Legislature(1995 - 1996)
02/20/1995 01:35 PM Senate CRA
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
SENATE COMMUNITY & REGIONAL AFFAIRS COMMITTEE
February 20, 1995
1:35 p.m.
MEMBERS PRESENT
Senator John Torgerson, Chairman
Senator Randy Phillips, Vice Chairman
Senator Tim Kelly
Senator Fred Zharoff
Senator Lyman Hoffman
MEMBERS ABSENT
COMMITTEE CALENDAR
-- PRESENTATION BY DARROLL HARGRAVES, CHAIRPERSON
ALASKA LOCAL BOUNDARY COMMISSION
SENATE BILL NO. 16
"An Act relating to the University of Alaska and university land,
authorizing the University of Alaska to select additional state
public domain land, and defining net income from the University of
Alaska's endowment trust fund as 'university receipts' subject to
prior legislative appropriation."
SENATE BILL NO. 56
"An Act relating to rights in certain tide and submerged land."
PREVIOUS SENATE COMMITTEE ACTION
SB 16 - No previous action to record.
SB 56 - No previous action to record.
WITNESS REGISTER
Darroll Hargraves, Chairperson
Alaska Boundary Commission
333 W. 4th Ave., Suite 220
Anchorage, AK 99501
Senator Steve Frank
State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Prime Sponsor of SB 16
Wendy Redman, Vice President of University
Relations
University of Alaska
910 Yukon Drive
Fairbanks, AK 99775-2388
POSITION STATEMENT: Offered information in support of
SB 16
Fred Klouda
Alaska Sport Fishing Association
6324 Air Guard Road
Anchorage, AK 99502
POSITION STATEMENT: Opposes SB 16
Rick Smeriglio
HCR 64, Box 565
Seward, AK 99664
POSITION STATEMENT: Opposes SB 16
Brian Rogers
P.O. Box 80690
Fairbanks, AK99708
POSITION STATEMENT: Offered information on SB 16
Charity Green, Student
Kenai Peninsula College
34820 College Drive
Soldotna, AK
POSITION STATEMENT: Testfied in support of SB 16
Senator Loren Leman
State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Prime Sponsor of SB 56
Sarah Hannan, Executive Director
Alaska Environmental Lobby
P.O. Box 22151
Juneau, AK 99801
POSITION STATEMENT: Has concerns with SB 56
John Baker, Assistant Attorney General
Department of Law
1031 W. 4th Ave., Suite 200
Anchorage, AK 99501-1994
POSITION STATEMENT: Testified on SB 56
Bob Juettner
Administrator
Aleutians East Borough
P.O. Box 439
Sand Point, AK 99661
POSITION STATEMENT: Testified in support of SB 56
Cliff Eames
Alaska Center for the Environment
519 West 8th Ave., #201
Anchorage, AK 99501
POSITION STATEMENT: Testified against SB 16 & SB 56
Ron Swanson, Director
Division of Land
Department of Natural Resources
P.O. Box 107005
Anchorage, AK 99510-7005
POSITION STATEMENT: Testified in support of SB 56 with changes
Jerry McCune
211 4th St., Suite 112
Juneau, Alaska 99801
POSITION STATEMENT: Testified in support of SB 16 & SB 56
ACTION NARRATIVE
TAPE 95-3, SIDE A
Number 001
¶CHAIRMAN TORGERSON called the Senate Community & Regional Affairs
Committee meeting to order at 1:35 p.m. He stated the first order
of business would be a presentation by the Local Boundary
Commission, and he noted the Commission's recommendations for the
dissolution of five inactive cities in the state were submitted to
the Legislature in the first ten days of the session. These
dissolutions will automatically take effect within 45 days after
the presentation, unless disapproved by a resolution passed by a
majority of both bodies of the Legislature. He noted that his
office has checked with each of the senator's staff for the cities
in their districts that the Local Boundary Commission has
recommended for dissolution, and Senators Admas, Hoffman and
Lincoln have expressed no opposition.
DARROLL HARGRAVES, Chairman of the Local Boundary Commission,
addressed the committee over the teleconference network from
Ketchikan. He introduced commission members Myrtle Johnson, Toni
Salmeir, Frances Hallgren and Dr. Hugh Fate, who were participating
via teleconference from various locations in the state.
Mr. Hargraves explained that the Local Boundary Commission's duties
include acting on proposals for: municipal incorporation;
annexation; detachment; dissolution; merger; consolidation; and
reclassification of cities. Staff support to the Commission is
provided by the Department of Community & Regional Affairs.
Summarizing the 1994 activities, Mr. Hargraves said the commission
held 16 meetings and approved petitions for: incorporation of the
City Egegik; annexation to the City of Sand Point; and dissolutions
of the cities of Atmautluak, Kaisigluk, Newtok, Tununak and
Tuluksak. He noted the incorporation of the City of Egegik remains
subject to approval by the local voters, and the dissolution of the
five cities is subject to review by the Legislature. The
Commission also reconsidered the northwest boundary of the Lake &
Peninsula Borough and the final action is that the boundaries will
stay as they are.
Activities currently pending before the Commission include:
dissolution of the City of Akiak; detachment of 5,400 square miles
from the Fairbanks North Star Borough; incorporation of the 10,000
square mile North Pole Borough; and the reconsideration of the
incorporation of the City of Pilot Point.
Mr. Hargraves noted that the Commission's annual report to the
Legislature addressed several policy issues which include: growing
interest in borough detachment; growing interest in dissolution of
cities; the lack of limitations on the authority of municipalities
to levy certain taxes; and the lack of compensation for the
Commission.
Mr. Hargraves outlined two suggestions for legislation to enable
the state to deal more effectively with dissolution of cities. The
first is to permit traditional councils to hold title to real
property, and the second is to broaden the law concerning
succession to assets, liabilities and duties of a dissolved
municipality.
Mr. Hargraves pointed out that concerns continue to be expressed
over the lack of limits on the authority of municipalities to levy
fsales taxes. The Commission offers no proposals to limit such
authority, however, it wishes to ensure that the Legislature is
aware of the concerns being expressed.
In his concluding comments, Mr. Hargraves said the Commission has,
in the past, urged the Legislature to provide compensation for
services rendered by the members of the Commission, and the
legislation has advanced to different levels, but it has never
passed. He noted that if members of the Commission were
compensated at $150 per day for an estimated 25 meetings per year,
the total fiscal note for the compensation would be $18,750.
Number 230
SENATOR TORGERSON asked if committee members had questions for Mr.
Hargraves or any of the other Commission members. Hearing none, he
thanked Mr. Hargraves for his overview on the Local Boundary
Commission and its activities.
SCRA - 2/20/95
SB 16 INCREASE LAND GRANT TO UNIV. OF ALASKA
Number 246
SENATOR TORGERSON introduced SB 16 as the next order of business.
SENATOR STEVE FRANK, prime sponsor of SB 16, noted the same
legislation was passed by the Senate the previous session, but
failed to come to a vote on the House floor during the final hours
of that session.
The legislation would allow the University of Alaska to select one
million acres of unencumbered land from the State of Alaska. The
University previously received 112,000 acres of land, which is
small by comparison to most of the rest of the western public land
states. Some universities in states with much smaller state land
grants, such as New Mexico and Oklahoma, have received up to one
million acres.
SENATOR FRANK believes the legislature should follow through on the
intent of the Congressional Moral Act of 1862, which granted states
the right to receive public lands to support universities, by
increasing the grant to the University and to allow them to develop
the lands in a responsible manner and benefit from the revenues
that they can generate. With the decline in the state's general
fund revenues, providing the University a greater land grant and an
opportunity for more revenues from land development would let the
University continue to meet its mission with a more diversified
financial system of support, he stated.
SENATOR FRANK stated the legislation contains adequate protection
for the state, and he urged its favorable consideration by the
committee.
Number 290
SENATOR KELLY asked if there are differences between the bill
passed by the Senate last year and this version. SENATOR FRANK
said the final version passed by the Senate last year decreased the
amount of the land grant from one million acres to 500,000 acres.
SB 16 increases it back to the original one million acres. SENATOR
R. PHILLIPS commented that he is more favorable to the 500,000 acre
figure.
Number 332
SENATOR ZHAROFF noted that on a map of Prince of Wales Island, he
observed that the community of Whale Pass has a couple of
subdivisions and University land is identified within those
subdivisions. He asked how the University acquired parts of those
subdivisions. SENATOR FRANK answered that those lands are probably
part of the existing 112,000 acres granted.
Number 350
WENDY REDMAN, Vice President, University Relations, University of
Alaska, speaking to other differences between last year's
legislation and SB 16, directed attention to page 8, line 9,
subsection (n). It provides that if the University is not actively
managing the land to provide income within a 10-year period of
time, DNR can recover title to those lands.
The other change was made in Section 5, on page 8. It requires the
University to establish substantially similar regulations for
mineral entry, location, and leasing procedures.
Number 400
SENATOR R. PHILLIPS questioned a possible conflict between
subsection (n) and Section 5. SENATOR FRANK acknowledged that
there is and said they will try to find a better way to address it.
He said the whole message to the University is to go ahead and
develop these lands, but it needs to have language that is
workable. WENDY REDMAN added that concern has been expressed on
the possibility of the University flooding the market with land,
and she agreed that this provision needs to be worked on. She has
had discussions with DNR on Section 5 and they have given her some
ideas of language changes that would be better for the University
and also address the major concern of the mining industry.
Number 415
SENATOR HOFFMAN asked if land taken back will be deducted
permanently from the amount of land conveyed to the University, or
will the University be allowed to select lands in another area.
WENDY REDMAN responded it is her understanding is that there is no
reselection provision so it is permanently lost.
Number 430
SENATOR ZHAROFF asked, in the case of a legal dispute over the
land, if the University or the state handles the matter. SENATOR
FRANK answered that the state has the final word and that there is
no opportunity for the University to take the state to court.
Number 445
SENATOR HOFFMAN asked what the rationale was for reducing the
figure to 500,000 acres in last year's legislation. SENATOR FRANK
answered that he didn't think there was a specific rationale.
Number 460
SENATOR KELLY inquired who takes precedence over the University in
terms of selecting land. SENATOR FRANK replied that full authority
is given to the commissioner of DNR to make those million acres
subordinate to any other state interest.
Number 490
SENATOR TORGERSON directed attention to some proposed amendments to
SB 16 and SENATOR FRANK offered the following overview:
Page 4, line 4: Clarifies that the University lands would be
considered public lands as they are already in law.
Page 7, line 5: Clarifies that earnings from oil and gas
development are subject to the permanent fund royalties and bonuses
language.
Page 7, line 29 and page 8, line 1: Decreases the time frame to
make it a more efficient process for the conveyance of the lands.
Page 8, lines 5 & 6: Clarifies that the state will bear the cost
of recording all documents and deeds.
Page 9, line 28: Clarifies that after conveyance if they were to
sell the land or put it into mineral production, etc., that the
requirement for customary and traditional uses doesn't follow with
it after conveyance.
Page 9, line 31: Clarifies that until any conveyance is made the
property can continue to be used for customary and traditional uses
and provides tort immunity to the University except in cases of
gross negligence or reckless or intentional misconduct, etc.
Page 10, lines 7-12 and line 28: Clarifying language.
Number 546
SENATOR KELLY referred to the amendment to page 7, line 28, and
asked if it means that the University will be selling some of the
land. WENDY REDMAN answered that it is there hope that they would
be eventually selling the land to make money for the University.
She added that in the past they have improved and converted some of
their land into homesites and then sold it for tidy profits. She
also clarified that the land conveyed to the University is not
subject to taxation until such time as it is sold to private
ownership. SENATOR FRANK added that he believes it is the
University's intent to get into the actually selling of any this
land in a very small and limited fashion, and it is not designed to
be a major portion of their overall program.
TAPE 95-3, SIDE B
Number 001
SENATOR TORGERSON announced that the committee would take testimony
on SB 16 over the teleconference network.
FRED KLOUDA, testifying from Anchorage and representing the Alaska
Sport Fishing Association, stated that with the lack of state
control over fish and game resources, they are against conveying
land out of public ownership.
Number 035
CLIFF EAMES, testifying from Anchorage and representing the Alaska
Center for the Environment, voiced their opposition to SB 16 and
the transfer of these lands out of general public ownership. They
oppose the increased fragmentation of Alaska's land ownership and
the severely reduced opportunities for the citizens of Alaska to
determine how Alaska's public lands should be managed. He cited
numerous problems connected to the transfer of lands to the Mental
Health Lands Trust.
Number 090
RICK SMERIGLIO, a resident of Moose Pass, testified in opposition
to SB 16. He said Moose Pass is a small unincorporated community
on the road system that has traditional or recreational use of
their private and public lands, as well as a proud tradition of
public input. He noted that because of ANCSA (Alaska Native Claims
Settlement Act), municipal entitlement, the Mental Health Trust
settlement, a lot of the good land in their area has been selected
already, and he fears that with another conveyance to the
University, Moose Pass will get targeted again.
Number 150
RON SWANSON, Director, Division of Lands, Department of Natural
Resources, stated he was present in Anchorage to answer questions.
Number 155
BRIAN ROGERS, formerly Vice President for Finance at the University
of Alaska, addressed issues raised earlier in the meeting.
In response to Senator Zharoff's inquiry concerning University land
on Prince of Wales Island, he said those subdivisions were received
in 1982 as a result of settlement of claims by the University when
the state took land away from the University under the Municipal
Entitlement Act.
Responding to Senator Hoffman's inquiry for examples of some of the
University's income from lands, Mr. Rogers related that last year
the University earned $10 million, against expenses of around
$800,000 for land management. The major activities have been
timber, subdivision lands, oil and gas, and commercial leases. He
noted the Board of Regents' policy on land favors the University
retaining ownership and leasing the land in most circumstances.
However, he added that it is not appropriate for subdivisions and
for certain commercial development and it is in the University's
best interest to sell those lands.
In response to Senator Kelly's question on what takes precedence
over the University in selecting land, Mr. Rogers said any land
that has already been identified by the Legislature for parks,
refuges or is otherwise designated by the Legislature is not
available to the University for selection under SB 16.
Number 230
CHARITY GREEN, a student at the Kenai Peninsula College, pointed
out that at the Board of Regents' most recent meeting, they voted
to eliminate the consolidation cap and to increase tuition, which,
she said, will have a drastic impact on all of the University's
campuses. She added that with the budget shortfalls, the students
recognize that they have to do their part. She voiced support for
SB 16 and urged its passage which, she said, will show the
legislators are still concerned about the university's problems and
the students' needs.
Number 270
JERRY MCCUNE, President, United Fishermen of Alaska, stated support
for SB 16, but he does have concerns with certain areas of it, such
as the amount of acreage to be conveyed. He suggested extending
the time frame for the Board of Regents to adopt policies for an
annual plan for management and disposition of university land, as
well as limiting where the University might be able to sell the
land.
Number 300
SENATOR TORGERSON closed the public hearing on SB 16, bringing it
back before the committee.
Number 302
SENATOR KELLY moved the following amendments be adopted into a
committee substitute. Hearing no objection, it was so ordered.
Page 4, line 4
Following last sentence insert: "Provided, however, that land
conveyed to the University under AS 14.40.365 shall be treated as
other public land and shall be managed in accordance with AS.
14.40.366 and regulations promulgated by the University."
Page 7, line 5
Following the semicolon (;) insert "and AS 37.13.010;"
Page 7, line 29
Delete the period (.) and insert "within one year of request by the
University."
Page 8, line 1
Following "resources shall" insert "within one year of request by
the University"
Page 8, line 5
Delete "execution" and insert "recording"
Page 8, line 6
Following the period (.) insert "The State shall bear the cost of
recording all documents and deeds."
Page 9, line 28
Following "University of Alaska shall" insert ",prior to disposal
or conveyance to third parties,"
Page 9, line 31
Add new section to read as follows:
*Sec.___. AS 14.40 is amended by adding a new section to read:
Sec. 14.40.371. TORT IMMUNITY FOR CLAIMS ARISING ON
UNIVERSITY LAND NO IMPROVED BY THE UNIVERSITY. The University of
Alaska is not liable in tort, except for an affirmative act that
constitutes gross negligence or reckless or intentional misconduct,
for property damage or for injury to or death of a person who
enters or remains on land owned by the University of Alaska;
provided that the above exemption from liability does not apply to
claims which arise on that portion of those lands which have been
improved and actively maintained by the University of Alaska after
its receipt of tide thereto.
Page 10, lines 7-12
Delete
Page 10, line 28
Delete "or"
Following "state property," insert "or property owned by the
University of Alaska"
Number 315
SENATOR KELLY moved that on page 9, line 3, delete "30" and insert
"60" in its place. Hearing no objection, the amendment was
adopted.
SENATOR KELLY moved that on page 4, line 8, change "one million
acres" to "two million acres." After brief discussion, he withdrew
the amendment.
Number 347
SENATOR PHILLIPS moved that on page 4, line 8, change "one million
acres" to "500,000 acres. After brief discussion, he withdrew the
amendment.
SENATOR ZHAROFF voiced his concern of the University selecting land
within an area that has not incorporated as a municipality, but
when they do incorporate as a municipality, under their
entitlement, they should be able to have the opportunity to select
land within that area if the University has not done anything with
the land. He said he would possibly offer such an amendment in the
Finance Committee.
Number 430
SENATOR PHILLIPS moved that CSSB 16(CRA) be passed out of committee
with individual recommendations. Hearing no objection, it was so
ordered.
SCRA - 2/20/95
SB 56 RIGHTS IN TIDE/SUBMERGED LAND
Number 470
SENATOR TORGERSON brought SB 56 before the committee as the final
order of business.
SENATOR LOREN LEMAN, prime sponsor of SB 56, said the basic concept
of the legislation is to get decision making for tidelands and
submerged lands made at the local level instead of at the state
level. The bill will provide a mechanism for the Department of
Natural Resources to turn these lands over to municipalities who
identified tide and submerged lands for development. It provides
for four conditions that would have to be met before land could be
conveyed to municipalities.
Senator Leman pointed out that land conveyed under this bill is
still subject to the public trust doctrine, and if a municipality
is dissolved, the land would revert to the state. Further, it
doesn't affect the general land entitlement of a municipality
provided by AS 29.65.
Number 530
SENATOR TORGERSON opened the public hearing on SB 56.
SARAH HANNAN, Executive Director, Alaska Environmental Lobby,
stated their support for the intent of SB 56, but they are
concerned that the bill neglects to supply recourse to the state
for decisions which must be made in the best interest of the state
and the public. There is no availability for the state not to
convey the land if it meets the four criteria in the bill. She
suggested the bill should provide that if the state could prove
that its concerns outweigh the municipality, the commissioner could
recommend that the land not be transferred. Other than that, the
Lobby supports Senator Leman's attempt to help local governments
diversify their economy and develop their economies.
Number 622
JOHN BAKER, Assistant Attorney General, Natural Resources Section,
Anchorage Attorney General's office, spoke to the public trust
doctrine. He said where the Legislature authorizes conveyance of
tide and submerged lands, which it has done on a very limited basis
since statehood, except in very narrow circumstances those lands
are subject to the public trust. That means members of the public
can not be absolutely excluded from pursuing public trust uses on
those lands.
TAPE 95-4, Side A
Number 001
BOB JUETTNER, Administrator of the Aleutians East Borough (AEB),
testified in support of SB 56 and supports the municipal ownership
of tidelands for the following reasons: flood control, costs and
equity. A municipality cannot spend G.O. bonds on state-owned
lands; it must secure a minimum lease for a five-year period, which
is becoming more difficult to do. The second issue is the cost of
leasing. A current tideland lease of 4.4 acres has a modest lease
fee of $1,100 which represents only one-fifth of the total annual
costs. Additional expenses include appraisal costs and the ongoing
costs of insurance and bonding requirements. Another issue with
the municipalities is the equity issue. First class and home rule
cities incorporated prior to 1964 received the fee simple issue to
their tidelands. Not only did they receive the title to their
tidelines, but any city so incorporated can annex the tideline and
still apply for the tideland, anytime after the annexation is
approved. Finally, there is the issue of disposable tidelands. AS
38.05.820 (b)(7) states that municipalities that have been
incorporated since 1964 shall have reasonable access to public
waters.
Number 090
CLIFF EAMES, representing the Alaska Center for the Environment
(ACE), stated ACE does not support SB 56. He emphasized it is
important to retain remaining state lands in state ownership so
that all Alaskans have an opportunity to influence how that land is
managed. The municipalities have had some opportunities for
municipal entitlement and if there is a need for more lease
processors, ACE would support the providing of additional
processors. ACE does not believe this legislation is necessary
because the opportunity to lease those lands from the state exists.
He reiterated ACE's preference to continue to work with the
existing process and not transfer additional land out of state
ownership.
RON SWANSON, Director of the Division of Lands, Department of
Natural Resources (DNR), stated DNR supports SB 56 in concept but
has two concerns. DNR strongly feels some discretion should be
allowed to the Commissioner and that the burden of proof should be
put on the Department, not on the applicant, but they feel it would
be inappropriate to require the Commissioner to convey land just
because it is suitable for development.
MR. SWANSON stated DNR also recommends the deletion of the phrase
"for sale" from page 2, line 18. He pointed out that tidelands,
shorelands, and submerged lands are all managed under the Public
Trust Doctrine. This is a living doctrine that has evolved and
continues to evolve over time. Other states and the courts have
long found that the sale of these lands, while not necessarily
violating the public trust doctrine at the time of sale, may, by
its use, violate the doctrine at a later date.
SENATOR KELLY asked if DNR's second concern was in regard to the
lease, or the sale, or both. MR. SWANSON replied DNR's concern is
with the sale. He reiterated DNR supports the ability of the
municipalities to lease tide, shore and submerged lands.
Number 168
JERRY McCUNE testified on behalf of himself. He described to the
committee how a friend of his, in Cordova, after taking incorrect
survey readings, built a house. The house is situated on 1 foot of
state land so the builder cannot close his loan. SB 56 could
correct the situation by conveying that piece of land to the
municipality who would convey it to this individual. He discussed
a second situation in Cordova, in which the ferry terminal and dock
are located in ten feet of water as the result of an earthquake.
The ferry is unable to dock there. The dock is used as a launch
for fishermen and other boaters. The municipality has been trying
to get the rights to that land but is in dispute with the state.
SENATOR KELLY asked if the proposed amendment came from DNR.
SENATOR TORGERSON answered affirmatively, and added it is already
in the companion House bill. SENATOR KELLY questioned whether the
Administration might oppose SB 56 if it is not amended. MR.SWANSON
replied DNR would oppose SB 56 without the amendments.
SENATOR KELLY moved the adoption of the following amendment.
Add to Section 1(a):
Unless the commissioner finds that the public interest in
retaining state ownership of the land clearly outweighs the
municipality's interest in obtaining the land, the
commissioner shall convey to a municipality tide or submerged
land requested by the municipality that is occupied or
suitable for occupation and development if the...
SENATOR PHILLIPS objected because only one person would be making
the determination. A roll call vote was taken with the following
result: SENATORS HOFFMAN, KELLY, ZHAROFF, and TORGERSON voted
"YEA," and SENATOR PHILLIPS voted "NAY." The motion to adopt the
amendment passed.
Number 243
SENATOR ZHAROFF commented he concurs with DNR's second concern to
delete the phrase "or sale" from page 2, line 18. He moved to
amend SB 56 by deleting that phrase. SENATOR TORGERSON asked how
that would affect the homeowner in Cordova. SENATOR HOFFMAN asked
for Senator Leman's opinion. SENATOR LEMAN stated he preferred to
leave the phrase in because of recurring situations like the case
in Cordova.
SENATOR HOFFMAN noted he was the manager in Bethel for several
years, and great strides were taken to obtain public input before
land was leased, therefore he felt it is important to give the
local government as much discretion as possible.
Number 270
SENATOR ZHAROFF withdrew his amendment to delete the phrase "or
sale" from page 2, line 18, but he suggested including a letter of
intent. SENATOR LEMAN felt that in light of the fact that the
Commissioner would have the final approval, he would not have any
problem with a letter of intent. SENATOR ZHAROFF commented some
municipalities might want to work with this legislation as soon as
possible, therefore he suggested adding an immediate effective
date. After discussion, SENATOR LEMAN agreed.
SENATOR PHILLIPS moved that CSSB 56 (CRA) be passed out of
committee with individual recommendations. There being no
objection, so ordered.
SENATOR TORGERSON adjourned the meeting at 3:27 p.m.
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