Legislature(1993 - 1994)
02/04/1994 01:42 PM Senate JUD
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* first hearing in first committee of referral
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SENATE JUDICIARY COMMITTEE
February 4, 1994
1:42 p.m.
MEMBERS PRESENT
Senator Rick Halford, Vice-Chairman
Senator George Jacko
Senator Dave Donley
Senator Suzanne Little
MEMBERS ABSENT
Senator Robin Taylor, Chairman
OTHERS PRESENT
Senator Bert Sharp
Senator Loren Leman
COMMITTEE CALENDAR
SENATE CS FOR CS FOR HOUSE BILL NO. 212(JUD)
"An Act relating to a factor in aggravation of the presumptive term
of a criminal sentence, and prohibiting the referral of a sentence
based on application of that factor to a three-judge sentencing
panel as an extraordinary circumstance."
CS FOR SENATE BILL NO. 239(O&G)
"An Act relating to evidence of financial responsibility provided
by persons who conduct oil operations; and providing for an
effective date."
SENATE JOINT RESOLUTION NO. 39
Proposing an amendment to the Constitution of the State of Alaska
to guarantee, in addition to the right of the people to keep and
bear arms as approved by the voters at the time of ratification of
the state Constitution, that the individual right to keep and bear
arms shall not be denied or infringed by the state or a political
subdivision of the state.
PREVIOUS SENATE COMMITTEE ACTION
HB 212 - See Judiciary minutes dated 2/2/94.
SB 239 - See Oil & Gas minutes dated 1/24/94 and 2/2/94.
SJR 39 - See State Affairs minutes dated 1/21/94.
WITNESS REGISTER
Michael Conway
Director, Division of Spill Prevention and Response
Department of Environmental Conservation
410 Willoughby Ave.
Suite 105
Juneau, AK 99801-1795
POSITION STATEMENT: Reviewed SB 239.
Ray Gillespie
Association of Refined Fuel Distributors
9478 Riverbend Court
Juneau, AK 99801
POSITION STATEMENT: Reviewed SB 239.
Tom Lakosh
P.O. Box 100648
Anchorage, AK 99510
POSITION STATEMENT: Reviewed SB 239.
Dean Guaneli
Chief Assistant Attorney General
Criminal Division, Department of Law
P.O. Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Opposed SJR 39.
John George
Alaska Outdoor Council
Juneau, AK
POSITION STATEMENT: Supported SJR 39.
Mike Chryst
P.O.Box 982488
Wasilla, AK 99687
POSITION STATEMENT: Supported SJR 39.
Sally Chryst
P.O. Box 982488
Wasilla, AK 99687
POSITION STATEMENT: Supported SJR 39.
David McGraw
1500 Catalina Dr.
Wasilla, AK 99654
POSITION STATEMENT: Supported SJR 39.
Scott Coryell
P.O. Box 1044
Ward Cove, AK 99928
POSITION STATEMENT: Supported SJR 39.
Les Zetterberg
P.O. Box 663
Ward Cove, AK 99928
POSITION STATEMENT: Supported SJR 39.
Lyle Stack
P.O. Box 8594
Ketchikan, AK 99901
POSITION STATEMENT: Supported SJR 39.
Wesley Jones
HCR 64, Box 535
Seward, AK 99664
POSITION STATEMENT: Supported SJR 39.
Scott Hamann
P.O. Box 934
Kenai, AK 99611
POSITION STATEMENT: Supported SJR 39.
Michael Neligh
P.O. Box 1937
Kenai, AK 99611
POSITION STATEMENT: Supported SJR 39.
Greg Machacek
P.O. Box 56245
North Pole, AK 99705
POSITION STATEMENT: Supported SJR 39.
Rudy Vetter
P.O. Box 70342
Fairbanks, AK 99707
POSITION STATEMENT: Supported SJR 39.
David Miller
P.O. Box 470
Barrow, Ak. 99723
State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Supported SJR 39.
Dwayne Uppland
Anchorage, Ak
POSITION STATEMENT: Concerned with ambiguous language in SJR 39. 9.
Charles McKee
1508 W. 43rd, #7
Anchorage, AK 99503
POSITION STATEMENT: Supported SJR 39.
Portia Babcock, Legislative Aide
c/o Senator Leman
Capitol Building
Juneau, AK 99801-1182
POSITION STATEMENT: Supported SJR 39.
ACTION NARRATIVE
TAPE 94-5, SIDE A
Number 001
VICE- CHAIRMAN HALFORD called the Judiciary Committee meeting to to
order at 1:42 p.m.
VICE-CHAIRMAN HALFORD introduced HB 212 (SENTENCING: AGGRAVATING
FACTORS) and the CS draft as the first order of business before the
committee. He asked for testimony regarding HB 212.
DAVID HARDING, representing Representative MacLean, expressed
Representative MacLean's view that the changes in the CS were
appropriate.
SENATOR JACKO moved to adopt CS 8-LS0780/J of HB 212. Hearing no
objections, it was so ordered.
SENATOR LITTLE asked about the difference in the new fiscal note.
DAVID HARDING stated that this fiscal note used some guess work due
to the lack of records other than the offenses themselves. He
explained that Diane Schenker used a formula to arrive at the
presumed fiscal impacts.
VICE-CHAIRMAN HALFORD reminded the committee that this would be
decided by the Finance Committee, where he predicted this fiscal
note would be rejected.
SENATOR LITTLE commented that impacts on the Correctional
Department should be kept in mind.
SENATOR JACKO moved CSHB212 out of committee with individual
recommendations. Hearing no objections, it was so ordered.
Number 113
VICE-CHAIRMAN HALFORD introduced SB 239 (NONCRUDE OIL OPERATIONS
FINANCIAL RESPONSIBILITY) as the next order of business before the
committee.
MICHAEL CONWAY, Director of Spill Prevention and Response in the
Department of Environmental Conservation (DEC), stated support in
continuing the waiver provided in SB 239. The department is
neutral on the position of changing the components of financial
responsibility. He mentioned that under bonding requirements DEC
works with the Department of Natural Resources (DNR) in order to
ensure that small operators are able to have the financial
resources that are onshore.
SENATOR DONLEY asked if the responsibility for the transportation
sector is in Section (1)(A) and the onshore exploration facility
sector is addressed in Section (1) (3).
MICHAEL CONWAY stated that SB 239 addresses onshore explorations
regarding the proof of financial responsibility. He pointed out
that these changes were entered by Senator Sharp who could speak to
their intention. The waiver of the direct action requirement is
for all transporters, handlers of petroleum products but it mainly
effects the small operators. SENATOR DONLEY clarified Mr. Conway's
position and asked if he had requested the changes in Section
(1)(3). MICHAEL CONWAY agreed that he had not requested the
change.
SENATOR DONLEY asked if the onshore exploration facilities had
problems getting this insurance. MICHAEL CONWAY stated that some
of the smaller operators feel that this money can be better spent
on the drilling operation due to their tight financial situations.
The high limits of financial responsibility required for some of
the operators is viewed as a block to entering into onshore
operations.
Number 195
SENATOR DONLEY inquired about the department's support of not
changing the statutes for the large operations, but lowering the
amount of liability for the smaller operations. MIKE CONWAY said
that the department would be neutral due to the lack of data that
could indicate the basis of changing the limits.
SENATOR DONLEY observed that this change from $5 million to $1
million was immense and questioned the department's neutral stance.
MICHAEL CONWAY said that if the legislation passed, the department
would work with DNR. Mr. Conway pointed out that the difference
with an onshore facility is that the operating conditions indicate
easier response and access as opposed to offshore operations,
individual cases should be reviewed.
SENATOR DONLEY suggested that individual cases could be reviewed if
there was a system which would point out smaller operations with
less exposure of damage to the state. Then maybe a lesser amount
would be reasonable. He noted that the departments are the
professionals and would appreciate their input.
MICHAEL CONWAY pointed out that the department keeps track of the
financial responsibility of these operators, but there are no risk
management officers or anyone on staff who has the ability to look
at these insurance decisions.
SENATOR LITTLE asked if this bill passed, how damage compensation
could be obtained in the event of a spill.
MICHAEL CONWAY explained that the financial responsibility is
demonstrated by self insurance or insurance, a surety, the
guarantee, a letter of credit approved by the department or other
proof of financial responsibility including proof of financial
responsibility provided by a group of insurers who have agreed to
cover pollution risks of the members under the terms approved by
the department.
SENATOR LITTLE asked if the terms required now are similar to the
terms written in this legislation. MICHAEL CONWAY said that SB 239
only changes the limits or amount required; the terms and methods
of proof are not changed.
Number 296
SENATOR LITTLE inquired of the state of Alaska's liability now or
under this bill. MICHAEL CONWAY noted that currently the state has
liability and SB 239 only changes the limits. He expressed that
DNR does not have information indicating the likelihood of a spill.
DNR believes that the likelihood of a spill is less in an
exploratory situation otherwise each site must be reviewed.
SENATOR DONLEY clarified that SB 239 was only for exploratory
operations. He asked if there was a separate requirement for the
bonding for ongoing production facilities. VICE-CHAIRMAN HALFORD
pointed out that Section 1 of CSSB 239 explains that issue.
SENATOR DONLEY asked if the department would oppose making the
proof of fiscal responsibility requirement for onshore exploration
a minimum of $1 million and up to $5 million pursuant of
regulations.
MICHAEL CONWAY reiterated that the department would remain neutral
because there is no information indicating why this risk is
considered greater or less.
SENATOR SHARP pointed out that the Oil & Gas CS for SB 239
recognizes that existing statutes mandate levels of proof of
financial responsibility and liability that are unrealistic to the
point that coverage is not available and never has been. Section
1 only reduces the mandatory liability limits to more reasonably
available levels; however, the reduced levels remain ten times
higher than any other producing state in the U.S. Most states do
not have liability responsibility. Section 2 makes the temporary
waivers for shippers of refined products permanent, but Senator
Sharp noted that while third party coverage is not available zero
financial responsibility is provided.
Senator Sharp asserted that his portion of SB 239 only provides
reductions for onshore oil and gas exploration activities that in
nine out of ten cases never involve exposure to crude oil. There
has never been an onshore crude spill in Alaska caused by an
exploration rig. He said that SB 239 creates a more realistic
environment for small independent exploration firms to operate in
Alaska. Independent oil companies in the lower forty-eight have
historically discovered new basins and the wealth they generate is
usually retained within the state one hundred percent. He believed
that SB 239 along with the proposed balanced exploration licensing
bill could stimulate renewed exploration in Alaska. He urged
favorable consideration of this legislation.
SENATOR LITTLE asked if under this legislation the state would
still be maintaining an adequate safety net. SENATOR SHARP said
yes. He believed the current situation stifles independent
operations.
Number 399
RAY GILLESPIE, Association of Refined Fuel Distributors
representing Crowley Maritime, Delta Western, and Petro-Marine,
spoke to Section 2 of SB 239. He referred to the direct action
provision which allows the department to waive the requirement of
an insurance policy to state that the insurer will be sued directly
in the state. This would create a permanent law.
VICE-CHAIRMAN HALFORD explained that Section 2 extends the ability
to waive direct action indefinitely. The other sections deal with
the incentive or disincentive of the liability amounts as they
apply to onshore operators. SENATOR DONLEY clarified that Section
2 of the CS repeals a repealer on the section that allowed an
exemption.
SENATOR LITTLE questioned how the new provisions of liability in
Section 1 came about. VICE-CHAIRMAN HALFORD explained that those
provisions are an effort to make exploration licensing available
and workable for small independents. The onshore production
provisions are on a schedule that goes down to $1 million, while
the pipeline and offshore provisions remain unchanged.
SENATOR DONLEY asked how many facilities in the state apply to
these categories added by this legislation. SENATOR SHARP stated
that all onshore production facilities exceeding 10,000 barrels per
day would be subject to the existing $20 million limit.
SENATOR DONLEY inquired if this applied to operations taking a
limited amount of product from pipeline to refine. MICHAEL CONWAY
informed the committee that the refineries are considered terminal
facilities who are addressed in AS 46.04.040.
SENATOR DONLEY supported giving the department flexibility with
appropriate independent exploration when a reasonable protection of
public interests is included. He said that if there has been no
problem with this and there is a low success rate; the insurance
should be cheap due to the small risk of damage.
Number 508
VICE-CHAIRMAN HALFORD expressed concern with the regulatory
structure that allows DEC to change the rules after an bid is won.
This could prohibit exploration after the initial process. He
suggested that not allowing the standard to change during the
period of an economic arrangement would weaken the ability to
receive a decent bid or proposal.
SENATOR DONLEY asked if there is a way to lock them into those
requirements at a particular time. VICE-CHAIRMAN HALFORD noted
that this program attempts to gain independence even in the face of
obstacles such as distance and climate that are not within the
government's control.
VICE-CHAIRMAN HALFORD asked why shouldn't the department have
regulatory authority; they could have more flexibility in the level
of insurance required for onshore exploration activities. He asked
if insurance is available for independent onshore exploration.
SENATOR SHARP said that the insurance was not available to small
independent producers who form joint ventures to do an exploratory
well. He pointed out that insurance is cheap and available if
one's net worth is considerably more than the anticipated loss.
SENATOR DONLEY asked if the $1 million level is offered to smaller
companies. SENATOR SHARP did not know.
SENATOR DONLEY indicated that the risks in various sites could be
so different that having one arbitrary sum for everyone does not
seem practical. SENATOR SHARP maintained that such flexibility is
available through the Division of Oil & Gas and DNR. Senator Sharp
said that site specific hazards can be addressed through the DNR
permit process.
SENATOR DONLEY asked if the option for additional fiscal
responsibility would be available when a particular site poses a
threat. Furthermore, could additional bonding requirements be
added to the fiscal responsibility proof.
MICHAEL CONWAY clarified that concerns with specific drill sites
are worked through DNR on the bonding requirement. The bonding
requirement of DNR wants to assure sufficient resources for site
clean up after the operation is over. He said that in order to
allow smaller operators to get into business, they could work with
DNR reviewing their available bonds. He noted that there is
flexibility to target a specific site such as those near a
sensitive habitat.
TAPE 94-6, SIDE B
Number 585
TOM LAKOSH, testifying from Anchorage, questioned what happens in
the event of a spill with connecting drainage or what happens to
the radioactive substances from a dry well, both apply to the Kenai
River area. He stated that individual lessening would be more
appropriate than a total removal of the liability insurance
requirements. He noted that in the case of a small operator
exploring an area with access to response equipment or other clean
up plans, liability could be reduced to encourage economic
development. He requested revising the amendment accordingly.
SENATOR JACKO moved to pass CSSB 239 out of the committee with
individual recommendations. Hearing no objections, it was so
ordered.
Number 523
VICE-CHAIRMAN HALFORD introduced SJR 39 (RIGHT TO KEEP AND BEAR
ARMS) as the final order of business before the committee.
SENATOR LEMAN, prime sponsor, noted that he had hearings on SJR 39
around the state. He stated that the consensus of his hearings was
that any change to the constitution should be clear and as simple
as possible. He noted that SJR 39 does not prevent municipalities
from having restrictive ordinances.
DEAN GUANELI, Chief Assistant Attorney General in the Criminal
Division of the Department of Law, stated that the Department of
Law, the Department of Public Safety and the Alaska Association of
Chiefs of Police are in opposition to SJR 39. He expressed their
belief that there was no need to amend the Alaska constitution, but
if amended it should not risk state firearms laws or the ability of
municipalities to enact firearms regulations.
Mr. Guaneli pointed out that according to reports from the Alcohol,
Tobacco and Firearms Bureau, Alaska has one of the most liberal
firearms laws in the country. Guns can be openly carried anywhere
in Alaska and concealed while in your own home, on land adjacent to
your home, and while involved in legitimate outdoor activities. He
said that by amending the constitution in a non explicit manner,
the power to determine the validity of the firearms laws would be
shifted from the legislature to the courts. The courts would have
to interpret the new language by interpreting the legislative
history.
Mr. Guaneli discussed the surprising results of the Raven Case.
The Alaska Supreme Court used The Right to Privacy to prohibit the
legislature from criminalizing marijuana possession by adult's in
their home. He explained the U.S. Supreme Court's two tier
analysis when determining the constitutionality of a law. The
strict scrutiny analysis which must show a compelling overriding
state interest to prohibit an activity was applied in the Raven
Case. He suggested the same type of analysis and decision would be
used with SJR 39. He explained the correlation in Alaska to the
Oregon case regarding switch blade possession.
Mr. Guaneli questioned the ability to prove a strict scrutiny
analysis of Alaska state laws relating to felons in possession of
firearms, in some cases non-violent felons. Under Alaska state law
a convicted felon cannot even live in a house if a family member
has a gun. He reviewed the 1977 Colorado Supreme Court analysis of
their right to bear arms. He asserted that many individuals
believed that many of Alaska's laws would be in jeopardy if SJR 39
passes.
Number 407
VICE-CHAIRMAN HALFORD asked for the definition of assault weapons.
DEAN GUANELI explained that they are military type weapons which
the federal government was thinking about banning. Mr. Guaneli
noted that such definitions were for the legislature to decide.
VICE-CHAIRMAN HALFORD asked if any assault weapons were currently
prohibited. MR. GUANELI said that Alaska statutes contain weapons
prohibited by federal statutes.
DEAN GUANELI discussed a 1983 opinion. He asked if private
landlords could prohibit tenants from possessing weapons on rented
property under SJR 39. He believed that such kinds of questions
would arise if the courts are not told how to interpret the
amendments. He also raised the issue of municipal ordinances.
SENATOR DONLEY asked if Mr. Guaneli believed that municipalities
should have the ability to prohibit handguns. DEAN GUANELI said
that, in his opinion, municipalities should have the authority to
adopt reasonable firearms regulations to address local concerns.
Mr. Guaneli could not state a reasonable regulation.
VICE-CHAIRMAN HALFORD questioned the current ordinance in Anchorage
dealing with the sale of used guns which is not enforced today due
to the resistance in the constitutionality question.
Number 352
DEAN GUANELI asked what was wrong with localities having the power
to address local problems; this is similar to current local option
laws. He discussed a conversation with a proponent of SJR 39. SJR
39 cannot stop the federal government from enacting firearms laws.
Mr. Guaneli detailed the history of the compromise he and Senator
Donley had proposed which recognized the individual right to bear
arms and at the same time does not change how the courts analyze
firearms laws. He said that compromise is embodied in SJR 1. He
expressed the desire not to adopt a strict scrutiny analysis. The
Chiefs Association and Department of Public Safety support SJR 1.
VICE-CHAIRMAN HALFORD asked if the current constitutional language
applies to an individual right or some sort of collective right
that can be satisfied by a state militia, a national guard, or
something else.
DEAN GUANELI said that the Department of Law believes that the
constitutional language applies to both the individual and the
militia. Mr. Guaneli explained that the Alaska Supreme Court
analysis reviews the historical view of arms and there usage, which
he believed would uncover a label of the individual right to bear
arms. He stated that when labeling the question remains regarding
the ultimate consequence of the label.
VICE-CHAIRMAN HALFORD questioned why Mr. Guaneli is worried about
changes to standards for reasonable exclusions, when he also
believes that the existing language protects the individual right
to keep and bear arms. The proposed language does no more than
that. DEAN GUANELI pointed to legislative history surrounding this
proposal which until now has rejected proposed amendments similar
to this.
Number 240
VICE-CHAIRMAN HALFORD asked if Mr. Guaneli's proposed qualifying
language would ratify or protect Anchorage's ordinance regulating
transactions of used firearms. He noted that the ordinance was
originally designed to track stolen firearms. DEAN GUANELI said
that kind of law probably would not be considered reasonable in
today's world of computers. VICE-CHAIRMAN HALFORD was concerned
about ratifying laws of 200 municipal entities having no common
lexicon or ratifying laws that you do not know about.
SENATOR DONLEY stated that SJR 1 applies only to laws in existence
before the specified date, those would be considered under the
existing standard. He clarified that existing laws would be
measured under existing constitutional criteria, so if current laws
are unconstitutional they would still be unconstitutional. The
standard of today would be used.
VICE-CHAIRMAN HALFORD expressed concern that the courts decision
may be six years later because those who have a standard considered
unreasonable do not enforce it for they know they will lose it.
The issue would be avoided because of the lack of enforcement.
DEAN GUANELI explained his belief that current laws should be able
to withstand a court test of current standards not future
standards.
SENATOR LEMAN emphasized that the legislative history of SJR 39
makes clear that appropriate restrictions would continue to be so.
He stated that the intent to have a clean constitutional amendment
does no more than clarify what everyone already thinks the
constitution means. He said that Mr. Guaneli's fear of a clean
constitutional amendment was not founded in fact. He suggested
that he and Mr. Guaneli agreed on the result but not the vehicle
which would achieve that result.
Number 121
SENATOR LITTLE asked Mr. Guaneli if passage of this resolution and
institution of this amendment to the constitution would not allow
a school district to prohibit guns from the school grounds. DEAN
GUANELI stated that he did not believe that would be the case. Mr.
Guaneli explained that particularly in the light of modern day
events, the court would find an overriding compelling state
interest. Mr. Guaneli stated that at some point the problem of
reasonableness arises when municipalities want to extend the zone
of protection. He supported having clear lines drawn by the
legislature or the municipality not by the courts.
VICE-CHAIRMAN HALFORD questioned Mr. Guaneli on the reasonableness
of a municipality to prohibit the possession of a firearm in a
persons own home if they live within a specified zone of protection
of a school. DEAN GUANELI clarified that he did not say in their
own home.
SENATOR LITTLE asked if the adoption of SJR 1 would alleviate Mr.
Guaneli's concerns. DEAN GUANELI agreed with Senator Little and he
had other versions of language to accomplish the same thing. VICE-
CHAIRMAN HALFORD requested a packet of all of Mr. Guaneli's
information. DEAN GUANELI said that there are a number of
additional clauses that contain safer language.
SENATOR DONLEY expressed his belief that the proper standard for
firearms laws is a strict scrutiny review. The legislature should
be able to regulate arms when there is a compelling public safety
interest. He asserted that the compelling public safety interest
should be the test regarding whether laws are upheld or not; with
firearms very few safety requirements are not reasonable.
JOHN GEORGE, representing the Alaska Outdoor Council, stated
support of SJR 39. He agreed with Senator Donley on the issue of
the strict scrutiny review being the standard for review.
TAPE 94-6, SIDE A
Number 010
MIKE CHRYST supported the comments made by John George. He
supported SJR 39.
SALLY CHRYST supported SJR 39.
DAVID MCGRAW thanked Senator Leman for his on-going efforts to
protect his right to own guns.
SCOTT CORYELL supported SJR 39.
LES ZETTERBERG supported SJR 39.
LYLE STACK supported SJR 39. He added that we focus more on the
criminals and keep them in jail.
WESLEY JONES supported SJR 39.
SCOTT HAMANN said he would support what Michael Neligh would say.
Number 118
MICHAEL NELIGH asked if they might consider inserting on line 10,
"the right of the adult individual".
GREG MACHACEK said it is in the overriding state's interest to
support this bill. He said we are loosing more and more of our
rights every day and SJR 39 is a step in the right direction.
Number 159
RUDY VETTER supported SJR 39.
DAVID MILLER said he was a police officer. He said the Chiefs of
Police (who are for gun control) do not speak for the line
officers. The majority of officers he works with support SJR 39.
DWAYNE UPPLAND said he had talked to some of the Chiefs in Alaska
and they didn't support the Brady Bill so he thought that was an
unfair comment. He said he was very concerned that the language in
SJR 39 is ambiguous.
Number 200
CHARLES MCKEE supported SJR 39. He added that the right to keep
and bear arms is a cornerstone of the right to free speech.
PORTIA BABCOCK, Legislative Aide to the Senate State Affairs
Committee, said the Municipality of Anchorage passed a resolution
endorsing this resolution. Fairbanks, also, endorsed it; and Mat-
Su would probably pass one.
Number 250
SENATOR DONLEY commented that Dean Guaneli had done a very good job
of representing the Department of Law, Department of Public Safety,
and other law enforcement groups. VICE-CHAIRMAN HALFORD agreed
with Senator Donley.
SENATOR DONLEY said he supported the language in SJR 39. He said
he would like to bring a letter of intent to the Committee
clarifying the issue of the difference between a compelling state
interest and a reasonable state interest, because the higher
standard is what's appropriate.
Number 290
SENATOR JACKO called for the question on his motion to pass SJR 39
from committee with a "do pass" recommendation. There were no
objections, and it was so ordered.
There being no further business before the committee the meeting
was adjourned.
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