Senate Bill No. 97
(By Senators Anderson, Buckalew and Deem)
___________
[Introduced February 21, 1997; referred to the
Committee on the Judiciary; and then to the Committee on
Finance.]
__________
A BILL to amend chapter twenty-nine-a of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article eight, relating
generally to the creation of an office of administrative
hearings in the executive branch of state government;
specifying applicability and exceptions; defining terms;
specifying the qualifications of chief administrative law
judge; nominating persons for chief administrative law judge;
filling vacancies; establishing an administrative law
commission; making appointments to the administrative law
commission; specifying terms of the commissioners; filling
vacancies on the commission; compensating commissioners;
requiring the cooperation of state agencies with the
commission; providing for the confidentiality of information and records furnished to the commission; submitting list of
names of persons qualified for chief judge to the governor;
requiring the advice and consent of the Senate for the
appointment of chief judge; requiring the commission to assist
the chief judge in carrying out his or her duties; providing
for a system of compensation for adjudicators to be
established by the chief judge and the administrative law
commission; providing that promotions be based on ability and
performance; providing that all adjudicators be part of the
classified service; providing for discipline of adjudicators;
establishing a complaint resolution board; transferring
adjudicatory functions of personnel, equipment and funds of
affected state agencies to the office of administrative
hearings; providing that all orders, determinations, rules,
regulations, certificates, licenses and privileges in effect
prior to this article becoming effective shall remain in
effect; establishing an evaluation system for adjudicators;
establishing qualifications for adjudicators and providing
exceptions; establishing the power and duties of the chief
administrative law judge; setting forth the nature and type of
proceedings over which adjudicators may preside; providing for
the use of contract adjudicators; establishing the powers of
adjudicators relating to conducting hearings; providing that
decisions of adjudicators are final; providing for the
continued policy making authority of agencies; providing for remand of cases which require creation of policy rather than
application of policy; providing for appeal of decisions to
circuit court; providing that this article is inapplicable to
adjudications commenced prior to the effective date of the
article; and providing for the repeal of acts or parts thereof
which are inconsistent with this article.
Be it enacted by the Legislature of West Virginia:
That chapter twenty-nine-a of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended, by adding
thereto a new article, designated article eight, to read as
follows:
CHAPTER 29A. STATE ADMINISTRATIVE PROCEDURES ACT
ARTICLE 8. OFFICE OF ADMINISTRATIVE HEARINGS.
§29A-8-1. CREATION, APPLICABILITY AND EXCEPTIONS.
(a) There is hereby created as an independent unit in the
executive branch of the State government an office of
administrative hearings. All agencies that conduct administrative
hearings or adjudications as defined in section two of this article
shall be subject to the provisions of this article unless otherwise
exempted in this article.
(b) This article does not apply to the governor; any unit of
the judicial branch; any unit of the legislative branch; cases
involving the conduct of inmates or other persons admitted to public institutions; hearings conducted by the West Virginia board
of parole or the conduct of persons in military service.
(c) Until July 1, 2000 the governor may temporarily exempt an
agency, from this article.
(d) Any agency that is not required to submit cases for
hearing to the office of administrative hearings may request that
a case be heard by an adjudicator from the office of administrative
hearings. The requesting agency will be charged a fee for services
rendered by the office of administrative hearings. Fees charged by
the office of administrative hearings will be sufficient to cover
the actual cost of the services provided.
§29A-8-2. Definitions.
Unless the context clearly requires otherwise, the definitions
in this section apply throughout this article:
(1) "Action" means an order, decree, decision, determination
or ruling by an administrative agency affecting permits, licenses,
certifications, personal or property rights, privileges,
immunities, duties, liabilities or obligations of a person.
(2) "Adjudication" or "administrative hearing" means a
trial-type proceeding, whether conducted pursuant to article five
of this chapter, other statutes, or agency regulations or practice,
that offers an opportunity for an oral, fact-finding hearing before
an adjudicator.
(3) "Adjudicator" is a person who presides over administrative hearings or proceedings for alternative dispute
resolution, takes evidence, issues a decision or mediates a
resolution. An adjudicator may be an administrative law judge
(ALJ) a hearing examiner, or any other presiding official who is
qualified to so act. The functions of an adjudicator include, but
are not limited to, (A) making findings of fact, (B) making
decisions regarding federal and State statutory law, rules
regulations and agency policy, (C) writing opinions that marshal
the facts and frame the issues in a comprehensible fashion,(D)
conducting adjudicatory proceedings so as to assure a full and
informative record, and (E) conducting alternative dispute
resolution proceedings.
(4) "Administrative law judge" means an attorney at law
appointed by the chief administrative law judge to conduct or
preside at administrative hearings and other proceedings as
provided for in this article.
(5) "Agency" or "administrative agency" means any
administrative unit of state government, including any authority,
board, bureau, commission, committee, division, section or office
authorized by law to conduct adjudicatory proceedings, except those
in the legislative or judicial branches and the office of the
governor.
(6) "Alternative Dispute Resolution" means any procedure that
is used in lieu of an administrative hearing to resolve issues in
controversy, including, but not limited to, settlement, negotiations, conciliation, facilitation, mediation, fact finding,
mini-trials, and arbitration, or any combination thereof.
(7) "Chief judge" means the chief administrative law judge
appointed and serving pursuant to the provisions of sections three
and four of this article.
(8) "Commission" means the administrative law commission
established in accordance with the provisions of section four of
this article.
(9) "Hearing examiner" means a non-attorney appointed by the
chief administrative law judge to conduct or preside at
administrative hearings and other proceedings as provided in this
article.
(10) "Office" means the office of administrative hearings.
§29A-8-3. Chief administrative law judge.
(a) The chief administrative law judge, or chief judge, is
the chief administrative officer of the office and the presiding
judge of the office.
(b) To be appointed as chief judge, a nominee for the
position must possess the following qualifications:
(1) A minimum of five years experience as a practicing
attorney at law;
(2) Current active membership in the West Virginia State Bar;
and
(3) A minimum of two years experience in the preparation,
presentation or hearing of actions, or in making decisions on the
basis of the record of such hearings, originating before
administrative agencies or regulatory bodies at the federal, state
or local level.
(c) The chief judge shall be nominated as prescribed in
section four of this article, and shall be appointed by the
governor with the advice and consent of the Senate. The chief
judge shall serve for a term of six years or until a successor is
appointed and qualified to serve. A chief judge may be reappointed
upon the expiration of his or her term, by and with the advice and
consent of the Senate, if nominated for reappointment in accordance
with the provisions of section four of this article.
(d) If the office of chief judge is vacant, the judge who is
senior in length of service as a judge shall serve as acting chief
judge until such vacancy is filled. Any vacancy occurring in the
office of the chief judge shall be filled in the same manner as the
original appointment, but for the unexpired term only.
(e) The chief judge shall devote full time to the duties of
the office and shall receive a salary as provided by law.
§29A-8-4. Administrative law commission.
(a) There is established an administrative law commission for
the office of administrative hearings. The administrative law
commission shall consist of seven members selected in accordance with the provisions of subsection (b) of this section. The
commission shall submit to the governor the names of qualified
nominees for appointment to the position of chief judge.
(b) Each of the following persons shall appoint one person to
the administrative law commission on or before the first day of
August, one thousand nine hundred ninety-seven:
(1) The chief justice of the supreme court of appeals;
(2) The president of the senate;
(3) The speaker of the house of delegates;
(4) The president of the West Virginia state bar;
(5) The secretary of the bureau of employment programs;
(6) The attorney general; and
(7) The dean of the college of law of West Virginia
university.
At least one but not more than three of the commission members
shall be attorneys who practice before the office of administrative
hearings.
(c)(1) The persons first appointed to the commission pursuant
to the provisions of subdivisions (5) and (6), subsection (b) of
this section shall serve for a period of one year;
(2) The persons first appointed to the commission pursuant to
the provisions of subdivisions (2) and (3), subsection (b) of this
section shall serve for a period of two years;
(3) The persons first appointed to the commission pursuant to
the provisions of subdivisions (1), (4) and (7), subsection (b) of this section shall serve for a period of three years.
(4) Each person appointed after the initial appointments made
in accordance with the provisions of this subsection shall be
appointed for a term of three years.
(d)(1) Subject to the provisions of this subsection, a
vacancy on the commission shall be filled in the same manner as the
original appointment. An officer or employee of the state of West
Virginia may be a member of the commission. The commission shall
select one of its members to be the chairman.
(2) Any member appointed to serve an unexpired term which has
arisen by virtue of the death, disability, retirement, or
resignation of a member shall be appointed only for such unexpired
term, but shall be eligible for reappointment.
(e) (1) A member of the commission who is an officer or
employee of the State of West Virginia shall not receive additional
compensation, other than travel expenses, while serving as a member
of the commission. Other members of the commission shall receive
reasonable compensation for each day he or she is engaged in the
actual performance of his or her duties as a member of the
commission and such traveling expenses as are incurred in the
performance of his or her duties. Payment for traveling expenses
shall be made consistent with state travel rules. A member shall
not be deemed an officer or employee of the State of West Virginia
solely by reason of his or her service as a member of the
commission.
(2) All agencies of the State of West Virginia shall provide
to the commission the assistance and facilities that the commission
requests, including access to records and other information
pertaining to prospective nominees, to enable the commission to
perform its functions. Records and information so furnished shall
be treated as privileged and confidential by the commission.
(3) Funds appropriated to conduct the general operations of
the office may be expended to defray the expenses of the
commission.
(f) (1) For the initial appointment of the chief judge, the
commission, on or before the thirty-first day of October, one
thousand nine hundred ninety-seven, shall submit to the governor
for appointment a list of the names of three persons qualified to
fill the vacancy.
(2) Not less than sixty days before the term of the chief
judge expires, the commission shall submit to the governor for
appointment a list of the names of three persons, one of who may be
the incumbent chief judge, who are qualified to be the chief judge.
(3) In the event of a subsequent vacancy in such position
prior to the end of the term of the chief judge, within sixty days
after notification that a vacancy will be occurring or has
occurred the commission shall submit to the governor for
appointment a list of the names of three persons qualified to fill
the vacancy.
(4) The governor shall appoint the chief judge, by and with the advice and consent of the Senate, from the list provided
by the commission. The initial appointee shall serve as the
temporary chief administrative law judge until such time as the
Senate approval of a chief judge is received.
(g) The commission shall advise the chief administrative law
judge in carrying out his or her duties including but not limited
to: (1) identifying issues of importance to the office of
administrative hearings that should be addressed by the chief
administrative law judge; (2) reviewing issues and problems
relating to administrative hearings and the administrative process;
and (3) reviewing and commenting upon policies and rules proposed
by the chief administrative law judge.
(h) The commission shall advise the governor and the
legislature as to those agencies for which a continuing exemption
under section (1) of this article should be maintained as
consistent with the purposes of this article.
§29A-8-5. Compensation and promotion.
(a) In cooperation with the administrative law commission,
the chief judge shall establish an administrative law judge salary
system which places each administrative law judge in one of three
levels, designated ALJ-3, ALJ-2 and ALJ-1. Within these levels
salaries for administrative law judges shall be established which
are no greater than ninety percent nor less than fifty percent of
the salary of circuit court judges. The salary of the chief administrative law judge shall be set by the governor within the
prescribed levels for administrative law judges, commiserate with
the additional duties and responsibilities of the position.
(b) In cooperation with the administrative law commission,
the chief judge shall establish a hearing examiner salary system
consisting of not less than three levels designated HE-3, HE-2 and
HE-1. Within these levels salaries for hearing examiners shall be
established which are no greater than the highest salary level for
magistrates as set forth in article one, chapter fifty, section
three of the West Virginia Code, as amended.
(c) It is the intent of the Legislature that a multi-grade
system of hiring and promotion be established and maintained in the
office, and that individual adjudicators be paid according to their
abilities and performance, as shown by evaluations conducted in
accordance with the provisions of subdivision (14), section nine of
this article.
§29A-8-6. Professional employees; removal; discipline;
creation of complaint resolution board.
(a) All adjudicators in the office of administrative hearings
shall be professionals who are members of the classified service.
(b) Except as provided in subsection (c) of this section:
(1) An adjudicator may not be removed, suspended, reprimanded,
or disciplined except for misconduct, incompetence, or neglect of
duty but may be removed or suspended for physical or mental disability which can not be reasonably accommodated and prohibits
him or her from performing his or her assigned duties; and
(2) An action specified in subdivision (1) of this subsection
may be taken against an adjudicator only after the chief
administrative law judge has filed a notice of adverse action
against the adjudicator and has determined, after an opportunity
for the adjudicator to meet with the chief administrative law
judge, that there is good cause to take such action.
(c) Under legislative rules proposed for promulgation by the
chief judge in accordance with the provisions of chapter twenty- nine-a of this code, a complaint resolution board shall be
established within the office to consider and to recommend
appropriate action to be taken upon complaints against the official
conduct of adjudicators.
(d) The complaint resolution board shall consist of three
adjudicators from the office, selected by the chief judge and two
members of the state bar who shall be appointed by the president of
the West Virginia state bar. Of the members of the board initially
appointed by the chief judge, the first appointment shall end in
twelve months, the second in eighteen months and the third in two
years. Of the members of the board appointed by the president of
the West Virginia state bar, the first appointment shall end in one
year and the second appointment shall end in two years. All
subsequent appointments shall be for a term of two years. In the
event a vacancy or disqualification occurs, the member shall be replaced in the same manner as the original appointment. The chief
judge and the immediate supervisor of the adjudicator involved in
the complaint may not serve on the board.
(e) A complaint of misconduct on the part of an adjudicator
must be made in writing. The complaint shall be filed with the
chief judge, or it may be originated by the chief judge on his own
motion. The chief judge shall refer the complaint to the board.
The complaint must be referred as it was originally received or
drawn and may not be accompanied by any other material. The
adjudicator who is the subject of the complaint shall be given
notice of the complaint and shall be given the opportunity to
respond in writing to the board.
(f) The board shall inquire into the complaint and shall
render a report thereon to the chief administrative law judge. A
copy of the report shall be provided concurrently to the
adjudicator who is the subject of the complaint. The report shall
be advisory only, except that if the chief administrative law judge
decides to act contrary to the report, based on the matters
contained in the complaint, he or she may do so only upon a finding
that the recommendation of the report is unwarranted by the facts,
is not supported by substantial evidence, or is arbitrary,
capricious or otherwise not in conformity to the law.
(g) In the event a complaint is against the chief judge the
recommendation of the board shall be forwarded to the commission
and the governor for action consistent with this section.
(h) The proceedings, deliberations, and reports of the board
and the contents of complaints under this section shall be treated
as privileged and confidential. Documents considered by the board
and reports of the board are exempt from disclosure or publication.
§29A-8-7. Transfer of functions to the office.
(a) All functions performed prior to the thirtieth day of
June, one thousand nine hundred ninety-eight, by the administrative
law judges, hearing officers or other persons previously utilized
by the agencies subject to the provisions of this article to
conduct administrative hearings or other such proceedings are
hereby transferred to the office of administrative hearings.
(b) With the consent of the agencies concerned, the office of
administrative hearings may use the facilities and the services of
officers, employees, and other personnel of agencies from which
functions and duties are transferred to the office for so long as
may be needed to facilitate the orderly transfer of those functions
and duties under this article.
(c) The full-time personnel utilized for any form of
administrative adjudication, assets, liabilities, contracts,
property, records, and unexpended balances of appropriations,
authorization, allocations, and other funds employed, held, used,
arising from, available or to be made available, in connection with
the functions, offices, and agencies transferred by this article
are correspondingly transferred to the office of administrative hearings for appropriate allocation.
(d) The transfer of personnel pursuant to subsection (b) of
this section shall be without reduction in compensation .
(e) The secretary of each department or the agency head of
agencies effected by this article shall provide for such further
measures and dispositions as may be necessary to effectuate the
purposes of this article, and for the termination of the offices
and agencies specified in this article.
(f) All orders, determinations, rules, regulations,
certificates, licenses, and privileges which have been issued,
made, granted, or allowed to become effective in the exercise of
any duties, powers, or functions which are transferred under this
article and are in effect at the time this article becomes
effective shall continue in effect according to their terms until
modified, terminated, superseded, set aside, or repealed by the
office of administrative hearings of the state of West Virginia or
an adjudicator thereof in the exercise of authority vested in the
office or its members by this article, by a court of competent
jurisdiction, or by operation of law.
(g) This article shall not affect any proceeding before any
agency or component thereof which is pending at the time this
article takes effect. Such a proceeding shall be continued before
the office of administrative hearings or, to the extent the
proceeding does not relate to functions so transferred, shall be
continued before the agency in which it was pending on the thirtieth day of June, one thousand nine hundred ninety-eight.
(h) No suit, action, or other proceeding commenced on or
before the thirtieth day of June, one thousand nine hundred ninety- eight shall abate by reason of the enactment of this article.
§29A-8-8. Adjudicators; evaluation.
(a) Adjudicators shall be hired and have their duties
assigned by the chief administrative law judge. At least once
during the first year of employment and periodically thereafter,
each adjudicator shall be subject to a program of evaluation as
delineated in subsection (14), section nine of this article. The
chief judge shall establish a staggered schedule for evaluating all
adjudicators in the office at least once each year.
(b) Except as otherwise provided in subsection (c) of this
section, an administrative law judge appointed by the chief
administrative law judge shall have a minimum of three years
experience as a practicing attorney at law and be a current active
member of the West Virginia State Bar.
(c) A person who served as a full-time administrative law
judge or hearing examiner for an agency subject to the provisions
of this article prior to being transferred to the office of
administrative hearings shall not be required to have been an
attorney or, if an attorney, shall not be required to have been an
attorney for three years in order to serve as an adjudicator in the
office.
§29A-8-9. Powers and duties of the chief administrative law judge.
The following powers and duties are vested in the chief
administrative law judge of the office of administrative hearings,
and shall be performed by the chief judge or by such employees of
the office as the chief judge designates:
(1) Administering and causing the work of the office to be
performed with efficiency, uniformity, and justice including as
necessary assignment of cases on the basis of subject matter,
expertise and case complexity;
(2) Appointing such clerical and other specialized or
technical personnel as may be necessary for the conduct of the
office, these employees shall be members of the classified service;
(3) Assigning and reassigning personnel to employment within
the office;
(4) Directing and supervising the activities of
administrative law judges, hearing examiners and other employees of
the office;
(5) Accepting and expending funds and grants;
(6) Developing a code of professional responsibility for
adjudicators, rules of evidence, and procedures for administrative
hearings and other proceedings;
(7) Conducting, or otherwise providing for the conduct of,
studies and research into methods of assuring improvements in the
operation of the office of administrative hearings;
(8) Proposing for promulgation in accordance with the
provisions of article three of this chapter such rules for the
prompt implementation and coordinated administration of this
article, as may be required or appropriate, the initial rules may
be filed as emergency rules;
(9) Employing the services of the agencies effected by this
article and of the employees thereof in such manner and to such
extent as may be agreed upon by the chief judge and the chief
executive officer of such agency in order to carry out the intent
of this article;
(10) Hiring administrative law judges and hearing examiners to
fulfill the duties prescribed in this article. The chief
administrative law judge may conduct hearings and other proceedings
set forth in this article;
(11) The chief administrative law judge may also contract with
qualified individuals to serve as administrative law judges for
specific hearings. Such individuals shall be compensated for their
services on a contractual basis for each hearing. The compensation
shall be determined in advance by the chief administrative law
judge with the approval of the administrative law commission.
Adjudicators appointed pursuant to this procedure shall have the
same qualifications for appointment as permanent adjudicators;
(12) Secure, compile and maintain all records of hearing
decisions issued and decisions of alternative dispute resolutions
undertaken pursuant to this act, and such reference materials and supporting information as may be appropriate;
(13) Develop and maintain a program for the continuing
training, cross-training and education of adjudicators, including
but not limited to research, technical assistance, technical and
professional publications, compiling and disseminating information
and advise of changes in the law relative to their duties;
(14) Develop and implement a program of judicial evaluation
to aid in the performance of his or her duties. This program of
evaluation, for all adjudicators, shall focus on three areas of
judicial performance: competence, productivity, and demeanor. It
shall include consideration of: industry and promptness in
adhering to schedules, making rulings and rendering decisions;
tolerance, courtesy, patience, attentiveness, and self-control in
dealing with litigants, witnesses and counsel, and in presiding
over adjudications; legal skills and knowledge of the law and new
legal developments; analytical talents and writing abilities;
settlement skills; quantity, nature and quality of caseload
disposition; impartiality and conscientiousness. The chief judge
shall develop standards and procedures for this program, which
shall include taking comments from litigants and lawyers who have
appeared before an adjudicator. The methods used by the
adjudicator, but not the result arrived at, may be used in
evaluating an adjudicator. Before implementing any action based on
the findings of the evaluation program, the chief judge shall
discuss the findings and the proposed action with the effected adjudicator;
(15) Promulgate and enforce rules for reasonable sanctions,
including assessments of costs and attorneys' fees which may be
imposed on a party, an attorney or other representative of a party
who, without just excuse, fails to comply with any procedural order
or with any standard or rule applying to an adjudication and
including the imposition of a fine not to exceed one thousand
dollars for misconduct which obstructs or tends to obstruct the
conduct of adjudications;
§29A-8-10. Assignment of adjudicators or persons not employees of
office by special appointment; powers of
adjudicators.
(a) Adjudicators shall be assigned by the chief judge to
preside over proceedings wherein the issue is the validity of an
action of an administrative agency. Such proceedings include, but
are not limited to, the following:
(1) An application for review of the action of an agency
which will result in the denial, modification, suspension or
revocation of a permit, license, or registration;
(2) An application for review of an action of an agency which
constitutes (A) a notice of a violation of statutory or regulatory
law, (B) an order to cease or modify activities or operations, or
(C) an order which vacates or terminates a prior order or
authorization;
(3) An application for review of an assessment of a civil
penalty or penalties; and
(4) Any other application for review authorized or required
by law, whether denominated as an application, appeal, complaint,
petition or otherwise, that requires a hearing to be held on the
issue of the validity of a determination or ruling by an
administrative agency affecting personal or property rights,
privileges, immunities, duties, liabilities or obligations of a
person.
(b) A person who is not an employee of the office may be
specially appointed and assigned by the chief judge to preside over
a specific adjudication.
(c) Each adjudicator shall have and exercise the powers
conferred upon the chief judge to the extent that the chief judge
shall delegate them by rule.
(d) Each adjudicator shall have all powers necessary to the
conduct of fair, expeditious, and impartial hearings, including the
following:
(1) To administer oaths and affirmations;
(2) To issue subpoenas authorized by law;
(3) To rule on offers of proof and receive relevant evidence;
(4) To regulate the course of the hearing and the conduct of
persons at the hearing;
(5) To hold conferences for the settlement or simplification
of the issues by consent of the parties or by the use of alternative dispute resolution;
(6) To inform the parties as to the availability of one or
more methods of alternative dispute resolution, and encourage use
of such methods;
(7) To require the attendance at any conference held pursuant
to subdivision (5) of this subsection of at least one
representative of each party who has authority to negotiate
concerning resolution of the issues in controversy;
(8) To dispose of procedural motions;
(9) To make decisions;
(10) To call and question witnesses;
(11) To impose appropriate sanctions against any party or
person failing to obey an order, refusing to adhere to reasonable
standards of orderly and ethical conduct, or refusing to act in
good faith; and
(12) To take any other action authorized by the chief judge
which is within the authority of the chief judge to delegate or is
within the power of the agency from which the case or proceeding
arose.
(e) The decisions rendered by adjudicators of the office of
administrative hearings are final and binding on the parties. Any
aggrieved party may appeal an adverse decision to the Circuit Court
of Kanawha County or the county where the dispute arose in
accordance with the provisions of article five of this chapter.
(f) Nothing in this article shall be construed to deprive the head of any agency of the authority to determine and adopt agency
policy. In those instances where existing policy would not apply
or adequately resolve one or more issues in a case that would
otherwise be within the jurisdiction of the office, the agency may
petition the office for remand of the case. The petition must
fully explain the policy considerations which remove the case from
the jurisdiction of the office. The petition must be served on all
interested parties. Any party may file a response in opposition or
support of the petition. The office must decide jurisdictional
questions within ten days of receipt of all evidence and arguments.
§29A-8-11. Inapplicability of act to adjudication initiated prior
to effective date.
Nothing in this article shall be construed to affect the
conduct of any adjudication initiated prior to the effective date
of this act, or the making of any adjudicatory decision in such
adjudication.
§29A-8-12. Repeal of inconsistent acts and parts of act.
All acts and parts of acts inconsistent with any of the
provisions of this article are, to the extent of such
inconsistency, superseded and repealed.
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