[Federal Register: December 16, 2004 (Volume 69, Number 241)]
[Proposed Rules]
[Page 75287-75291]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16de04-20]
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DEPARTMENT OF DEFENSE
Department of the Army
32 CFR Part 637
RIN 0702-AA44
Military Police Investigations
AGENCY: Department of the Army, DoD.
ACTION: Proposed rule; request for comments.
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SUMMARY: The Department of the Army proposes to add its regulation
concerning military police investigations. The regulation prescribes
policies and procedures on types and categories of offenses
investigated by Military Police and DA Civilian detectives/
investigators.
DATES: Comments submitted to the address below on or before February
14, 2005 will be considered.
ADDRESSES: You may submit comments, identified by ``32 CFR Part 637 and
RIN 0702-AA44'' in the subject line, by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
E-mail: james.crumley@hqda-aoc.army.pentagon.mil. Include
32 CFR part 637 and RIN 0702-AA44 in the subject line of the message.
Mail: Headquarters, Department of the Army, Office of the
Provost Marshal General, ATTN: DAPM-MPD-LE, 2800 Army Pentagon,
Washington, DC 20310-2800.
FOR FURTHER INFORMATION CONTACT: James Crumley (703) 692-6721.
SUPPLEMENTARY INFORMATION:
A. Background
This rule has not previously been published. The Administrative
Procedure Act, as amended by the Freedom of Information Act requires
that certain policies and procedures and other information concerning
the Department of the Army be published in the Federal Register. The
policies and procedures covered by this regulation fall into that
category.
B. Regulatory Flexibility Act
The Department of the Army has determined that the Regulatory
Flexibility Act does not apply because the proposed rule does not have
a significant economic impact on a substantial number of small entities
within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601-612.
C. Unfunded Mandates Reform Act
The Department of the Army has determined that the Unfunded
Mandates Reform Act does not apply because the proposed rule does not
include a mandate that may result in estimated costs to State, local or
tribal governments in the aggregate, or the private sector, of $100
million or more.
D. National Environmental Policy Act
The Department of the Army has determined that the National
Environmental Policy Act does not apply because the proposed rule does
not have an adverse impact on the environment.
E. Paperwork Reduction Act
The Department of the Army has determined that the Paperwork
Reduction Act does not apply because the proposed rule does not involve
collection of information from the public.
F. Executive Order 12630 (Government Actions and Interference With
Constitutionally Protected Property Rights)
The Department of the Army has determined that Executive Order
12630 does not apply because the proposed rule does not impair private
property rights.
[[Page 75288]]
G. Executive Order 12866 (Regulatory Planning and Review)
The Department of the Army has determined that according to the
criteria defined in Executive Order 12866 this proposed rule is not a
significant regulatory action. As such, the proposed rule is not
subject to Office of Management and Budget review under section 6(a)(3)
of the Executive Order.
H. Executive Order 13045 (Protection of Children From Environmental
Health Risk and Safety Risks)
The Department of the Army has determined that according to the
criteria defined in Executive Order 13045 this proposed rule does not
apply.
I. Executive Order 13132 (Federalism)
The Department of the Army has determined that according to the
criteria defined in Executive Order 13132 this proposed rule does not
apply because it will not have a substantial effect 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.
Jeffery B. Porter,
Chief, Law Enforcement Policy and Oversight Section.
List of Subjects in 32 CFR Part 637
Crime. Investigations. Law. Law enforcement. Law enforcement
officers. Military law. Search Warrant.
For reasons stated in the preamble the Department of the Army
proposes to add Part 637 to Subchapter I of Title 32 to read as
follows:
PART 637--MILITARY POLICE INVESTIGATIONS
Subpart A--Investigations
Sec.
637.1 General.
637.2 Use of MPI and DAC Detectives/Investigators.
637.3 Installation Commander.
637.4 Military Police and the USACIDC.
637.5 Off-post investigations.
637.6 Customs investigations.
637.7 Drug enforcement activities.
637.8 Identification of MPI.
637.9 Access to U.S. Army facilities and records.
637.10 Authority to apprehend or detain.
637.11 Authority to administer oaths.
637.12 Legal considerations.
637.13 Retention of property.
637.14 Use of National Crime Information Center (NCIC).
637.15 Polygraph activities.
637.16 Evidence.
637.17 Police intelligence.
637.18 Electronic equipment procedures.
637.19 Overseas MP desk.
637.20 Security surveillance systems.
637.21 Recording interviews and interrogations.
Authority: 28 U.S.C. 534 note, 42 U.S.C. 10601, 18 U.S.C. 922,
42 U.S.C. 14071, 10 U.S.C. 1562, 10 U.S.C. Chap. 47.
Subpart A--Investigations
Sec. 637.1 General.
(a) Military Police Investigators (MPI) and Department of the Army
Civilian (DAC) detectives/investigators fulfill a special need for an
investigative element within the military police to investigate many
incidents, complaints, and matters not within U.S. Army Criminal
Investigation Command (USACIDC) jurisdiction, but which cannot be
resolved immediately through routine military police operations.
Investigative personnel are assets of the installation or activity
commander, under the supervision of the local provost marshal. USACIDC
elements will provide investigative assistance in the form of
professional expertise, laboratory examinations, polygraph
examinations, or any other assistance requested which does not distract
from the USACIDC mission of investigating serious crimes. A spirit of
cooperation and close working relationship is essential between USACIDC
and the provost marshal office in order to accomplish the mission and
project a professional police image.
(b) Creation of a formalized investigation program does not
constitute the establishment of a dual ``detective'' force. The
separation of investigative responsibilities is very distinct. The MPI
Program is neither a career program nor a separate Military
Occupational Specialty (MOS). Individuals in the MPI Program are
specially selected, trained, and experienced military or civilian men
and women performing traditional military police functions. Military
personnel are identified by their additional skill identifiers (ASI V5)
and may be employed in any assignment appropriate to their grade and
MOS.
(c) The provost marshal may authorize wearing of civilian clothing
for the MPI investigative mission.
(d) MPI and DAC detective/investigator personnel must be familiar
with and meet the requirements of Army Regulation (AR) 190-14 (Carrying
of Firearms and Use of Force for Law Enforcement and Security Duties).
Sec. 637.2 Use of MPI and DAC Detectives/Investigators.
Only those matters requiring investigative development will be
referred to the MPI for investigation. Provost marshals will develop
procedures to determine which incidents will be referred to the MPI for
completion and which will be retained and completed by uniformed MP
personnel. Except as otherwise provided, MPI and DAC detectives/
investigators will normally be employed in the following
investigations:
(a) Offenses for which the maximum punishment listed in the Table
of Maximum Punishment, Manual for Courts-Martial, United States, 2002
is confinement for 1 year or less. Provisions of the Federal
Assimilative Crimes Act will also be considered when assigning cases to
MPI. The same punishment criteria apply.
(b) Property-related offenses when the value is less than $1,000
provided the property is not of a sensitive nature, such as government
firearms, ammunition, night vision devices, or controlled substances.
(c) Offenses involving use and/or possession of non-narcotic
controlled substances when the amounts are indicative of personal use
only. Military police will coordinate with the local USACIDC element in
making determinations of ``personal use''. MPI and DAC detectives/
investigators may be employed in joint MPI/USACIDC drug suppression
teams; however, the conduct of such operations and activities remain
the responsibility of USACIDC. When employed under USACIDC supervision,
MPI and DAC detectives/investigators may also be utilized to make
controlled buys of suspected controlled substances.
(d) Activities required for the security and protection of persons
and property under Army control, to include support of Armed Forces
Disciplinary Control Boards as prescribed in AR 190-24. If MPI detect a
crime-conducive condition during the course of an investigation, the
appropriate physical security activity will be promptly notified.
Crime-conducive conditions will also be identified in military police
reports.
(e) Allegations against MP personnel, when not within the
investigative responsibilities of USACIDC.
(f) Offenses committed by juveniles, when not within the
investigative responsibilities of USACIDC.
(g) Gang or hate crime related activity, when not within the
investigative responsibilities of USACIDC.
Sec. 637.3 Installation Commander.
The installation commander, whose responsibilities include ensuring
good order and discipline on his installation, has authority to order
the initiation of a criminal investigation upon receipt of information
of activity of a criminal nature occurring on the installation.
[[Page 75289]]
Sec. 637.4 Military Police and the USACIDC.
(a) The military police or the USACIDC are authorized to
investigate allegations of criminal activity occurring on the
installation. Nothing in this paragraph is intended to conflict with or
otherwise undermine the delineation of investigative responsibilities
between the military police and the USACIDC as set forth in AR 195-2.
(b) When investigative responsibility is not clearly defined, and
the matter cannot be resolved between military police investigations
supervisors and USACIDC duty personnel, or between military police
investigations supervisors and unit commanders, the provost marshal
will be informed and will resolve the matter with the appropriate
USACIDC activity commander/Special Agent in Charge (SAC) or unit
commander.
(c) The control and processing of a crime scene and the collection
and preservation of the evidence are the exclusive responsibilities of
the investigator or supervisor in charge of the crime scene when the
military police have investigative responsibility. To prevent the
possible loss or destruction of evidence, the investigator or
supervisor in charge of the crime scene is authorized to exclude all
personnel from the scene. The exercise of this authority in a
particular case may be subject to the requirement to preserve human
life and the requirement for continuing necessary operations and
security. These should be determined in conjunction with the
appropriate commander and, where applicable, local host country law
enforcement authorities.
(d) Unit commanders should consult with the installation provost
marshal concerning all serious incidents. Examples of incidents
appropriate for investigation at the unit level include simple assaults
not requiring hospitalization and not involving a firearm, or wrongful
damage to property of a value under $1,000. Other incidents should be
immediately referred to the installation provost marshal.
(e) The military police desk is the official point of contact for
initial complaints and reports of offenses. The provisions of AR 190-45
are to be followed for all military police records, reports, and
reporting.
(1) When incidents are reported directly to a USACIDC field
element, USACIDC may either direct the reporting person to the MP desk
or report the incident to the MP desk themselves.
(2) Upon receipt of the complaint or report of offense, the MP desk
will dispatch an available patrol to the scene of the incident. The
patrol will take appropriate measures to include locating the
complainant, witnesses, suspects, and victims, apprehending offenders,
securing the crime scene, rendering emergency assistance, determining
and reporting to the MP desk, by the most expeditious means possible,
the appropriate activity having investigative responsibility.
(f) In those cases in which the USACIDC has an ongoing
investigation (typically fraud and narcotics matters), they may delay
notification to the military police to avoid compromising their
investigation.
(g) Procedures will be developed to ensure mutual cooperation and
support between MPI, DAC detectives/investigators and USACIDC elements
at each investigative level; however, MPI, DAC detectives/investigators
and USACIDC personnel will remain under command and control of their
respective commanders at all times.
(1) With the concurrence of the commander concerned, MPI and DAC
detectives/investigators may provide assistance to USACIDC whenever
elements assume responsibility for an investigation from MPI.
(2) When requested by a USACIDC region, district, or the special
agent-in-charge of a resident agency, the provost marshal may provide
MPI or DAC detective/investigator assistance to USACIDC on a case-by-
case basis or for a specified time period.
(3) With the concurrence of the appropriate USACIDC commander, CID
personnel may be designated to assist MPI or DAC detectives/
investigators on a case-by-case basis without assuming control of the
investigation.
(4) Modification of investigative responsibilities is authorized on
a local basis if the resources of either USACIDC or the military police
cannot fully support their investigative workload and suitable
alternatives are not available. Such modifications will be by written
agreement signed by the provost marshal and the supporting USACIDC
commander. Agreements will be in effect for no more than two years
unless sooner superseded by mutual agreement.
Sec. 627.5 Off-post investigations.
(a) In Continental United States (CONUS), civilian law enforcement
agencies, including state, county, or municipal authorities, or a
Federal investigative agency normally investigate incidents occurring
off-post. When an incident of substantial interest to the U.S. Army
occurs off-post, involving U.S. Army property or personnel, the
military police exercising area responsibility will request copies of
the civilian law enforcement report.
(b) In Overseas areas, off-post incidents will be investigated in
accordance with Status of Forces Agreements and other appropriate U.S.
host nation agreements.
Sec. 637.6 Customs investigations.
(a) Customs violations will be investigated as prescribed in AR
190-41. When customs authorities find unauthorized material such as
contraband, explosives, ammunition, unauthorized or illegal weapons or
property, which may be property of the U.S. Government, notification
must be made via electronic message or facsimile to HQDA, Office of the
Provost Marshal General (DAPM-MPD-LE). All such notifications will be
made to the military police and investigated by CID or the military
police, as appropriate.
(b) Military police will receipt for all seized or confiscated U.S.
Government property and contraband shipped by U.S. Army personnel.
Property receipted for by military police will be accounted for, and
disposed of, in accordance with evidence procedures outlined in AR 195-
5.
(c) When it has been determined that the subject of an MP customs
investigation is no longer a member of the U.S. Army, the investigation
will be terminated, a final report submitted indicating the subject was
released from the U.S. Army, and an information copy of the report
furnished to the appropriate civil investigative agency.
(d) Recovery of weapons and significant amounts of ammunition will
be reported by the U.S. Army element receipting for them from the U.S.
Customs Service in accordance with AR 190-11 and AR 190-45.
Sec. 637.7 Drug enforcement activities.
Provost marshals and U.S. Army law enforcement supervisors at all
levels will ensure that active drug enforcement programs are developed
and maintained, and that priorities for resources reflect the critical
and important nature of the drug enforcement effort.
(a) MPI and DAC detectives/investigators will conduct
investigations of offenses involving use and possession of non-narcotic
controlled substances. A copy of all initial, interim and final
military police reports concerning drug investigations will be provided
to the USACIDC at the local level. Enforcement activities will be
coordinated with the USACIDC at the local level.
(b) Any investigation of offenses involving possession/use of non-
[[Page 75290]]
narcotic controlled substances generated as a result of another USACIDC
investigation may be transferred to MPI with the concurrence of both
the supporting USACIDC commander and provost marshal.
(c) Elements of USACIDC will be provided the opportunity to
interview subjects, suspects or witnesses in MPI or DAC detective
investigations involving controlled substances without assuming
responsibility for the investigation. MPI and DAC detectives/
investigators may also interview subjects, suspects or witnesses of
USACIDC investigations.
Sec. 637.8 Identification of MPI.
(a) During the conduct of investigations, MPI will identify
themselves by presenting their credentials and referring to themselves
as ``INVESTIGATOR.'' When signing military police records the title
``Military Police Investigator'' may be used in lieu of military
titles. Civilian personnel will refer to themselves as ``INVESTIGATOR''
if they are classified in the 1811 series, and as ``DETECTIVE'' if they
are in the 083 series. Civilian personnel will use the title ``DAC
Investigator'' or ``DAC Detective'' corresponding to their
classification series.
(b) The use of titles such as ``Mr.'', ``Mrs.'', ``Miss'' or
``Ms.'' in connection with an individual's identification as an MPI is
prohibited, except when employed in a covert investigative role. When
MPI or DAC detectives/investigators are employed in covert roles,
supervisors will ensure that coordination with USACIDC or civilian law
enforcement agencies is accomplished as appropriate.
Sec. 637.9 Access to U.S. Army facilities and records.
(a) MPI and DAC detectives/investigators will be granted access to
all U.S. Army facilities, records or information when necessary for an
ongoing investigation, consistent with the investigator's clearance for
access to classified national defense information, the requirements of
medical confidentiality, and the provisions of applicable regulations.
(b) Upon presentation of proper identification when conducting an
official investigation, MPI and DAC detectives/investigators will be
authorized access to information contained in medical records and may
request extracts or transcripts. Medical records will remain under the
control of the records custodian who will make them available for
courts-martial or other legal proceedings. Procedures for obtaining
information from medical records are contained in AR 40-66.
Sec. 637.10 Authority to apprehend or detain.
MPI and DAC detectives/investigators have authority to make
apprehensions in accordance with Article 7, Uniform Code of Military
Justice (UCMJ); Rule for Courts-Martial 302 (b)(1), Manual for Courts-
Martial, United States 2002 (Revised Edition). They may detain
personnel for identification and remand custody of persons to
appropriate civil or military authority as necessary. Civilians
committing offenses on U.S. Army installations may be detained until
they can be released to the appropriate Federal, state, or local law
enforcement agency.
Sec. 637.11 Authority to administer oaths.
MPI and DAC detectives/investigators have authority pursuant to
Article 136(b)(4), UCMJ to administer oaths to military personnel who
are subject to the UCMJ. The authority to administer oaths to civilians
who are not subject to the UCMJ is 5 U.S.C. 303(b).
Sec. 637.12 Legal considerations.
(a) Coordination between installation judge advocates and
investigators must occur during the conduct of investigations.
(b) The use of the DA Form 3881 (Rights Warning Procedure/Waiver
Certificate) to warn accused or suspected persons of their rights is
encouraged.
(c) When necessary, investigators will coordinate with a judge
advocate or civilian attorney employed in the Office of the Staff Judge
Advocate for the purpose of establishing a legal opinion as to whether
sufficient credible evidence has been established to title an
individual in a report. Investigators should also coordinate with the
Office of the Staff Judge Advocate in drafting search warrants and in
determining whether probable cause exists to conduct a search.
Sec. 637.13 Retention of property.
Reports of investigation, photographs, exhibits, handwritten notes,
sketches, and other materials pertinent to an investigation, including
copies, negatives or reproductions, are the property of the U.S.
Government, either as owner, or custodian.
Sec. 637.14 Use of National Crime Information Center (NCIC).
Provost marshals will make maximum use of NCIC terminals available
to them, and will establish liaison with the U.S. Army Deserter
Information Point (USADIP) as necessary to ensure timely exchange of
information on matters concerning deserters. The USADIP will ensure
replies to inquiries from provost marshals on subjects of MP
investigations are transmitted by the most expeditious means. Use of
NCIC will be in accordance with AR 190-27.
Sec. 637.15 Polygraph activities.
MPI and DAC detectives/investigators will utilize the polygraph to
the full extent authorized. Requests for polygraph examination
assistance will be forwarded to the supporting USACIDC element in
accordance with provisions of AR 195-6. The investigative or
intelligence element requesting approval to conduct a polygraph
examination will submit a completed DA Form 2805 (Polygraph Examination
Authorization) to the authorizing official. A request may also be sent
via an electronic message or electronic mail or media provided all
elements of the DA Form 2805 are included in the request. Approvals
will be obtained prior to the conduct of an examination. Telephonic
requests, followed with written requests, may be used in emergencies.
The requesting official will include the following data on every
polygraph examination request for criminal investigations:
(a) The offense, which formed the basis of the investigation, is
punishable under Federal law or the UCMJ by death or confinement for a
term of 1 year or more. Even though such an offense may be disposed of
with a lesser penalty, the person may be given a polygraph examination
to eliminate suspicion.
(b) The person to be examined has been interviewed and there is
reasonable cause to believe that the person has knowledge of, or was
involved in, the matter under investigation.
(c) Consistent with the circumstances, data to be obtained by
polygraph examination are needed for further conduct of the
investigation.
(d) Investigation by other means has been as thorough as
circumstances permit.
(e) Examinee has been interviewed on all relevant subjects
requested for testing and the polygraph examination is essential and
timely.
Sec. 637.16 Evidence.
Military police are authorized to receive, process, safeguard and
dispose of evidence, to include non-narcotic controlled substances, in
accordance with AR 195-5. If no suitable facility is available for the
establishment of a military police evidence depository or other
operational circumstances so dictate, the evidence custodian of the
appropriate USACIDC element may be
[[Page 75291]]
requested to receipt for and assume responsibility for military police
evidence. Personnel selected as military police evidence custodians
need not be trained as MPI and should not be issued MPI credentials,
unless they are also employed as operational MPI. Further information
concerning evidence collection and examination procedures can be found
in Field Manual (FM) 3-19.13, Law Enforcement Investigations.
Sec. 637.17 Police intelligence.
(a) The purpose of gathering police intelligence is to identify
individuals or groups of individuals in an effort to anticipate,
prevent, or monitor possible criminal activity. If police intelligence
is developed to the point where it factually establishes a criminal
offense, an investigation by the military police, (USACIDC) or other
investigative agency will be initiated.
(b) Police intelligence will be actively exchanged between
Department of Defense (DOD) law enforcement agencies, military police,
USACIDC, local, state, federal, and international law enforcement
agencies. One tool under development by DOD for sharing police
intelligence is the Joint Protection Enterprise Network (JPEN). JPEN
provides users with the ability to post, retrieve, filter, and analyze
real-world events. There are seven reporting criteria for JPEN:
(1) Non-specific threats;
(2) Surveillance;
(3) Elicitation;
(4) Tests of Security;
(5) Repetitive Activities;
(6) Bomb Threats/Incidents; and
(7) Suspicious Activities/Incidents.
(c) If a written extract from local police intelligence files is
provided to an authorized investigative agency, the following will be
included on the transmittal documents: ``THIS DOCUMENT IS PROVIDED FOR
INFORMATION AND USE. COPIES OF THIS DOCUMENT, ENCLOSURES THERETO, AND
INFORMATION THEREFROM, WILL NOT BE FURTHER RELEASED WITHOUT THE PRIOR
APPROVAL OF THE INSTALLATION PROVOST MARSHAL.''
(d) Local police intelligence files may be exempt from certain
disclosure requirements by AR 25-55 and the Freedom of Information Act
(FOIA).
Sec. 637.18 Electronic equipment procedures.
(a) DOD Directive 5505.9 and AR 190-53 provide policy for the
wiretap, investigative monitoring and eavesdrop activities by DA
personnel. The recording of telephone communications at MP operations
desks is considered to be a form of command center communications
monitoring which may be conducted to provide an uncontroversial record
of emergency communications. This includes reports of emergencies,
analysis of reported information, records of instructions, such as
commands issued, warnings received, requests for assistance, and
instructions as to the location of serious incidents.
(b) The following procedures are applicable to the recording of
emergency telephone and/or radio communications at MP operations desks
within the 50 states of the United States, the District of Columbia,
the Commonwealth of Puerto Rico, Panama, and Guam.
(1) All telephones connected to recording equipment will be
conspicuously marked ``FOR OFFICIAL USE ONLY--connected to recording
device'' and access to use will be restricted to MP operations desk
personnel.
(2) The connection of voice-recording equipment or private-line
service with the telecommunications network will be in accordance with
applicable telephone company tariffs which permit direct electrical
connection through telephone company recorder-connector equipment. An
automatic audible-tone device is not required.
(3) Official emergency telephone numbers for MP desks will be
listed in appropriate command, activity, or installation telephone
directories with a statement that emergency conversations will be
recorded for accuracy of record purposes. Other forms of pre-warning
are not required.
(4) Recordings, which contain conversations described in this
section, will be retained for a period of 60 days. Transcripts may be
made for permanent files, as appropriate.
(5) The recording of telephone communications or radio
transmissions by MP personnel for other than emergency purposes is
prohibited. If an investigator requires the use of electronic
surveillance equipment, assistance must be requested from the USACIDC.
This policy is established pursuant to Department of Defense directives
that limit such activity to the criminal investigative organizations of
the Services and DOD.
(6) Commanders having general courts-martial convening authority
will issue written authorizations for the recording of emergency
telephone communications at MP operations desks. The letter of
authorization will contain specific authority for the type of equipment
to be used, the phone numbers identified as emergency lines and
instructions limiting recordings to calls received on the phones so
designated. One copy of the authorization will be forwarded to the
Office of the Provost Marshal General (OPMG), 2800 Army Pentagon,
Washington, D.C. 20310-2800.
Sec. 637.19 Overseas MP desk.
The recording of telephone communications at MP operations desks
outside the United States will be conducted within restrictions
contained in international agreements between the U.S. and host
nations.
Sec. 637.20 Security surveillance systems.
Closed circuit video recording systems, to include those with an
audio capability, may be employed for security purposes in public
places so long as notices are conspicuously displayed at all entrances,
providing persons who enter with a clear warning that this type of
monitoring is being conducted.
Sec. 637.21 Recording interviews and interrogations.
The recording of interviews and interrogations by military police
personnel is authorized, provided the interviewee is on notice that the
testimony or statement is being recorded. This procedure is a long-
accepted law enforcement procedure, not precluded by DA policies
pertaining to wiretap, investigative monitoring, and eavesdrop
activities.
[FR Doc. 04-27569 Filed 12-15-04; 8:45 am]
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