Coal Tattoo

MSHA adds Kentucky hearing on dust rules

The Obama administration has added another public hearing on the U.S. Mine Safety and Health Administration’s plan to “end black lung disease.”

In a Federal Register notice yesterday, MSHA published this list of public hearings:

— Dec. 7, 2010 National Mine Health and Safety Academy Beaver, W.Va.

— Jan. 11, 2011 Marriott Evansville Airport Evansville, Ind.

— Jan. 13, 2011 Sheraton Birmingham Birmingham, Ala.

— Jan. 25, 2011 Marriott Salt Lake City Salt Lake City, Utah

—  Feb. 8, 2011 The George Washington Hotel Washington, Pa.

—  Feb. 10, 2011 Jenny Wiley State Resort Park Prestonsburg, Ky.

—  Feb. 15, 2011 MSHA Headquarters Arlington, Va.

MSHA has added the hearing in Prestonsburg, Ky., apparently in response to concerns that the agency did not originally slot a hearing for Eastern Kentucky, where black lung is on the rise again.

The new schedule also changes the dates of hearings in Arlington, Va., and Washington, Pa.

The Gazette’s Andrew Clevenger has the story today on the West Virginia Supreme Court’s ruling to suspend for one year the law license of a Jackson Kelly coal industry attorney who withheld part of a medical report from a disabled coal miner who was seeking black lung benefits.

As Andrew explains:

...Justices unanimously concluded that Douglas A. Smoot violated the rules of professional conduct for lawyers by removing the “narrative summary” portion of a doctor’s report before turning it over to Elmer Daugherty, a retired miner who spent 42 years underground and who was representing himself at the time.

“[I]nsofar as we have found that the withheld portion of the report had evidentiary value, we have little difficulty concluding that Mr. Smoot’s conduct was deceitful, dishonest, a misrepresentation, and prejudicial to the administration of justice, and thus amounted to a violation,” Chief Justice Robin Davis wrote for a unanimous court.

See previous posts on this and related cases here and here, and read the full Supreme Court opinion here.

MSHA considering more black lung hearings

The Labor Department’s Mine Safety and Health Administration has a big public hearing coming up Thursday here in Charleston, where the mining community will get its say about MSHA’s proposal to tighten the rules for “rock dusting” underground coal mines to help prevent deadly explosions.

That hearing is scheduled to start at 9 a.m. at the Charleston Marriott.

Meanwhile, MSHA has announced plans for six public hearings on its proposed plan to tighten the coal-dust exposure limit to try to end black lung disease. Here’s that list of hearing locations:

Dec. 7, 2010 National Mine Health and Safety Academy Beaver, W.Va.

Dec. 9, 2010 The George Washington Hotel Washington, Pa.

Jan. 11, 2011 Marriott Evansville Airport Evansville, Ind.

Jan. 13, 2011 Sheraton Birmingham Birmingham, Ala.

Jan. 25, 2011 Marriott Salt Lake City Salt Lake City, Utah

Jan. 27, 2011 Mine Safety and Health Administration Headquarters Arlington, Va.

As several Coal Tattoo readers have pointed out, missing from that list is anywhere in Eastern Kentucky or Southwestern Virginia, a pocket of the coalfields where researchers have found an alarming resurgence of black lung.

The closest spot where miners from those areas could come and speak to MSHA about its plan?  Beaver, W.Va., where MSHA has its national training center … That’s a pretty long haul from someplace like Pike County, Ky.

I asked MSHA spokeswoman Amy Louviere about this, and she said the agency is considering scheduling an additional hearing, but that the location has not been determined.

This just in:

The U.S. Department of Labor’s Mine Safety and Health Administration today announced that it will hold six public hearings on the proposed rule “Lowering Miners’ Exposure to Respirable Coal Mine Dust, Including Continuous Personal Dust Monitors.” The notice will be available in the Federal Register on Nov. 15. The proposed rule was published Oct. 19 and is available here.

“This proposed rule would significantly improve health protections for underground and surface coal miners by reducing their occupational exposure to respirable coal mine dust,” said Joseph A. Main, assistant secretary of labor for mine safety and health. “It will lower the risk that they will suffer material impairment of health or functional capacity over their working lives.”

Each of the public hearings will begin at 9 a.m. local time and end after the last presenter speaks, but no later than 5 p.m., on the following dates at the locations indicated:

Dec. 7, 2010 National Mine Health and Safety Academy Beaver, W.Va.

Dec. 9, 2010 The George Washington Hotel Washington, Pa.

Jan. 11, 2011 Marriott Evansville Airport Evansville, Ind.

Jan. 13, 2011 Sheraton Birmingham Birmingham, Ala.

Jan. 25, 2011 Marriott Salt Lake City Salt Lake City, Utah

Jan. 27, 2011 Mine Safety and Health Administration Headquarters Arlington, Va.

Each hearing will begin with an opening statement from MSHA, followed by an opportunity for members of the public to make oral presentations. A written request is not required to speak; however, individuals and representatives of organizations wishing to speak are encouraged to notify MSHA in advance for scheduling purposes by calling 202-693-9440.

MSHA will accept post-hearing written comments and other appropriate information for the record from any interested party, including those not presenting oral statements. Comments must be received by midnight EST on Feb. 28, 2011.

Praise for Obama’s plan to end black lung

House Labor Committee Chairman George Miller, D-Calif., issued this statement in support of the U.S. Mine Safety and Health Administration’s proposed plan to end black lung disease:

After years of careful study and delays, I applaud Assistant Secretary Joe Main and Secretary Solis’ effort to seriously address the scourge of black lung disease among our nation’s coal miners. The large number of miners still getting sick every year proves that current protections are woefully out of date. When fully phased in over the next two years, these new standards will not only save lives and provide for better monitoring technology of coal dust, but they will reduce the cost of federal disability program for black lung because fewer miners will be contracting this debilitating disease.

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There’s obviously been a lot of talk during the campaign to fill Robert C. Byrd’s U.S. Senate seat about the Obama administration’s alleged “war on coal,” with Democrat and Gov. Joe Manchin trying to fend off the rather absurd suggestion by Republican John Raese that the governor doesn’t strongly support the industry.

Except for a minor blip here and there — mostly in the form of the Manchin campaign ad criticizing Raese-owned companies’ safety records, which somebody in the Manchin camp decided should be filmed at a mine that’s under federal criminal investigation for faking safety inspections — there’s been little talk about mine safety and health.

But the general thrust from both campaigns has been that Manchin and Raese both are strong supporters of coal miners, defenders of their jobs and their “way of life” against those nasty federal regulators. Almost unbelievably, Manchin took this even farther than Raese did, not only suing the U.S. Environmental Protection Agency for trying to protect the environment, but also trying to show voters he’s man enough to take his gun to a defenseless piece of federal legislation.

So if Gov. Manchin and Mr. Raese are such big supporters of coal miners, you would think they would be all about helping to put an end to black lung, a disease that has killed 10,000 coal miners in the last decade alone — including more than 1,800 in West Virginia.

And yes, what positions the candidates would take on an issue like this could be critically important … Republicans currently have mine safety legislation bottled up in the U.S. Senate, and MSHA’s ability to enact and enforce tougher dust limits could be hampered or enhanced by better funding and oversight, depending on who is speaking for miners from West Virginia’s other Senate seat. Don’t forget — the last time the nation had a Democratic president and a reformer (Davitt McAteer) running MSHA,  the GOP took over Congress in the midterm elections and proceeded to try to dismantle federal mine safety protections altogether.

While Gov. Manchin moved swiftly following the Sago and Aracoma deaths to enact new state mine rescue legislation for West Virginia, the administration here hasn’t followed through yet on increased coal-dust sampling or proposed any legislation at all in the wake of the Upper Big Branch Disaster.

And Mr. Raese? Well, he hasn’t really made improving mine safety a part of his campaign and it’s pretty clear the guy doesn’t care for federal regulation of such things.

But still, shouldn’t voters know whether either candidate would support or oppose MSHA’s new effort to eliminate black lung. Perhaps foolishly, I thought so … so I asked yesterday for comments from both campaigns about the MSHA plan.

First, I haven’t heard a word back from the Raese campaign, though I continue to get their regular e-mail blasts that they send our regularly to all of the media.

But folks at the Democratic Senatorial Campaign Committee should hold off trying to make much of that, because this is the best Gov. Manchin’s campaign could do in commenting on the MSHA plan to end black lung:

It may be challenging to meet this new rule, but everyone wants safe work and health conditions, and we must seek consistent improvements in regards to enhancing our workplace safety. It is my understanding that there is a 60-day comment period and all affected parties will be able to voice their views or concerns at this time.

Labor Secretary Hilda Solis and MSHA chief Joe Main a little while ago wrapped up a brief conference call with the media, in which they formally announced their new rulemaking that is part of the Obama administration’s “End Black Lung” campaign.

Here are the highlights of  the proposed rule:

— Phasing in, over a two-year period, a tightening of the legal limit for coal dust from 2.0 milligrams per cubic meter to 1.0 milligrams per cubic meter.

— Require the use of continuous personal dust monitors to measure miners’ exposure in a more timely and accurate manner.

— Provide for full-shift sampling — rather than averaging samples from multiple shifts, which can underestimate actual numbers — to more accurately measure miners’ exposure.

— Redefine work shifts for compliance purposes to more accurately reflect that miners simply don’t always work eight-hour shifts anymore.

In today’s news release, MSHA noted:

Based on recent data from NIOSH, cases of black lung are increasing among the nation’s coal miners. Even younger miners are showing evidence of advanced and debilitating lung disease from excessive dust exposure. Over the past decade, more than 10,000 miners have died from black lung. The federal government has paid out more than $44 billion in compensation for miners totally disabled by black lung since 1970, according to the Labor Department’s Office of Workers’ Compensation Programs.

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The Obama administration appears to be proposing a two-year phase-in of a long-recommended tighter legal limit for coal dust that causes deadly black lung disease.

Copies of the U.S. Mine Safety and Health Administration proposal are available now through the Federal Register the Department of Labor Web site here,  in advance of a news conference scheduled by MSHA chief Joe Main and Labor Secretary Hilda Solis later today.

According to the proposal, the legal limit on coal dust in underground mines — currently 2.0 milligrams per cubic meter of air — would be tightened to 1.7 milligrams six months after the rule is finalized. The limit would be tightened to 1.5 milligrams in a year and then to 1.0 milligrams a year after that.

MSHA says in the proposal:

MSHA is proposing a 24-month phase-in period to allow the mining community the opportunity to identify, develop and implement feasible engineering controls; train miners and mine management in new technology and control measures; and to improve their overall dust control program.

According to MSHA:

The proposed rule would significantly improve health protections for this Nation’s coal miners by reducing their occupational exposure to respirable coal mine dust and lowering the risk that they will suffer material impairment of health or functional capacity over their working lives.

Check back … we’ll have more on this later today.

UPDATED: For a quick commentary on this, see The Pump Handle, where Celeste Monforton calls the Obama proposal a “bold step.”

President Obama’s top worker safety regulators have scheduled a press conference call today to discuss their plan to end black lung disease.

Will their proposals really get the job done?

Well, The Hill lays out again what Coal Tattoo has been saying (see previous posts here, here, here and here)  is the key to answering that question:

The big question about Thursday’s announcement: Will the agency propose to reduce workers’ permissible exposure limit (PEL) to coal dust? Or will it simply take steps to limit miners’ exposure to the dust?

The Hill explains:

The difference is nuanced but significant.

The mining industry has argued the current PEL — which, since 1974, has been set at 2 milligrams of dust per cubic meter of air over an eight-hour shift — is appropriate, but just not very well enforced. In their version of the tale, any occurrence of black lung is the result of companies simply not complying with the current limits.

Many health and mine-safety experts, however, tell a different story. They say the current PEL is too high and doesn’t go far enough to protect the nation’s miners. If the Labor Department simply takes steps to enforce the PEL without lowering it, they warn, black lung will remain an enormous problem.

“Even if every single company were complying with the standard, you would still have the disease,” Celeste Monforton, a former mine-safety official in the Labor Department who’s now a public health professor at George Washington University, said Wednesday. “The science tells us that 2 [mg/m3] is not protective.”

Remember, the Obama administration initially issued a regulatory notice saying it planned to tighten the dust limit, but later — after Joe Main took over at MSHA — the announced plan was changed, to one that did not specifically include tightening the limit.

Stay tuned …

Black lung disease: Let’s review

With the Obama administration set to release its plan to “End Black Lung” on Thursday, perhaps it’s worth reviewing some of what the science tells us about black lung and how to prevent it …

Luckily, the folks at the National Institute for Occupational Safety and Health recently published a summary of scientific findings about black lung since 1995. It’s available online here, and NIOSH describes it this way:

In 1995 in a major NIOSH review and report of recommendations, entitled Criteria for a Recommended Standard – Occupational Exposure to Respirable Coal Mine Dust. This Current Intelligence Bulletin updates the information on coal mine dust exposures and associated health effects from 1995 to the present. In part, the intent is to determine whether the 1995 recommendations, in this respect, remain valid, and to what extent, if any, modifications or additions are needed to those recommendations. The report does not deal with, nor discuss, issues of sampling and analytical feasibility nor technical feasibility in achieving compliance.

Of course, that 1995 NIOSH report — available here — clearly recommended that MSHA tighten the allowable limit of coal dust in underground mines from 2 milligrams per cubic meter to 1 milligram per cubic meter.

So what does the new NIOSH report say? Well, how about these comments:

— While findings published since 1995 refine or add further to the understanding of the respiratory health effects of coal mine dust described in the NIOSH Criteria … they do not contradict or critically modify the primary conclusions and associated recommendations given there. Rather, the new findings strengthen those conclusions and recommendations.

Even at the lower coal mine dust levels recommended by NIOSH … some incidence of [black lung] would still be expected, especially among miners of higher rank coal.

— … Even at the 1 mg/m3 coal mine dust exposure limit recommended by the CCD, some occupational effect on ventilatory function is expected.

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MSHA tries to drum up support for black lung plan

With an announcement of the Obama administration actual plan to “End Black Lung” expected very soon, the U.S. Mine Safety and Health Administration is trying to drum up support for the proposal — before interested parties have even had a chance to see it.

UPDATED: Labor Secretary Hilda Solis has scheduled a press conference for Thursday to announce the administration’s plan.

Potential supporters have received this note from MSHA officials:

Hello folks,

Thank so much for your continuing offer to help MSHA with our End Black Lung campaign and rulemaking efforts. Sorry if I missed speaking with you – I left you a message with my contact information.

As promised, attached is the excerpt from our spring regulatory agenda on “Lowering Miners’ Exposure to Coal Mine Dust Including Continuous Personal Dust Monitors” for a bit of background on the direction of our respirable dust proposed rule.

To assist us, we appreciate if you could provide:

1) a quote of endorsement via email first (by Tuesday noon??)

2) followed by a letter (if you care to send in a formal statement). If possible, we would like this letter by COB Tuesday, October 12, 2010 (scanned and sent via email to me). The letter should be addressed to:

Mr. Joseph A. Main

Assistant Secretary of Labor

Mine Safety and Health Administration

1100 Wilson Boulevard

Arlington, VA 22209-3939

3) press availability. If yes, I will provide your contact information to Amy Louviere, our public affairs director, and she may line up media interviews with local media outlets or provide your contact info to the journalist(s) for general comments.

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MSHA black lung plan coming soon?

Late last week, the White House gave its approval — “consistent with change” — to the U.S. Mine Safety and Health Administration’s much-anticipated rulemaking proposal on coal dust and black lung, a disease that has killed 10,000 coal miners in the last decade.

Over at The Pump Handle blog, Celeste Monforton has a brief piece anticipating MSHA’s release of its proposal to the public:

The proposal was returned to MSHA from OIRA with the notation that it is approved “consistent with change.” Depending on the complexity of the comments made by OIRA, MSHA’s proposal could be published in the Federal Register in the next several weeks. I’ve written previously (here, here, here) about why these rules are necessary and long overdue.

The MSHA proposal is expected to integrate issues such as lowering the coal dust exposure limit, verification of mine operators’ dust control plans, single-shift sampling, and devices to continuously monitor respirable dust concentrations. Some of these ideas were proposed in July 2000 by MSHA during the Clinton Administration, but Mr. Main (at the time he was the UMWA’s H&S director) called that plan “fatally flawed.” As a result, the rule was not finalized. Now, with Mr. Main at the helm as the asst. secretary of labor for MSHA, I’ll be eager to see how his proposal tackles these complex issues. In the end, the objective is getting a progressive rule on the books to eliminate, once and for all, black lung disease among U.S. miners.

Not to put too fine a point on it, but the real issue to look for — the main one that matters — is whether the Obama administration decides to revert back its original promise and actually propose to tighten the legal limit for coal dust that causes black lung.

Stay tuned …

The Gazette’s Andrew Clevenger reported for us on yesterday’s W.Va. Supreme Court argument in the case over coal industry lawyer Douglas A. Smoot’s handling of a black lung benefits case. As he explained:

In 2009, the Office of Disciplinary Counsel filed formal charges against Smoot, alleging that he violated the state’s rules for lawyers by removing part of a doctor’s 2001 report before turning it over to a retired miner with an eighth-grade education who was representing himself in the black lung claim.

After a two-day hearing in June 2009, a three-member panel recommended the dismissal of all charges against Smoot, concluding that his handling of the case was in compliance with applicable black lung law. The Office of Disciplinary Counsel immediately appealed that decision to the Supreme Court.

Andrew previewed the arguments over on the Gazette’s Sustained Outrage blog, and provided helpful links to past coverage and briefs in the case, one of several legal actions over Jackson Kelly’s work defending coal companies in black lung cases.

In his story, Andrew explained:

An attorney for the State Bar asked state Supreme Court justices to suspend the law license of a black lung lawyer who removed part of a doctor’s report before disclosing it to a retired miner seeking benefits in 2001.

“This conduct is deceitful. It’s dishonest. It is misrepresentation,” Jessica Donahue, a lawyer with the bar’s Office of Disciplinary Counsel, told the justices.

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Tomorrow, when the House Education and Labor Committee takes up the mine safety reform legislation, one major provision will be missing from the Democratic bill: Language to tighten to legal limit for coal dust that causes deadly black lung disease.

It’s a glaring omission, if for no other reason that it was a major part of the S-MINER Act, the legislation that Committee Chairman George Miller, D-Calif., and other reformers were pushing not so long ago.

Now, the new legislation — to be named in honor of the late Sen. Robert C. Byrd — does include important language to update the standards for “rock-dusting” to prevent coal-dust from contributing to underground coal-mine explosions.

I’m told lawmakers did not include the language to tighten the coal-dust limits because they expect MSHA to be issuing a rulemaking on this issue … well, yes — and no. MSHA does have a regulatory agenda item for reforming black lung protections.

MSHA has indeed sent a proposal to the White House for its approval as part of the agency’s “End Black Lung” initiative. But, the Obama administration and MSHA chief Joe Main have removed from that agenda Obama’s initial promise that the rule proposed by his administration would tighten the legal dust limit.

It’s also an 0dd explanation from Democratic lawmakers, given that their current bill does include language requiring MSHA to issue final regulations within two years “to provide coal miners with the maximum feasible protection from respirable dust, including coal and silica dust, that is achievable through environmental controls.”

As Coal Tattoo readers know, the National Institute for Occupational Safety and Health has recommended a tightening of the coal-dust limit since at least 1995. A Department of Labor advisory panel so recommended in 1996 … but today, Democrats in Congress have backed off putting those simple recommendations into law.

GWagnerWhile the campaign continues against making it easier for disabled coal miners to receive their black lung benefits, there is precious little discussion from those attacking this effort by Sen. Robert C. Byrd about how to actually end this terrible disease. Isn’t that what the mining industry should really be focused on?

And yesterday, the Obama administration passed up another effort to get back on track with its initial promise to tighten the legal limit for coal dust in underground mines.

During a Web chat about MSHA priorities, agency deputy assistant secretary Greg Wagner was asked for a time frame for when MSHA would tighten the limit. Greg responded:

The regulatory agenda indicates our commitment to publish a proposed rule to reduce miners’ exposure to coal mine dust in the fall of 2010. The details of the rule will be available then.

Remember, MSHA is still talking about reducing “exposure” not about actually reducing the legal limit. Stay tuned …

When Coal Tattoo last left our friend Steve Roberts, the West Virginia Chamber of Commerce president’s political strategy was that state representatives in Washington should bottle up health-care reform unless President Obama ordered EPA to start approving new mountaintop removal mining permits.

Now that health-care reform has passed — a move that my colleague Kate Long reports will greatly benefit rural West Virginians — Roberts’ plan appears to be to try to convince us all how terribly wrong Sen. Robert C. Byrd was to make it easier for disabled coal miners or their widows to navigate the difficult process of obtaining their federal black lung benefits.

But in doing so, Roberts is playing pretty fast and loose with the facts of what the black lung language Sen. Byrd inserted into the health-care bill actually says.

I’m speaking, of course, of comments Roberts made in today’s editions of the Daily Mail:

What is so wrong about the Byrd amendment is that it is so out of date. We now have medical technology through which we can determine whether a person has the black lung disease and if so, what the impact of that disease is on a person’s health and wellbeing.

The Byrd amendment ignores sound science and simply says that anybody who has been in or around a coal mine and who has any level of impairment – that person perhaps smoked, that person perhaps had a congenital lung disease – it makes no difference, that person would automatically be entitled to black lung benefits.

If that person dies from old age or in a car wreck or from having been a chronic smoker, the Byrd amendment would provide that the surviving spouse would receive benefits.

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Early this afternoon, officials from the U.S. Department of Labor and its  Mine Safety and Health Administration will gather in Washington for a celebration to mark the 40th anniversary of the landmark federal Coal Mine Health and Safety Act of 1969.

Wait … The 40th anniversary? Wasn’t that last year? Well, yes. The law was signed on Dec. 30, 1969. But, MSHA’s celebration is officially to mark the effective date of the law, which for most provisions was March 30, 2010.

Wouldn’t today’s event be a great opportunity for the Obama administration to make some major announcement … Oh, like maybe that MSHA was going to get back on track with its initial promise to tighten the legal limit on coal dust that causes deadly black lung disease?

Folks often point to the Farmington Disaster as one of the defining events that pushed Congress to pass the 1969 Act. But my friend Paul Nyden here at the Gazette has chronicled the major role that disabled miners and the drive for justice for black lung victims played in passage of the law.

And in fact, the law set out a rigorous schedule for addressing black lung, aimed at eliminating the disease forever.

First, lawmakers set this initial limit:

Effective on the operative date of this title, each operator shall continuously maintain the average concentration of respirable dust in the mine atmosphere during each shift to which each miner in the active workings of such mine is exposed at or below 3.0 milligrams of respirable dust per cubic meter of air.

And then,within three years, the legal limit was to drop to 2.0 milligrams per cubic meter.

Finally, Congress demanded that regulators set a schedule for reducing the dust limits to a level:

… Which will prevent new incidences of respiratory disease and the future development of such disease in any person.

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Passage of the landmark health-care reform bill also means success for Sen Robert C. Byrd’s efforts to streamline the process for coal miners to obtain black lung benefits.

According to a press release from Byrd’s office, the senator inserted these two provisions in the legislation

— In cases where a miner has accumulated 15 or more years of coal mine employment, and there is medical evidence of totally disabling lung disease, there will be a legal presumption that the miner and his widow would be entitled to benefits — unless there is evidence proving that the miner’s disease was not black lung, or that the disease did not result from coal mine employment; and

— For widows of coal miners who spouses suffered from totally-disabling black lung disease and were collecting benefits, they would no longer have to reapply to retain their modest benefits.

It’s important to note that what this legislation does is reverse major cuts to black lung eligibility made during the Reagan administration in 1981. (See comments below for more discussion of this).

Miners or their widows seeking benefits have to navigate a very complicated system that often denies them simply because of the many adjudicatory hurdles.  The Daily Mail and the Chamber of Commerce campaigned against this legislation, in some cases wildly misstating what was in the bill. One Daily Mail editorial, for example, said:

Byrd inserted into the Democratic health insurance bill a provision under which anyone who worked in coal mines for 15 or more years would be presumed to have black lung disease, and therefore be entitled to compensation.

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