Professional Documents
Culture Documents
and adding the words ‘‘the APHIS- ■ f. In paragraph (i), by removing the included sections 308.161–308.164.
defined EU CSF region’’ in their place words ‘‘EU–15’’ and adding the words Section 708 of FSRRA made various
and by removing the words ‘‘an EU–15’’ ‘‘APHIS-defined EU CSF region’’ in modifications to section 8(g) of the FDI
and adding the word ‘‘the’’ in their their place. Act to clarify the extent of the
place. Done in Washington, DC, this 20th day of suspension, removal and prohibition
■ g. In paragraph (b)(6), by removing the November 2007. authority of the Federal banking
words ‘‘EU–15’’ and adding the words Kevin Shea, agencies in cases of certain crimes by
‘‘APHIS-defined EU CSF region’’ in institution-affiliated parties (IAPs).
Acting Administrator, Animal and Plant
their place. Health Inspection Service. Minor modifications were made to the
[FR Doc. E7–23126 Filed 11–27–07; 8:45 am]
predicate and findings requirements of
PART 98—IMPORTATION OF CERTAIN section 8(g)(1), as well as conforming
ANIMAL EMBRYOS AND ANIMAL BILLING CODE 3410–34–P
amendments to sections 8(g)(2) and (3).
SEMEN Significantly, section 8(g)(1) was
■ 16. The authority citation for part 98 modified to clarify that the appropriate
FEDERAL DEPOSIT INSURANCE Federal banking agency may suspend or
continues to read as follows: CORPORATION prohibit individuals who are the subject
Authority: 7 U.S.C. 1622 and 8301–8317; of criminal proceedings involving
21 U.S.C. 136 and 136a; 31 U.S.C. 9701; 7 12 CFR Part 308
CFR 2.22, 2.80, and 371.4. certain crimes from participation in the
RIN 3064–AD22 affairs of any depository institution, not
■ 17. In § 98.30, the definition of only the depository institution with
European Union-15 (EU–15) is removed Rules of Practice and Procedure which the IAP is or was associated.
and a definition of APHIS-defined EU AGENCY: Federal Deposit Insurance In addition, because the previous
CSF region is added, in alphabetical Corporation. suspension language of section 8(g) had
order, to read as follows: required findings specific to the
ACTION: Final rule.
§ 98.30 Definitions. depositors of the depository institution
SUMMARY: The Federal Deposit or to the depository institution itself, it
* * * * * was unclear whether a covered
APHIS-defined EU CSF region. The Insurance Corporation (FDIC) is
amending its procedural regulations individual could be suspended if the
European Union Member States of
implementing sections 8(g) and 8(b) of institution had ceased to exist. This
Austria, Belgium, the Czech Republic,
the Federal Deposit Insurance Act. The problem was addressed by directing the
Denmark, Finland, France, Germany,
amendments are generally technical in required findings to ‘‘any relevant
Greece, Italy, Latvia, Lithuania,
nature, and are necessary to ensure that depository institution,’’ which is
Luxembourg, the Netherlands, Poland,
the rules are consistent with statutory defined in a new subsection (E) to mean
Portugal, Republic of Ireland, Spain,
changes effected by sections 708 and any depository institution of which the
Sweden, and the United Kingdom
702 of the Financial Services Regulatory party is or was an IAP at the time the
(England, Scotland, Wales, the Isle of
Relief Act of 2006. information, indictment, complaint,
Man, and Northern Ireland).
DATES: Effective Date: November 28, suspension notice or order of
* * * * * prohibition is issued.
2007.
§ 98.38 [Amended] Since much of the language of section
FOR FURTHER INFORMATION CONTACT: 8(g) is repeated in the FDIC’s
■ 18. Section 98.38 is amended as Brett A. McCallister, Review Examiner, implementing regulations at Part 308,
follows: FDIC, 1101 Club Village Drive, Suite
■ a. In the section heading, by removing
Subpart N—Rules and Procedures
101, Columbia, MO 65203; telephone: Applicable to Proceedings Relating to
the words ‘‘EU–15’’ and adding the (816) 234–8099 x 4223; or electronic
words ‘‘APHIS-defined EU CSF region’’ Suspension, Removal, and Prohibition
mail: bmccallister@fdic.gov; or Richard Where a Felony is Charged, 12 CFR
in their place. Bogue, Counsel, FDIC, 550 17th Street,
■ b. In the introductory text of the
308.161–164, numerous conforming
NW., Washington, DC 20429; telephone: amendments of the regulations are
section, paragraph (a), and paragraph
(202) 898–3726; facsimile: (202) 898– required. Finally, a few changes are
(b)(1), by removing the words ‘‘EU–15’’
3658; or electronic mail: made in order to standardize references
and adding the words ‘‘APHIS-defined
rbogue@fdic.gov. contained in the various sections and to
EU CSF region’’ in their place.
■ c. In paragraph (b)(2), by removing the SUPPLEMENTARY INFORMATION: make the hearing procedures easier to
words ‘‘the EU–15’’ and adding the understand and to conform with current
I. Background practice and procedure.
words ‘‘the APHIS-defined EU CSF
region’’ in their place and by removing On October 13, 2006, the President Section 702 of FSRRA enacted a new
the words ‘‘an EU–15’’ and adding the signed into law Public Law 109–351, the section 50 of the FDI Act, codified at 12
word ‘‘the’’ in their place. Financial Services Regulatory Relief Act U.S.C. 1831aa, entitled ‘‘Enforcement of
■ d. In paragraph (b)(3), by removing the of 2006 (FSRRA). Section 708 of the Agreements.’’ Subsection (a) of the new
words ‘‘EU–15 established’’ and adding FSRRA modified section 8(g) of the section 50 provides that:
the words ‘‘APHIS-defined EU CSF Federal Deposit Insurance Act (FDI Act), ‘‘Notwithstanding clause (i) or (ii) of
region established’’ in their place and by in a number of ways. section 8(b)(6)(A) or section
removing the words ‘‘EU–15’’ On August 9, 1991, the FDIC issued 38(e)(2)(E)(i), the appropriate Federal
immediately before the word a final rule entitled ‘‘Rules of Practice banking agency for a depository
‘‘Member’’. and Procedure.’’ 56 FR 37975, August 9, institution may enforce, under section 8,
ebenthall on PRODPC61 with RULES
■ e. In paragraph (f), by removing the 1991. This rule contained a Subpart N, the terms of—
words ‘‘Office International des entitled ‘‘Rules and Procedures (1) Any condition imposed in writing
Epizooties’’ and the parentheses Applicable to Proceedings Relating to by the agency on the depository
surrounding the words ‘‘World Suspension, Removal, and Prohibition institution or an institution-affiliated
Organization for Animal Health’’. Where a Felony is Charged,’’ which party in connection with any action on
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67234 Federal Register / Vol. 72, No. 228 / Wednesday, November 28, 2007 / Rules and Regulations
any application, notice, or other request required findings recited in subsection desirable to implement the necessary
concerning the depository institution; or (a)(1)(iii) to reflect the statutory changes technical and conforming regulatory
(2) Any written agreement entered to section 8(g). amendments as soon as possible. Thus,
into between the agency and the the FDIC has determined for good cause
depository institution or an institution- Section 308.163—Notice of Suspension,
that public notice and comment are
affiliated party.’’ and Orders of Removal and Prohibition
unnecessary, and that the rule should be
On August 9, 1991, the FDIC issued The proposed rule: (1) Revises the published in final form.
a final rule entitled ‘‘Rules of Practice title of the section to read ‘‘Notice of
and Procedure.’’ 56 FR 37975, August 9, suspension or prohibition, and orders of IV. Paperwork Reduction Act
1991. This rule contained a Subpart G, removal or prohibition;’’ (2) revises the The proposed rule will not create or
entitled ‘‘Rules and Procedures scope of the prohibition from ‘‘the modify any collections of information
Applicable to Proceedings Relating to bank’’ to ‘‘any depository institution’’ in pursuant to the Paperwork Reduction
Cease-and-Desist Orders’’ which subsections (a)(1) and (b)(1); revises the Act (44 U.S.C. 3501 et seq.).
included section 308.127, entitled required findings in subsection (b)(1); Consequently, no information has been
‘‘Scope.’’ Section 308.127(a) described (3) corrects the cross reference in submitted to the Office of Management
the scope of rules applicable to cease- subsection (b)(2) from 308.161(a)(ii) to and Budget for review.
and-desist proceedings under section 308.161(a)(2); and moves subsection
V. Regulatory Flexibility Act
8(b) of the FDI Act. Because the new (a)(2) respecting the filing and content
section 50 modifies the requirements for of requests for hearing to a new The Regulatory Flexibility Act (5
pursuit of affirmative action under subsection (c) to make clear that there U.S.C. 601–612) requires an agency to
section 8(b)(6), it is appropriate that the is a right to a hearing regarding both publish an initial regulatory flexibility
procedural regulations respecting notices of suspension and prohibition analysis, except to the extent provided
pursuit of cease-and-desist actions be and orders of removal and prohibition. in 5 U.S.C. 605(b), whenever the agency
amended to reflect the applicability of is required to publish a general notice
Section 308.164—Hearings of proposed rulemaking for a proposed
the new section 50. Accordingly, the
final rule modifies the procedural The proposed rule: (1) Eliminates rule. For the reasons discussed above,
regulations with the addition of a cross- confusion by changing references to the the FDIC is publishing this rule as a
reference to the new section 50. party filing the request for hearing from final rule, for which no publication of
the ‘‘applicant’’ to the ‘‘institution- a general notice of proposed rulemaking
II. The Final Rule affiliated party;’’ (2) eliminates is necessary. No regulatory flexibility
The following is a section-by-section confusion in subsection (c) caused by analysis is required.
discussion of the final rule revisions to the apparent ability of the bank to waive
the FDIC’s regulations. a hearing even if the affected individual VI. The Treasury and General
were to request a hearing; (3) in Government Appropriations Act,
Section 308.161—Scope 1999—Assessment of Federal
subsections (d) and (e) makes it clear
The proposed rule: (1) Revises the that there is a right to a hearing Regulations and Policies on Families
scope of the prohibition from ‘‘the regarding both notices of suspension The FDIC has determined that the
bank’’ to ‘‘any depository institution;’’ and prohibition and orders of removal proposed rule will not affect family
and (2) revises the description of the and prohibition. well-being within the meaning of
predicate offenses and the required section 654 of the Treasury and General
findings to reflect statutory changes to Section 308.127—Scope Subpart G Government Appropriations Act,
section 8(g). The predicate offense The final rule: (1) Revises the heading enacted as part of the Omnibus
description changed from ‘‘is charged in for section 308.127(a) from ‘‘Cease-and- Consolidated and Emergency
any state or federal information, desist proceedings under section 8 of Supplemental Appropriations Act of
indictment, or complaint, with the the FDIA ‘‘Cease-and-desist proceeding 1999 (Pub. L. 105–277, 112 Stat. 2681).
commission of or participation in’’ to under sections 8 and 50 of the FDIA;’’
‘‘is the subject of any state or federal and (2) at the end of section 308.127(a), VII. Small Business Regulatory
information, indictment, or complaint, replaces the period with a comma and Enforcement Fairness Act
involving the commission of or adds ‘‘and section 50 of the FDIA, 12 The Small Business Regulatory
participation in.’’ The required findings U.S.C. 1831aa.’’ Enforcement Fairness Act of 1996
changed from ‘‘if continued service or (SBREFA) (Title II, Pub. L. 104–121)
III. Exemption From Public Notice and
participation by such party poses a provides generally for agencies to report
Comment
threat to the interests of the bank’s rules to Congress and the General
depositors or threatens to impair public The revisions to part 308 do not Accounting Office (GAO) for review.
confidence in the depository constitute a ‘‘rule’’ for which the FDIC The reporting requirement is triggered
institution’’ to ‘‘if continued service or is required to publish a general notice when a federal agency issues a final
participation by such party posed, of proposed rulemaking under section rule. The FDIC will file the appropriate
poses, or may pose a threat to the 553(b) of Title 5 of the United States reports with Congress and the GAO as
interests of the depositors of, or Code. This is because the final rule required by SBREFA. The Office of
threatened, threatens, or may threaten to contains only clarifications and Management and Budget has
impair public confidence in, any technical changes intended to bring the determined that the proposed rule does
relevant depository institution.’’ agency’s rules of practice and procedure not constitute a ‘‘major rule’’ as defined
into conformity with statutory changes by SBREFA.
Section 308.162—Relevant and current agency practices and
Considerations VIII. Effective Date
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Federal Register / Vol. 72, No. 228 / Wednesday, November 28, 2007 / Rules and Regulations 67235
Federal Register (5 U.S.C. 553). One Subpart N—Rules and Procedures year under state or federal law and
exception to this requirement is for a Applicable to Proceedings Relating to which involves dishonesty or breach of
finding of ‘‘good cause’’ (Id. At 553(d)). Suspension, Removal, and Prohibition trust; and
For the final rule, the Board finds ‘‘good Where a Felony Is Charged (ii) Whether the alleged offense is a
cause’’ to make the amendments criminal violation of section 1956, 1957,
effective immediately upon publication § 308.161 Scope. or 1960 of Title 18 or section 5322 or
in the Federal Register because the The rules and procedures set forth in 5324 of Title 31; and
amendments are technical and this subpart shall apply to the following: (iii) Whether continued service or
conforming to pre-existing statutory and (a) Proceedings to suspend an participation by the institution-affiliated
regulatory requirements. institution-affiliated party of an insured party posed, poses, or may pose a threat
state nonmember bank, or to prohibit to the interests of the depositors of, or
Lists of Subjects in 12 CFR Part 308 such party from further participation in threatened, threatens, or may threaten to
the conduct of the affairs of any impair public confidence in, any
Administrative practice and depository institution, if continued
procedure, Bank deposit insurance, relevant depository institution (as
service or participation by such party defined at section 1818(g)(1)(E) of Title
Banks, banking, Claims, Crime, Equal posed, poses, or may pose a threat to the
access to justice, Fraud, Investigations, 12).
interests of the depositors of, or
Lawyers, Penalties. (b) The question of whether an
threatened, threatens, or may threaten to
institution-affiliated party is guilty of
■Accordingly, 12 CFR part 308 is impair public confidence in, any
the subject crime shall not be tried or
amended as follows: relevant depository institution (as
considered in a proceeding under this
defined at section 1818(g)(1)(E) of Title
subpart.
PART 308—RULES OF PRACTICE AND 12), where the individual is the subject
PROCEDURE of any state or federal information, § 308.163 Notice of suspension or
indictment, or complaint, involving the prohibition, and orders of removal or
■ 1. The authority citation for part 308 commission of, or participation in: prohibition.
is revised to read as follows: (1) A crime involving dishonesty or (a) Notice of suspension or
Authority: 5 U.S.C. 504, 554–557; 12
breach of trust punishable by prohibition.
U.S.C. 93(b), 164, 505, 1815(e), 1817, 1818,
imprisonment exceeding one year under (1) The Board of Directors or its
1820, 1828, 1829, 1829b, 1831i, 1831m(g)(4), state or federal law; or designee may suspend or prohibit from
1831o, 1831p–1, 1832(c), 1884(b), 1972,
(2) A criminal violation of section further participation in the conduct of
3102, 3108(a), 3349, 3909, 4717, 15 U.S.C.
1956, 1957, or 1960 of Title 18 or the affairs of any depository institution
78(h) and (i), 78o–4(c), 78o–5, 78q–1, 78s, section 5322 or 5324 of Title 31. an institution-affiliated party by written
78u, 78u–2, 78u–3, and 78w, 6801(b),
(b) Proceedings to remove from office notice of suspension or prohibition
6805(b)(1); 28 U.S.C. 2461 note; 31 U.S.C.
or to prohibit an institution-affiliated upon a determination by the Board of
330, 5321; 42 U.S.C. 4012a; Sec. 3100(s), Pub. party from further participation in the Directors or its designee that the
L. 104–134, 110 Stat. 1321–358; and Pub. L. conduct of the affairs of any depository grounds for such suspension or
109–351. institution without the consent of the prohibition exist. The written notice of
Board of Directors or its designee where: suspension or prohibition shall be
■ 2. Revise § 308.127(a) to read as (1) A judgment of conviction or an served upon the institution-affiliated
follows: agreement to enter a pre-trial diversion party and any depository institution that
or other similar program has been the subject of the action is affiliated
§ 308.127 Scope. entered against such party in connection with at the time the notice is issued.
(a) Cease-and-desist proceedings with a crime described in paragraph
(2) The suspension or prohibition
under sections 8 and 50 of the FDIA. (a)(1) of this section that is not subject
shall be effective immediately upon
The rules and procedures of this to further appellate review, if continued
service on the institution-affiliated
subpart, subpart B of the Local Rules service or participation by such party
party, and shall remain in effect until
and the Uniform Rules shall apply to posed, poses, or may pose a threat to the
final disposition of the information,
proceedings to order an insured interests of the depositors of, or
indictment, complaint, or until it is
nonmember bank or an institution- threatened, threatens, or may threaten to
terminated by the Board of Directors or
affiliated party to cease and desist from impair public confidence in, any
its designee under the provisions of
practices and violations described in relevant depository institution (as
§ 308.164 or otherwise.
section 8(b) of the FDIA, 12 U.S.C. defined at section 1818(g)(1)(E) of Title
12); or (b) Order of removal or prohibition.
1818(b), and section 50 of the FDIA, 12 (1) The Board of Directors or its
U.S.C. 1831aa. (2) A judgment of conviction or an
agreement to enter a pre-trial diversion designee may issue an order removing
* * * * * or other similar program has been or prohibiting from further participation
entered against such party in connection in the conduct of the affairs of any
■ 3. Revise Subpart N to read as follows: depository institution an institution-
with a crime described in paragraph
Subpart N—Rules and Procedures (a)(2) of this section. affiliated party, when a final judgment
Applicable to Proceedings Relating to of conviction not subject to further
Suspension, Removal, and Prohibition § 308.162 Relevant considerations. appellate review is entered against the
Where a Felony Is Charged (a)(1) In proceedings under institution-affiliated party for a crime
Sec. § 308.161(a) and (b) for a notice of referred to in § 308.161(a)(1) and
308.161 Scope. suspension or prohibition, or a removal continued service or participation by
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308.162 Relevant considerations. or prohibition order, the following shall such party posed, poses, or may pose a
308.163 Notice of suspension or be considered: threat to the interests of the depositors
prohibition, and orders of removal or (i) Whether the alleged offense is a of, or threatened, threatens, or may
prohibition. crime which is punishable by threaten to impair public confidence in,
308.164 Hearings. imprisonment for a term exceeding one any relevant depository institution (as
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67236 Federal Register / Vol. 72, No. 228 / Wednesday, November 28, 2007 / Rules and Regulations
defined at section 1818(g)(1)(E) of Title (6) In the course of or in connection modify a notice of suspension or
12). with any hearing under paragraph (b) of prohibition or an order of removal or
(2) An order of removal or prohibition this section, the presiding officer shall prohibition where the decision is
shall be entered if a judgment of have the power to administer oaths and favorable to the institution-affiliated
conviction is entered against the affirmations, to take or cause to be taken party.
institution-affiliated party for a crime depositions of unavailable witnesses, Dated this 5th day of November, 2007.
described in § 308.161(a)(2). and to issue, revoke, quash, or modify
Robert E. Feldman,
(c) The notice of suspension or subpoenas and subpoenas duces tecum.
prohibition or the order of removal or Executive Secretary.
Where the presentation of witnesses is
prohibition shall: permitted, the presiding officer may [FR Doc. E7–22969 Filed 11–27–07; 8:45 am]
(1) Inform the institution-affiliated require the attendance of witnesses from BILLING CODE 6714–01–P
party that a written request for a any state, territory, or other place
hearing, stating the relief desired and subject to the jurisdiction of the United
grounds therefore, and any supporting States at any location where the DEPARTMENT OF TRANSPORTATION
evidence, may be filed with the proceeding is being conducted. Witness
Executive Secretary within 30 days after fees shall be paid in accordance with Federal Aviation Administration
receipt of the written notice or order; § 308.14 of the Uniform Rules.
and (7) Upon the request of the 14 CFR Part 39
(2) Summarize or cite to the relevant institution-affiliated party afforded the [Docket No. FAA–2007–29259; Directorate
considerations specified in § 308.162 of hearing, or the members of the FDIC Identifier 2007–NM–195–AD; Amendment
this subpart. enforcement staff, the record shall 39–15274; AD 2007–24–08]
remain open for five business days
§ 308.164 Hearings. following the hearing for the parties to RIN 2120–AA64
(a) Hearing dates. The Executive make additional submissions to the
Secretary shall order a hearing to be record. Airworthiness Directives; Boeing
commenced within 30 days after receipt (8) The presiding officer shall make Model 767 Airplanes
of a request for hearing filed pursuant to recommendations to the Board of AGENCY: Federal Aviation
§ 308.163. Upon the request of the Directors, where possible, within 10 Administration (FAA), Department of
institution-affiliated party, the presiding days after the last day for the parties to Transportation (DOT).
officer or the Executive Secretary may submit additions to the record.
ACTION: Final rule.
order a later hearing date. (9) The presiding officer shall forward
(b) Hearing procedure. (1) The hearing his or her recommendation to the SUMMARY: The FAA is superseding an
shall be held in Washington, DC, or at Executive Secretary who shall promptly existing airworthiness directive (AD)
another designated place, before a certify the entire record, including the that applies to all Boeing Model 767
presiding officer designated by the recommendation to the Board of airplanes. That AD currently requires
Executive Secretary. Directors. The Executive Secretary’s repetitive measurements of the rudder
(2) The provisions of §§ 308.6 through certification shall close the record. and elevator freeplay, repetitive
308.12, 308.16, and 308.21 of the (c) Written submissions in lieu of lubrications of rudder and elevator
Uniform Rules and §§ 308.101 through hearing. The institution-affiliated party components, and related investigative/
308.102 and 308.104 through 308.106 of may in writing waive a hearing and corrective actions if necessary. This new
subpart B of the Local Rules shall apply elect to have the matter determined on AD instead requires revised repetitive
to hearings held pursuant to this the basis of written submissions. measurements of the rudder freeplay
subpart. (d) Failure to request or appear at
and the elevator freeplay for each of the
(3) The institution-affiliated party hearing. Failure to request a hearing
power control actuators (PCAs) that
may appear at the hearing and shall shall constitute a waiver of the
move the rudder and elevator, corrective
have the right to introduce relevant and opportunity for a hearing. Failure to
and related investigative actions if
material documents and oral argument. appear at a hearing in person or through
necessary, and repetitive lubrications of
Members of the FDIC enforcement staff an authorized representative shall
the rudder and elevator components.
may attend the hearing and participate constitute a waiver of hearing. If a
For some airplanes, this AD also
as representatives of the FDIC hearing is waived, the order shall be
requires related concurrent actions. This
enforcement staff. final and unappealable, and shall
AD results from reports of freeplay-
(4) There shall be no discovery in remain in full force and effect pursuant
induced vibration of the rudder and the
proceedings under this subpart. to § 308.163.
(5) At the discretion of the presiding (e) Decision by Board of Directors or elevator. The potential for vibration of
officer, witnesses may be presented its designee. Within 60 days following the control surface should be avoided
within specified time limits, provided the Executive Secretary’s certification of because the point of transition from
that a list of witnesses is furnished to the record to the Board of Directors or vibration to divergent flutter is
the presiding officer and to all other its designee, the Board of Directors or its unknown. We are issuing this AD to
parties prior to the hearing. Witnesses designee shall notify the institution- prevent excessive vibration of the
shall be sworn, unless otherwise affiliated party whether the notice of airframe during flight, which could
directed by the presiding officer. The suspension or prohibition or the order result in loss of control of the airplane.
presiding officer may ask questions of of removal or prohibition will be DATES: This AD becomes effective
any witness. Each party shall have the continued, terminated, or otherwise November 28, 2007.
opportunity to cross-examine any modified. The notification shall state The Director of the Federal Register
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witness presented by an opposing party. the basis for any decision of the Board approved the incorporation by reference
The transcript of the proceedings shall of Directors or its designee that is of certain publications listed in the AD
be furnished, upon request and payment adverse to the institution-affiliated as of November 28, 2007.
of the cost thereof, to the institution- party. The Board of Directors or its ADDRESSES: For service information
affiliated party afforded the hearing. designee shall promptly rescind or identified in this AD, contact Boeing
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