Legislature(2003 - 2004)

01/27/2004 08:00 AM STA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HB 350-CRIME VICTIMS' COMPENSATION FOR ARSON                                                                                  
                                                                                                                                
Number 0060                                                                                                                     
                                                                                                                                
CHAIR WEYHRAUCH  announced that the  first order of  business was                                                               
HOUSE BILL NO.  350, "An Act relating to  adding personal injury,                                                               
death, and property damage from arson  in the first degree to the                                                               
offenses compensable by the Violent Crimes Compensation Board."                                                                 
                                                                                                                                
Number 0117                                                                                                                     
                                                                                                                                
REPRESENTATIVE  SEATON moved  to adopt  the committee  substitute                                                               
(CS) for HB  350, [Version 23-LS1324\Q, Luckhaupt,  1/21/04, as a                                                               
work draft.   There being no objection, Version Q  was before the                                                               
committee.                                                                                                                      
                                                                                                                                
Number 0150                                                                                                                     
                                                                                                                                
REPRESENTATIVE CARL  GATTO, Alaska State Legislature,  as sponsor                                                               
of  HB  350,  revealed  that  he  spent  25  years  in  the  fire                                                               
department  in Anchorage  and  as  a result  has  responded to  a                                                               
countless  number of  small fires,  fewer large  fires, and  many                                                               
medical runs.  He said he  has seen many of the difficulties that                                                               
people  suffer  as a  result  of  fires.   Representative  Gatto,                                                               
depicting  the   viciousness  of  arson,  recounted   a  personal                                                               
experience  in his  own community  whereby  a friend  of his  was                                                               
asleep at home and  his wife awoke at 3 a.m.  to noises and found                                                               
that the  side of  the house  was on fire.   The  fire department                                                               
said that at that hour of  the morning, the fire had clearly been                                                               
set by someone.                                                                                                                 
                                                                                                                                
REPRESENTATIVE GATTO told the committee  that when [fire fighters                                                               
respond to] a fire  at 2 a.m. and find a car  in the driveway and                                                               
no smoke  alarm going  off, they are  fairly certain  that people                                                               
are inside;  therefore, a search  and rescue  must be done.   The                                                               
situation [where  his friends  awoke to find  the house  on fire]                                                               
clearly was attempted murder, he stated.                                                                                        
                                                                                                                                
REPRESENTATIVE GATTO said that death  is not the only devastating                                                               
result  of  fire, but  sometimes  more  devastating are  injuries                                                               
resulting from fires.   That is why there  are special facilities                                                               
that  provide long-term  care.   He mentioned  military personnel                                                               
coming back from war with burns.  He continued as follows:                                                                      
                                                                                                                                
     Because  it  is  so  ...  devastating  to  people,  and                                                                    
     because  it was  not included  in the  list of  violent                                                                    
     crimes  compensation,  Representative Gruenberg  and  I                                                                    
     looked at it,  and it just seemed apparent  that it was                                                                    
     simply an  error of omission.   And  it is our  wish to                                                                    
     simply add this to the list of violent crimes that can                                                                     
     receive compensation through the board.                                                                                    
                                                                                                                                
Number 0377                                                                                                                     
                                                                                                                                
CHAIR  WEYHRAUCH asked  why the  proposed legislation  limits the                                                               
addition to [the crime of] arson in the first degree.                                                                           
                                                                                                                                
Number 0400                                                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG  explained that  the reason that  he and                                                               
Representative Gatto  chose arson  in the first  degree is:   "It                                                               
requires that  somebody be placed  in immediate  physical danger;                                                               
the  other crimes  don't."    He noted  that  the Violent  Crimes                                                               
Compensation Board compensates for physical  injury or death.  He                                                               
said  he supposes  it would  be  possible to  have a  "criminally                                                               
negligent  burning with  that  result," and  he  said he  doesn't                                                               
think that  [the sponsors] would  have any objection  to amending                                                               
the bill to include "those."                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG  said  there   have  been  some  recent                                                               
crimes, particularly in Anchorage,  that brought this omission to                                                               
his attention.   There didn't seem  to be any reason  not to have                                                               
arson  in the  first degree  on the  list.   He remarked  that to                                                               
prove the  crime of  murder, the  intent to  kill must  be shown;                                                               
however, with  arson in the  first degree,  all that needs  to be                                                               
shown is  that there is  an intentional or reckless  burning, and                                                               
that somebody was thereby endangered.   He added, "You don't even                                                               
have to  show that the  person knew  that the person  was inside,                                                               
just that they  negligently set the fire."  He  said, "If you had                                                               
the injury, then you'd have the [arson in the first degree]."                                                                   
                                                                                                                                
Number 0600                                                                                                                     
                                                                                                                                
CHAIR  WEYHRAUCH stated  for the  record,  "This has  to do  with                                                               
impacts to  individuals, not to property."   If it was  opened up                                                               
to impact  to property  in regard  to compensation  received from                                                               
[the Victims of  Crime Compensation Board], then  "you've got the                                                               
entire Title 11  to add in to  the statute."  He  added that that                                                               
would be  a policy  decision that  he is  not sure  the committee                                                               
wants to [make].                                                                                                                
                                                                                                                                
REPRESENTATIVE  GRUENBERG noted  that the  original bill  version                                                               
did  include property  damage  from arson  in  the first  degree,                                                               
because  usually,  if there  is  a  fire  sufficient to  cause  a                                                               
significant  injury,  there  will also  be  significant  property                                                               
damage.   He noted that  there had  been immediate outcry  from a                                                               
number  of different  people that  "this would  soon exhaust  the                                                               
resources of that board."                                                                                                       
                                                                                                                                
CHAIR  WEYHRAUCH  asked, "Why  not  have  an immediate  effective                                                               
date?"                                                                                                                          
                                                                                                                                
REPRESENTATIVE  GRUENBERG explained  that,  as  a policy  matter,                                                               
whenever  he  introduces  legislation  he  doesn't  [include]  an                                                               
immediate effective date, unless there is  a reason to do so.  He                                                               
said, "The  statutes contemplate a  90-day period to  give people                                                               
time  to  gear  up."   He  stated  that  he  would not  have  any                                                               
objection [to an immediate effective  date].  He suggested asking                                                               
a  representative  of the  previously  mentioned  board what  the                                                               
impact on it would be.                                                                                                          
                                                                                                                                
Number 0846                                                                                                                     
                                                                                                                                
GERAD   GODFREY,  Chair,   Violent  Crimes   Compensation  Board,                                                               
Department of  Administration, told the committee  that the board                                                               
has  chosen  to  support  [HB  350] as  a  piece  of  legislation                                                               
beneficial  particularly to  victims  of arson.    He stated  his                                                               
personal belief that  the bill stands on its own  merit and sells                                                               
itself.   He said, "The  absence of  arson from the  inception of                                                               
the bill  that created the  parameters for this board  was likely                                                               
an  oversight.   Perhaps  arson,  at  the  time, didn't  fit  the                                                               
traditional   paradigm  of   the  era   for  a   violent  crime."                                                               
Ironically, he  noted, fire, in  and of  itself, may be  the most                                                               
violent natural  force on earth.   Therefore, when  an individual                                                               
sets a  fire with  or without intent,  that person  unleashes the                                                               
most  violent,  unpredictable,  and often  uncontrollable  force.                                                               
Any  personally   adverse  results  from  that   fire  should  be                                                               
compensable by  the Violent Crime Compensation  Board, he opined.                                                               
He gave  credit to both  Representatives Gatto and  Gruenberg for                                                               
addressing  this  long  overdue   and  overlooked  provision  for                                                               
victims of arson.                                                                                                               
                                                                                                                                
MR.  GODFREY mentioned  current  fiscal limitations  and said  he                                                               
would  not  normally look  to  increase  the number  of  eligible                                                               
claimants.    He  indicated  that that  was  probably  his  first                                                               
reservation  upon  looking at  the  initial  draft of  the  bill.                                                               
However, regarding [Version  Q], he stated his belief  that it is                                                               
necessary  to  add Arson,  which  perhaps  "epitomizes a  violent                                                               
crime."  He  stated that the victims of arson  have the potential                                                               
to suffer  as much, or  more than  victims of gunshot  wounds and                                                               
assaults  with any  other  type  of weapon.    He encouraged  the                                                               
committee members to support HB 350.                                                                                            
                                                                                                                                
Number 1022                                                                                                                     
                                                                                                                                
REPRESENTATIVE LYNN  asked what the  average award is  "from this                                                               
compensation front."                                                                                                            
                                                                                                                                
MR. GODFREY noted  that the maximum allowable  [award] is $40,000                                                               
and there  is no  minimum.   He surmised  that the  average falls                                                               
around  $2,000.   That  typically  would  include counseling  for                                                               
victims.  He offered more examples of how the money is awarded.                                                                 
                                                                                                                                
Number 1165                                                                                                                     
                                                                                                                                
REPRESENTATIVE LYNN stated, "I assume  that this doesn't preclude                                                               
any civil  liability for  the ... arsonist;  in other  words, ...                                                               
you still sue for civil damages.   Is that correct?"  In response                                                               
to a  request by Mr. Godfrey  to clarify his question,  he asked,                                                               
"They  can  still  sue  for  civil damages  in  addition  to  the                                                               
compensation from the fund?"                                                                                                    
                                                                                                                                
MR. GODFREY answered that they can.   He noted that the board has                                                               
a caveat in  place that if that person  should recuperate his/her                                                               
losses through  avenues such  as insurance,  he/she does  have an                                                               
obligation  to  reimburse   the  board.    He   noted  that  that                                                               
reimbursement does  not go into  the board's coffers,  but rather                                                               
into the  general fund.  He  said that it is  the board's purpose                                                               
to help people  as soon as possible, whereas he  noted that civil                                                               
law  doesn't work  in  an  expeditious fashion.    He said  that,                                                               
occasionally,  a person's  attorney  will contact  the board  and                                                               
request that  the board waive the  person's repayment obligation,                                                               
because, even after the settlement,  that person is still in dire                                                               
straits.                                                                                                                        
                                                                                                                                
REPRESENTATIVE LYNN asked,  "How much did we spend  last year for                                                               
this?"                                                                                                                          
                                                                                                                                
MR. GODFREY deferred that question to the board's administrator.                                                                
                                                                                                                                
Number 1330                                                                                                                     
                                                                                                                                
SUSAN BROWNE,  Administrator, Violent Crimes  Compensation Board,                                                               
Department of  Administration, told the committee  that the board                                                               
awarded approximately $1.3  million to fire victims  in Alaska or                                                               
their service providers.                                                                                                        
                                                                                                                                
Number 1400                                                                                                                     
                                                                                                                                
CHAIR  WEYHRAUCH  mentioned  reading  about  the  board's  binary                                                               
report in  odd number  years.   He asked if  that was  the figure                                                               
given to the legislature last year.                                                                                             
                                                                                                                                
MS. BROWNE said that she is  talking about fiscal year (FY) 2003.                                                               
She noted  that the  report has  not been  completed yet,  but is                                                               
almost available  on line and  will be delivered  sometime within                                                               
the next  month.  In response  to a question by  Chair Weyhrauch,                                                               
she said that the $1.3 million was  for one year.  In response to                                                               
a  follow-up questions  by  Chair Weyhrauch,  she  said that  the                                                               
limit for awards  is $40,000 per victim, per  incident, except in                                                               
the case  of homicide,  where there  are multiple  dependents and                                                               
the limit  is then  $80,000.   She added,  "And that  was raised,                                                               
effective two  years ago."  The  $40,000 used to be  $30,000, and                                                               
the $80,000 used  to be $40,000.  It is  funded through PFD funds                                                               
that are  not given to  those convicted of felonies  and multiple                                                               
misdemeanors.  Also, she said,  an application is made every year                                                               
for an office of victims of  crime fund, which is a Department of                                                               
Justice fund where the federal  convicts are fined and states can                                                               
apply for  a grant.   Before the  permanent fund, the  money came                                                               
from the general fund.                                                                                                          
                                                                                                                                
CHAIR WEYHRAUCH asked  Mr. Godfrey if he has an  opinion about an                                                               
immediate effective date.                                                                                                       
                                                                                                                                
MR. GODFREY replied  that he doesn't have a problem  with that at                                                               
all.  He noted  that there are not a large  number of arson cases                                                               
throughout  the state,  and he  said he  doesn't "expect  this to                                                               
really flood us with claims in  [arson in the first degree]."  He                                                               
stated that  his expectation is  that the few [claims]  the board                                                               
will get will be from those in dire need.                                                                                       
                                                                                                                                
Number 1553                                                                                                                     
                                                                                                                                
CHAIR  WEYHRAUCH asked  if adding  another crime  to the  list of                                                               
what  can be  compensated would  create  a fiscal  impact to  the                                                               
state.                                                                                                                          
                                                                                                                                
MR.  GODFREY  answered  that  the board's  funding  will  not  be                                                               
incrementally increased in  any way by the addition  of [arson in                                                               
the first degree]  to [statute].  He explained  that the increase                                                               
in applications will  have the effect of  ultimately reducing the                                                               
amount of funds  available for further applications.   At the end                                                               
of the fiscal year, he said,  the board may be holding applicants                                                               
off  or deferring  them  until it  gets new  funding.   He  said,                                                               
"That's unfortunate, but that's the way it is."                                                                                 
                                                                                                                                
Number 1637                                                                                                                     
                                                                                                                                
REPRESENTATIVE COGHILL  asked the following three  questions:  Is                                                               
there a  priority list; have other  states done this and  what is                                                               
the type  of payout that  has gone out  to the victim  because of                                                               
arson-related crime; and  has there been anything  in Alaska that                                                               
has gone wanting because of this not being in statute?                                                                          
                                                                                                                                
MR.  GODFREY, addressing  the question  regarding a  hierarchy of                                                               
claims,  said  the  board  has  a  great  deal  of  latitude  and                                                               
discretion and does everything on  a case-by-case basis.  He also                                                               
noted that  the board limits  itself through  approximately seven                                                               
policies.  Regarding the question  about other states, he said he                                                               
doesn't know.  He noted that he  has been seated on the board for                                                               
only  about a  year  now.   However,  he  said  the former  board                                                               
administrator stated  that the  disparity in  the way  states "do                                                               
this" is "nothing  short of a chasm."   He noted that  there is a                                                               
person  who serves  as a  director of  a national  violent crimes                                                               
compensation  board  who is  a  wealth  of information  regarding                                                               
other states.                                                                                                                   
                                                                                                                                
Number 1890                                                                                                                     
                                                                                                                                
MR. GODFREY  said he would  defer Representative  Coghill's third                                                               
question to the  administrator.  He explained that  if there have                                                               
been any applications  [made by victims of arson],  the office in                                                               
Juneau would  know, but  the applications  would never  have been                                                               
sent on  to the  board to consider  in one of  its meetings.   He                                                               
added that  if such an application  had made it to  the board, it                                                               
would have been  denied as noncompensable.  He  surmised that [if                                                               
the  board  covered  compensation  for  victims  of  arson],  the                                                               
average  claim   awarded  would   be  for  personal   injury  and                                                               
psychological  counseling.    The  financial burden  for  a  burn                                                               
victim can  be astronomical,  he stated,  because the  victim may                                                               
need skin  grafts for years to  come.  That person  may come back                                                               
years later for  reconsideration by the board  after having their                                                               
first claim granted.   The board would then have  to set a policy                                                               
at that time  to decide how long it would  continue to cover that                                                               
person.  He indicated that some  claims may be awarded $15,000 to                                                               
$30,000 "a  hit."  He summarized  that it's a choice  of how many                                                               
get helped how much.                                                                                                            
                                                                                                                                
Number 2075                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG,   regarding  Representative  Coghill's                                                               
previously stated  question whether  there had been  any interest                                                               
in  getting  awards from  the  board  in  the past  [for  arson],                                                               
returned  to the  subject of  the recent  events in  the Mountain                                                               
View  area [in  Anchorage].    He noted  that  he  had asked  the                                                               
constituents involved if  they had applied to  the Violent Crimes                                                               
Compensation  Board; however,  he discovered  that they  were not                                                               
eligible  for  compensation [because  arson  is  not one  of  the                                                               
crimes currently covered].                                                                                                      
                                                                                                                                
REPRESENTATIVE  GRUENBERG  recalled  that  one  of  the  previous                                                               
examples offered  by Mr. Godfrey  regarding uses of the  fund was                                                               
to sometimes relocate  victims of stalking.  He  asked Ms. Browne                                                               
if Alaska  has a witness  relocation program similar to  that run                                                               
by the federal government.                                                                                                      
                                                                                                                                
MS. BROWNE answered no.                                                                                                         
                                                                                                                                
MR.  GODFREY interjected  that he  doesn't believe  there is  any                                                               
program like  that at all.   He remarked, "It's a  small world in                                                               
Alaska  and  people  know  people,  so  I  think  ...  if  you're                                                               
relocating, it would  have to be outside the state."   He offered                                                               
his  understanding that  there  are  no states  that  run such  a                                                               
program; the  federal marshals  are the  only ones  who [relocate                                                               
witnesses].   Mr. Godfrey indicated  that in order for  the board                                                               
to  even  consider  awarding  money  to a  person  who  wants  to                                                               
relocate [to get  away from a stalker, for  example], that person                                                               
would have to show that he/she has an entire plan in order.                                                                     
                                                                                                                                
Number 2235                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG  handed   out  a  spreadsheet  [showing                                                               
deaths as a  result of arson, included in  the committee packet].                                                               
He  also read  statistics regarding  incidents of  arson and  the                                                               
resulting injuries, as  follows:  Four injuries  in two incidents                                                               
in 2001;  seven injuries in three  incidents in 2002; and,  in an                                                               
incomplete 2003 report, seven injuries in one incident.                                                                         
                                                                                                                                
Number 2280                                                                                                                     
                                                                                                                                
KELLY NICOLELLO, Assistant State  Fire Marshall, Division of Fire                                                               
Prevention, Department of Public  Safety, told the committee that                                                               
he had supplied those statistics,  as well as [the spread sheet].                                                               
He  stated  that  [the  State  Fire  Marshals]  are  the  primary                                                               
investigators for  the crime of  arson in determining  the origin                                                               
and cause.  The criminal aspect  is usually followed up by either                                                               
the  Alaska   State  Troopers,  or   the  police  force   in  the                                                               
jurisdiction involved.                                                                                                          
                                                                                                                                
MR.  NICOLELLO said  the  impact on  family  members, both  those                                                               
injured  and  those dealing  with  the  loss  of loved  ones,  is                                                               
dramatic.  He  stated, "It's such a visible etching  ... on their                                                               
mind, that  to take the  crime of arson  in the first  degree and                                                               
not give  it the same weight  as somebody who is  injured or dies                                                               
by gunshot or  stabbing is really a misnomer."   He said, "We are                                                               
in  agreement with  this  bill  the way  it's  written, based  on                                                               
injury  and  death  versus  the property  rights  issue,  and  we                                                               
believe it's a good bill."                                                                                                      
                                                                                                                                
Number 2380                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GATTO,  as  a  former  fire  fighter,  said  it's                                                               
certainly obvious that firemen are  often injured and burned as a                                                               
result  of arson  fires; however,  "they're compensated  in other                                                               
ways."    He added,  "So,  I'm  going to  take  it  that this  is                                                               
generally a needs-based situation when you award?"                                                                              
                                                                                                                                
Number 2395                                                                                                                     
                                                                                                                                
MR. GODFREY  replied, "Truth  be told,  again, that  is something                                                               
that this  current seated  board is  operating by,  or attempting                                                               
to."    Statutorily,   he  added,  "that  is   not  a  criteria."                                                               
Typically, he said, the board  does give consideration regardless                                                               
of somebody's  financial status.   He noted that the  board would                                                               
not double  an award in the  instance where a person  had already                                                               
been given money by his/her insurance company.                                                                                  
                                                                                                                                
REPRESENTATIVE GATTO noted that the  existing list of things that                                                               
apply  [towards consideration  for compensation]  includes murder                                                               
and sexual assault "in any degree."   He asked Mr. Godfrey how he                                                               
feels about arson being considered only in the first degree.                                                                    
                                                                                                                                
MR. GODFREY  responded that he  is "at  peace with" arson  in the                                                               
first  degree, because  it is  cut  and dry  regarding the  crime                                                               
having taken place.  He offered  the example of the fire that was                                                               
out in the Big Lake area.  If  someone had started that fire as a                                                               
campfire that got out of control  and it enveloped the whole area                                                               
to include  "a house  where people  didn't get  out in  time," he                                                               
said he  doesn't believe that  that would  be arson in  the first                                                               
degree.   He stated  that although he  personally thinks  it's an                                                               
unfortunate incident that was a  violent occurrence, he questions                                                               
whether the  intent to violence was  there.  He said  he would be                                                               
reluctant to "increase the degrees there on that."                                                                              
                                                                                                                                
MR. GODFREY  noted that the  board still  has the option  and the                                                               
discretion to consider compensation for  [victims of arson in the                                                               
second  degree].    He  stated his  reluctance  has  always  been                                                               
getting people's hopes  up and making them "jump  through a bunch                                                               
of  hoops,  only  to  shoot  'em  down,"  when  it's  a  foregone                                                               
conclusion that there's nothing the board  is going to be able to                                                               
do for them.   He revealed that the board  has some severe fiscal                                                               
restraints  it has  continually faced  over  the last  year.   He                                                               
added, "It's very  difficult to see a scenario off  the top of my                                                               
head, whereby something beyond [arson  in the first degree] would                                                               
be compensated."                                                                                                                
                                                                                                                                
Number 2639                                                                                                                     
                                                                                                                                
MS. BROWNE noted that a few  states compensate both arson and hit                                                               
and  run;   therefore,  there  would   be  some   precedence  for                                                               
compensating  arson.   She  told  the  committee that  there  are                                                               
currently  a  couple of  claims  involving  arson that  would  be                                                               
affected when the committee decides  upon an effective date.  She                                                               
noted that  Mr. Godfrey  would not have  known that,  because the                                                               
board  has  not  received  those  claims  yet.    She  said  [the                                                               
Department of Administration] receives  two to three arson claims                                                               
each  year that  end up  "getting  closed" because  arson is  not                                                               
currently a crime that is compensated.                                                                                          
                                                                                                                                
Number 2685                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG said  he hadn't  realized that  hit and                                                               
run is  not compensated.   He suggested that the  House Judiciary                                                               
Standing  Committee, the  next  committee  of referral,  consider                                                               
adding that  to the bill.   He said  there are  a lot of  hit and                                                               
runs around, which  may "bust the bank," and he  remarked that he                                                               
is very  protective of the board  and doesn't want to  see it get                                                               
too many claims that it cannot respond to.                                                                                      
                                                                                                                                
REPRESENTATIVE GATTO said, "I'm with you on that."                                                                              
                                                                                                                                
REPRESENTATIVE GRUENBERG  explained that  he doesn't want  to add                                                               
that in the House State  Affairs Standing Committee, because that                                                               
would be "quite a step."                                                                                                        
                                                                                                                                
MR. GODFREY said he appreciates that.                                                                                           
                                                                                                                                
CHAIR WEYHRAUCH asked if there  is any opposition to an immediate                                                               
effective date.                                                                                                                 
                                                                                                                                
REPRESENTATIVE GRUENBERG  reiterated that  this is an  issue that                                                               
he has  not contemplated, but it  seems like it might  "help some                                                               
people" [to add an immediate effective date].                                                                                   
                                                                                                                                
MS. BROWNE agreed that it would.                                                                                                
                                                                                                                                
Number 2776                                                                                                                     
                                                                                                                                
CHAIR WEYHRAUCH  asked if  there was any  objection to  adding an                                                               
immediate effective date to HB 350.   There being none, it was so                                                               
ordered.                                                                                                                        
                                                                                                                                
CHAIR WEYHRAUCH closed public testimony.                                                                                        
                                                                                                                                
NUMBER 2793                                                                                                                     
                                                                                                                                
REPRESENTATIVE  HOLM  moved  to  report  CSHB  350,  Version  23-                                                               
LS1324\Q, Luckhaupt,  1/21/04, as amended, out  of committee with                                                               
individual  recommendations  and  the accompanying  fiscal  note.                                                               
There  being no  objection, CSHB  350(STA) was  moved out  of the                                                               
House State Affairs Standing Committee.                                                                                         
                                                                                                                                

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