07-002 and are available for
inspection and copying at U.S. Coast Guard District 14, Room 9-130,
PJKK Federal Building, 300 Ala Moana Blvd., Honolulu, Hawaii 96850
between 7 a.m. and 3:30 p.m., Monday through Friday, except Federal
holidays.
FOR FURTHER INFORMATION CONTACT: Lieutenant Sean Fahey, U.S. Coast
Guard District 14 at (808) 541-2106.
SUPPLEMENTARY INFORMATION:
Regulatory Information
On October 3, 2007, we published a notice of proposed rulemaking
(NPRM) entitled ``Security Zone; Nawiliwili Harbor, Kauai, Hawaii'' in
the Federal Register (72 FR 56308), identified by docket number USCG-
2007-29354. The comment period for that NPRM was originally set to
expire on October 24, 2007. Although we received many comments on the
NPRM, a few people wishing to submit comments expressed difficulty
using the Federal eRulemaking Portal, one of the four
[[Page 61519]]
methods available to submit comments on the NPRM.
Recently, the Coast Guard migrated its online rulemaking docket
from the Docket Management System (DMS) to the Federal Docket
Management System (FDMS). (72 FR 54315, Sept. 24, 2007.) This migration
has been accompanied by transition difficulties and delays in comments
being posted on FDMS. To accommodate the public, the comment period for
that rulemaking (USCG-2007-29354) has been extended until November 20,
2007. A separate notice extending the comment period for the USCG-2007-
29354 NPRM can be found elsewhere in this issue of the Federal
Register.
This temporary final rule, identified by docket CGD14 07-002, is a
separate emergency rulemaking that will maintain a security zone for
Nawiliwili Harbor, Kauai from November 1 through November 30, 2007,
after an existing security zone (72 FR 50877, Sept. 5, 2007) expires
and while we complete the USCG-2007-29354 notice-and-comment
rulemaking. We did not publish an NPRM for this regulation.
Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause
exists for not publishing an NPRM for this temporary rule. It would be
contrary to public interest not to maintain a security zone for
Nawiliwili Harbor until the USCG-2007-29354 rulemaking is completed.
Though operation of the Hawaii Superferry from Oahu to Kauai has
been voluntarily suspended by the operating company, operations could
resume at any time. As of October 24, 2007, there are no, nor have
there been, any state court injunctions or other legal prohibitions on
the Superferry resuming operations between Oahu and Kauai. Although the
Superferry's operating company announced on September 21, 2007, that it
was ``indefinitely'' suspending operations into and out of Kauai, that
suspension is only voluntary; nothing binds the company to adhere to
that suspension of operations, and in fact, it could decide to sail for
Kauai at any time. Furthermore, the Hawaii legislature has announced
that it will commence a special legislative session beginning on
October 24, 2007, at which, among other things, it intends to consider
a bill that would allow the Superferry to operate into and out of
Hawaii's ports while an environmental impact statement regarding
Superferry operations is being prepared. To the extent this legislative
action may permit the Superferry to resume operations into and out of
Maui, which it is currently enjoined from doing, and to the extent the
operating company's decision to ``indefinitely'' suspend operations
into and out of Kauai was tied to the company's inability to operate
into and out of Maui, this legislative action may well have the net
effect of causing the Superferry's operating company to renew its
desire to resume operations to Kauai as soon as possible. Delay in
implementing this rule would expose obstructers in the water and
ashore, as well as ferry passengers and crew, to undue hazards due to
the obstructers' tactics of entering Nawiliwili Harbor from land and
waterfront facilities adjacent to the harbor and using themselves as
human barriers to obstruct the Superferry's movement into Nawiliwili
Harbor, a transit that under the best of circumstances is difficult to
make due to the small size of the Harbor.
For the same reasons, under 5 U.S.C. 533(d)(3), the Coast Guard
finds that good cause exists for making this rule effective less than
30 days after publication in the Federal Register.
Background and Purpose
The Hawaii Superferry (HSF) is a 349-foot large passenger vessel
documented by the U.S. Coast Guard with an endorsement for coastwise
trade, and certificated for large passenger vessel service in the
United States. The HSF, operating Hawaii's first inter-island vehicle-
passenger service, is intended to provide service among the islands of
Oahu, Maui, and Kauai.
The HSF enters Kauai at Nawiliwili Harbor, a federally maintained
waterway. During the HSF's inaugural commercial trip to Kauai on August
26, 2007, nearly 40 swimmers and obstructers on kayaks and surfboards
blocked Nawiliwili Harbor's navigable channel entrance to prevent the
lawful entry of the HSF into Kauai. Many of the obstructers entered the
water from the jetty that is south of Nawiliwili Park, which is
adjacent to the Matson shipping facility in Nawiliwili Harbor. Other
demonstrators ashore on the jetty threw rocks and bottles at Coast
Guard personnel who were conveying detained obstructers to shore. Coast
Guard Station Kauai resources were eventually able to clear the channel
for the HSF's arrival while also ensuring the personal safety of the
waterborne obstructers. The HSF was able to dock on August 26, 2007.
On the following day, August 27, 2007, approximately 70 persons
entered the water again to block the channel entrance, thereby
preventing the HSF from docking in Nawiliwili Harbor. Due to the
difficulty of maneuvering in the small area of Nawiliwili Harbor, and
in the interest of ensuring the safety of the protesters, the HSF's
master chose not to enter the channel until the Coast Guard cleared the
channel of obstructers. However, because the vessel remained outside
the harbor, and because the obstructers did not approach within 100
yards of the vessel, the existing security zone for large passenger
vessels (33 CFR 165.1410) did not provide the Coast Guard with the
authority to control obstructer entry into Nawiliwili Harbor or clear
the channel of obstructers before the HSF commenced its transit into
the harbor.
After waiting 3 hours, and with nearly 20 obstructers still in the
water actively blocking the HSF, the HSF was forced to return to Oahu
without mooring in Kauai. This decision was made by the Superferry's
master, in consultation with company officials.
As a result of the events of August 26 through 27, 2007, the HSF
voluntarily suspended operations between Oahu and Kauai on August 28,
2007. HSF's goal, however, was and is to resume operations between Oahu
and Kauai as soon as possible. As of October 24, 2007, there are no,
nor have there been, any state court injunctions or other legal
prohibitions on the HSF resuming operations between Oahu and Kauai.
Although the Superferry's operating company announced on September
21, 2007, that it was ``indefinitely'' suspending operations into and
out of Kauai, that suspension is only voluntary; nothing binds the
company to adhere to that suspension of operations, and in fact, it
could decide to sail for Kauai at any time. Furthermore, the Hawaii
legislature has announced that it will commence a special legislative
session beginning on October 24, 2007, at which, among other things, it
intends to consider a bill that would allow the Superferry to operate
into and out of Hawaii's ports while an environmental impact statement
regarding Superferry operations is being prepared. To the extent this
legislative action may permit the Superferry to resume operations into
and out of Maui, which it is currently enjoined from doing, and to the
extent the operating company's decision to ``indefinitely'' suspend
operations into and out of Kauai was tied to the company's inability to
operate into and out of Maui, this legislative action may well have the
net effect of causing the Superferry's operating company to renew its
desire to resume operations to Kauai as soon as possible.
Responding to the unexpected events of August 26 and 27, 2007, the
Coast Guard's Fourteenth District Commander established a temporary
fixed security
[[Page 61520]]
zone in Nawiliwili Harbor. That emergency rulemaking established a
temporary security zone in order to prevent persons and vessels from
endangering themselves and HSF passengers and crew by attempting to
impede the vessel's passage after it commences the difficult transit
into the harbor. That rule, which became effective September 1, 2007,
was issued by the Coast Guard's Fourteenth District Commander on August
31, 2007 (72 FR 50877, September 5, 2007).
The purpose of this temporary rule, as with the rule that is
expiring October 31, is several-fold. First, by designating significant
portions of the waters of Nawiliwili Harbor as a security zone,
activated for enforcement 60 minutes before the HSF's arrival into the
zone through 10 minutes after its departure from the zone, this
temporary rule provides the Coast Guard and its law enforcement
partners the authority to prevent persons and vessels from endangering
themselves and the HSF passengers and crew during attempts to impede
the vessel's passage after it commences the difficult transit into the
harbor. Extending the security zone to Nawiliwili Jetty and its access
road provides law enforcement personnel with the authority necessary to
control access into the water so the HSF may enter and depart the
harbor safely and unimpeded by obstructers. Furthermore, closing off
the jetty and its access road prevents violent protesters from
continuing to impede law enforcement operations and endanger law
enforcement personnel by throwing rocks, bottles, and other dangerous
objects. Finally, the security zone makes land adjacent to the harbor
available for law enforcement purposes, and in fact will be used by the
Patrol Commander (the person in overall command of all waterborne law
enforcement assets present in Nawiliwili Harbor enforcing the security
zone) as the command post during any Superferry protests.
This temporary final rule follows the original temporary final rule
that is set to expire on October 31, 2007. There is continued
uncertainty regarding when, if ever, the HSF might resume service into
Nawiliwili Harbor. The resolve of obstructers to continue attempting to
impede the Superferry's passage into and through Nawiliwili Harbor,
should it indeed resume service there, has been vocally manifested.
Therefore, the Coast Guard has determined there is a need to ensure
that law enforcement personnel will still have a fixed security zone
available to them beyond the expiration date of the original temporary
final rule to facilitate the safe arrival of the HSF, should it again
return to Nawiliwili Harbor.
Discussion of the Rule
This temporary rule is in effect from November 1, 2007, until
November 30, 2007. It creates a security zone in most of the waters of
Nawiliwili Harbor, and on Nawiliwili Jetty in Nawiliwili Harbor. The
security zone will be activated for enforcement 60 minutes before the
Hawaii Superferry's arrival into the zone, and remain activated for 10
minutes after the Hawaii Superferry's departure from the zone. The
activation of the zone for enforcement will be announced by marine
information broadcast and by a red flag, illuminated after sunset,
displayed from Pier One and the Harbor Facility Entrance on Jetty Road.
During its period of activation and enforcement, entry into the land
and water areas of the security zone are prohibited without the
permission of the Captain of the Port, Honolulu, or his or her
designated representative.
In preparing this temporary rulemaking, the Coast Guard made sure
to consider the rights of lawful protestors. To that end, the Coast
Guard excluded from the security zone two regions which create a
sizeable area of water in which demonstrators may lawfully assemble and
convey their message in a safe manner to their intended audience. These
areas include the waters west of a line running from the southeastern-
most point of the breakwater of Nawiliwili Small Boat Harbor due south
to the south shore of the harbor, and the waters from Kalapaki Beach
south to a line extending from the western most point of Kukii Point
due west to the Harbor Jetty. These areas of the harbor not included in
the security zone are completely accessible to anyone who desires to
enter the water, and are fully visible to observers ashore, at the HSF
mooring facility, aboard the HSF when transiting the harbor, and from
the air.
The Coast Guard also took into account the lawful users of
Nawiliwili Harbor in its creation of this rule. As previously noted,
the rule will only be activated 1 hour before the HSF's arrival into
port, and will be deactivated 10 minutes after the HSF departs the
port. The harbor is fully available to all users during the period when
the zone is not activated. Furthermore, the rule affords persons who
want to use the harbor, even during a period when the zone is
activated, with the opportunity to request permission of the Captain of
the Port to do so.
Under 33 CFR 165.33, entry by persons or vessels into the security
zone during an enforcement period is prohibited unless authorized by
the Coast Guard Captain of the Port, Honolulu or his or her designated
representatives.
Operation of any type of vessel, including every description of
watercraft or other artificial contrivance used, or capable of being
used, as a means of transportation on water, within the security zone
during an enforcement period is prohibited. If a vessel is found to be
operating within the security zone during an enforcement period without
permission of the Captain of the Port, Honolulu, and refuses to leave,
the vessel is subject to seizure and forfeiture.
All persons and vessels permitted in the security zone during an
enforcement period must comply with the instructions of the Coast Guard
Captain of the Port or the designated on-scene patrol personnel. These
personnel include commissioned, warrant, and petty officers of the
Coast Guard and other persons permitted by law to enforce this
regulation. Upon being hailed by an authorized vessel or law
enforcement officer using siren, radio, flashing light, loudhailer,
voice command, or other means, the operator of a vessel must proceed as
directed.
If authorized passage through the security zone, a vessel must
operate at the minimum speed necessary to maintain a safe course and
must proceed as directed by the Captain of the Port or his or her
designated representatives. While underway with permission of the
Captain of the Port or his or her designated representatives, no person
or vessel is allowed within 100 yards of the Hawaii Superferry when it
is underway, moored, position-keeping, or at anchor, unless authorized
by the Captain of the Port or his or her designated representatives.
When conditions permit, the Captain of the Port, or his or her
designated representatives, may permit vessels that are at anchor,
restricted in their ability to maneuver, or constrained by draft to
remain within the security zone during the enforcement period in order
to ensure navigational safety. Any Coast Guard commissioned, warrant,
or petty officer, and any other person permitted by law, may enforce
the regulations in this section.
Regulatory Evaluation
This rule is not a ``significant regulatory action'' under section
3(f) of Executive Order 12866, Regulatory Planning and Review, and does
not require an assessment of potential costs and benefits under section
6(a)(3) of that Order. The Office of Management and
[[Page 61521]]
Budget has not reviewed it under that Order.
We expect the economic impact of this rule to be so minimal that a
full Regulatory Evaluation is unnecessary. This expectation is based on
the short activation and enforcement duration of the security zone
created by this temporary rule, as well as the limited geographic area
affected by the security zone.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this rule will have a significant economic impact on
a substantial number of small entities. The term ``small entities''
comprises small businesses, not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will
not have a significant economic impact on a substantial number of small
entities. While we are aware that the affected area has small entities,
including canoe and boating clubs and small commercial businesses that
provide recreational services, we anticipate that there will be little
or no impact to these small entities due to the narrowly tailored scope
of the temporary rule, and to the fact that such entities can request
permission from the Captain of the Port to enter the security zone when
it is activated.
If you think that your business, organization, or governmental
jurisdiction qualifies as a small entity and that this rule would have
a significant economic impact on it, please submit a comment (see
ADDRESSES) explaining why you think it qualifies and how and to what
degree this rule would economically affect it.
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small
entities in understanding this rule so that they can better evaluate
its effects on them and participate in the rulemaking. If the rule will
affect your small business, organization, or governmental jurisdiction
and you have questions concerning its provisions or options for
compliance, please contact Lieutenant Sean Fahey, U.S. Coast Guard
District 14, at (808) 541-2106. The Coast Guard will not retaliate
against small entities that question or complain about this rule or any
policy or action of the Coast Guard.
Collection of Information
This rule calls for no new collection of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
Federalism
A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on State or local
governments and would either preempt State law or impose a substantial
direct cost of compliance on them. We have analyzed this rule under
that Order and have determined that it does not have implications for
federalism.
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 $100,000,000 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.
Taking of Private Property
This rule will not effect a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights.
Civil Justice Reform
This 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.
Protection of Children
We have analyzed this rule under Executive Order 13045, Protection
of Children from Environmental Health Risks and Safety Risks. This rule
is not an economically significant rule and does not create an
environmental risk to health or risk to safety that might
disproportionately affect children. While some obstructers used small
children in obstruction tactics, both on land and on shore, during the
August 26 and 27 Superferry arrivals into Kauai, and while online
forums and other sources indicate that organizers are actively
recruiting adolescents and small children with the intent of putting
them into harm's way as obstructers of the Superferry's passage should
it ever again approach and enter Nawiliwili Harbor, any heightened harm
faced by children as a result of these tactics has no relation to the
creation of this rule. Instead, those heightened risks are entirely the
product of persons who recruit and employ adolescents and children to
put themselves at risk of death or serious physical injury by
attempting to physically obstruct the passage of a large passenger
vessel in a small harbor.
Indian Tribal Governments
This rule does not have tribal implications under Executive Order
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.
Energy Effects
We have analyzed this rule under Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. We have determined that it is not a ``significant
energy action'' under that order because it is not a ``significant
regulatory action'' under Executive Order 12866 and is not likely to
have a significant adverse effect on the supply, distribution, or use
of energy. The Administrator of the Office of Information and
Regulatory Affairs has not designated it as a significant energy
action. Therefore, it does not require a Statement of Energy Effects
under Executive Order 13211.
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 the Office of Management and Budget, with an explanation of why
using these standards would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., specifications of materials, performance, design, or
operation; test methods; sampling procedures; and related management
systems practices) 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.
[[Page 61522]]
Environment
We have analyzed this temporary rule under Commandant Instruction
M16475.1D which guides the Coast Guard in complying with the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and
have concluded that there are no factors in this case that would limit
the use of a categorical exclusion under section 2.B.2 of the
Instruction. Therefore, under figure 2-1, paragraph (34)(g) of the
Commandant Instruction M16475.1D, this temporary rule is categorically
excluded from further environmental documentation. An ``Environmental
Analysis Checklist'' and ``Categorical Exclusion Determination''
supporting this conclusion are available in the docket where indicated
under ADDRESSES.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.
0
For the reasons discussed in the preamble, the Coast Guard amends 33
CFR part 165 as follows:
PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS
0
1. The authority citation for part 165 continues to read as follows:
Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50
U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L.
107-295, 116 Stat. 2064; Department of Homeland Security Delegation
No. 0170.1.
0
2. Add a new temporary Sec. 165.T14-163 to read as follows:
Sec. 165.T14-163 Security Zone; Nawiliwili Harbor, Kauai, HI.
(a) Location. The following land areas, and water areas from the
surface of the water to the ocean floor, are a security zone that is
activated as described in paragraph (c) of this section, and enforced
subject to the provisions of paragraph (d) of this section: All waters
of Nawiliwili Harbor, Kauai, shoreward of the Nawiliwili Harbor COLREGS
DEMARCATION LINE (See 33 CFR 80.1450), excluding the waters west of a
line running from the southeastern most point of the breakwater of
Nawiliwili Small Boat Harbor due south to the south shore of the
harbor, and excluding the waters from Kalapaki Beach south to a line
extending from the western most point of Kukii Point due west to the
Harbor Jetty. The land of the jetty south of Nawiliwili Park, including
the jetty access road, commonly known as Jetty Road, is included within
the security zone.
(b) Effective period. This section is effective from November 1,
2007, through November 30, 2007. It will be activated for enforcement
pursuant to paragraph (c) of this section.
(c) Enforcement periods. The zone described in paragraph (a) of
this section will be activated for enforcement 60 minutes before the
Hawaii Superferry's arrival into the zone and remain activated for 10
minutes after the Hawaii Superferry's departure from the zone. The
activation of the zone for enforcement will be announced by marine
information broadcast, and by a red flag, illuminated between sunset
and sunrise, displayed from Pier One and the Harbor Facility Entrance
on Jetty Road.
(d) Regulations. (1) Under 33 CFR 165.33, entry by persons or
vessels into the security zone created by this section and activated as
described in paragraph (c) of this section is prohibited unless
authorized by the Coast Guard Captain of the Port, Honolulu or his or
her designated representatives. Operation of any type of vessel,
including every description of watercraft or other artificial
contrivance used, or capable of being used, as a means of
transportation on water, within the security zone is prohibited. If a
vessel is found to be operating within the security zone without
permission of the Captain of the Port, Honolulu, and refuses to leave,
the vessel is subject to seizure and forfeiture.
(2) All persons and vessels permitted in the security zone must
comply with the instructions of the Coast Guard Captain of the Port or
the designated on-scene patrol personnel. These personnel include
commissioned, warrant, and petty officers of the Coast Guard and other
persons permitted by law to enforce this regulation. Upon being hailed
by an authorized vessel or law enforcement officer using siren, radio,
flashing light, loudhailer, voice command, or other means, the operator
of a vessel must proceed as directed.
(3) If authorized passage through the security zone, a vessel must
operate at the minimum speed necessary to maintain a safe course and
must proceed as directed by the Captain of the Port or his or her
designated representatives. While underway with permission of the
Captain of the Port or his or her designated representatives, no person
or vessel is allowed within 100 yards of the Hawaii Superferry when it
is underway, moored, position-keeping, or at anchor, unless authorized
by the Captain of the Port or his or her designated representatives.
(4) When conditions permit, the Captain of the Port, or his or her
designated representatives, may permit vessels that are at anchor,
restricted in their ability to maneuver, or constrained by draft to
remain within the security zone in order to ensure navigational safety.
(e) Enforcement officials. Any Coast Guard commissioned, warrant,
or petty officer, and any other person permitted by law, may enforce
the regulations in this section.
Dated: October 24, 2007.
Sally Brice-O'Hara,
Rear Admiral, U.S. Coast Guard, Commander, Fourteenth Coast Guard
District.
[FR Doc. 07-5413 Filed 10-26-07; 2:34 pm]
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