Directives - Table of Contents|
| Record Type:||Instruction|
| Directive Number:||CSP 01-00-003|
| Old Directive Number:||STP 2.22A CH-3|
| Title:||Changes to the State Plan Policies and Procedures Manual|
| Information Date:||02/27/1990|
1. States. The States are responsible for:C. State Plan Content and Documentation. The State, Region and National office shall establish and maintain their State plan documents in a uniform format, for easy reference by OSHA and the public, and so that the plan document can be updated and kept current in an orderly fashion. An outline of the State plan document is provided in D. below which will assist in the establishment and maintenance of State plan documents.a. Responding to Federal program changes in a timely manner.2. Regions. The Regional Administrator, or designated representative, is responsible for:
b. Notifying the Region of a State-initiated change in a timely manner and submitting any necessary plan supplement.
c. Preparing and submitting plan supplements for all categories of State plan changes in a timely manner, or submitting documentation showing why a supplement in response to a Federal program change should not be required. A plan supplement is not required when a previously submitted State plan provision is already at least as effective as a Federal program change or where the Federal change would have no impact on the State program.
d. Providing documentation in the plan supplement, when the State change differs from the Federal program, identifying the specific differences and showing how the State change maintains the at least as effective status of the program.a. Informing the States of requirements regarding State plan changes, and assuring timely State submission of plan supplements.3. National Office. The Directorate of Federal-State Operations through the Office of State Programs (OSP) is responsible for:
b. Providing technical assistance to the State as needed in preparing a plan supplement, including providing the State, upon request, with an advisory opinion as to whether the changes it proposes will meet the requirements for approval. The Region shall consult as appropriate with the Directorate of Federal-State Operations before providing an advisory opinion.
c. Determining whether a plan supplement is required for a State-initiated change.
d. Performing an initial review of each plan supplement submitted for approval, working with the State to address any identified deficiencies.
e. Determining the acceptability of minor State plan changes that do not require a plan supplement.
f. Recommending approval or rejection of each plan supplement submitted for a major State plan change to the Directorate of Federal-State Operations, with supporting rationale as necessary.a. Establishing policies and procedures for the submission, review and approval of changes to State plans.
b. Ensuring that quarterly reports are prepared and transmitted to the Regions and States for tracking State response to Federal program changes, and determining whether a new or revised Federal policy or procedure as described in an OSHA directive is a Federal program change requiring State response.
c. Coordinating the National office review of a plan supplement and recommending approval or disapproval to the Assistant Secretary.
d. Preparing Federal Register notices on approval or rejection of State plan changes.
1. Table of Contents (to be updated as new documents are added).E. Updating Official Copy of State Plan.
2. Plan Narrative (updated as appropriate).
3. Appendices.a. Comprehensive enabling legislation and any additional legislation relating to the plan, including legislation establishing programs for which there is no parallel in the Federal program.
b. Regulations.(1) Inspection regulation comparable to OSHA's 29 CFR 1903.c. State Plan Policies and Procedures Documents.
(2) Recordkeeping and reporting regulations equivalent to OSHA's 29 CFR Part 1904.
(3) Variance regulations comparable to OSHA's 29 CFR part 1905.
(4) Appeal and review procedures comparable to OSHA's 29 CFR Part 2200.
(5) Regulations covering discrimination against Employees exercising Rights under the Law comparable to OSHA's 29 CFR 1977.
(6) Regulations covering State activities/programs for which there is no Federal parallel.
(7) All other regulations governing the programs.
(8) Occupational Safety and Health Standards. (If different from the Federal or copies of promulgation documents and reference to Federal where identical.)(1) Field Operations Manual (FOM)d. Inter-Agency Agreement(s), if applicable.
(2) OSHA Technical Manual (OTM)
(3) Procedures for State activities and programs for which there is no Federal parallel.
(4) Other policies documents and directives.
(5) Minor Federal Program Changes (see page 21).
e. State Poster(s). (Public sector must be covered either in the poster for the private sector or in a separate poster for the public sector.)
f. Voluntary compliance programs (including employer/ employee training and section 18(b) on-site consultation).
g. Description of health laboratory services and/or agreement for laboratory services.
h. State organization chart and staffing.
i. Current section 23(g) grant.
j Latest annual evaluation report and State response.
k. Federal Register notices approval.
NOTE: Referenced documents in j., k., and l. above need not be resubmitted, but should be inserted by Regional/National Office, and State in their official copies of the plan.
1. In order to assure that all State plans reflect current policies, procedures and operations, and so that the plan can be updated and kept current, all States shall submit an updated, consolidated plan document within two years of the issuance date of this revision to the SPM. However, States seeking consideration for final approval under section 18(e) of the OSH Act are required to submit an updated consolidated State plan as a condition for 18(e) consideration.F. Plan Supplements.
2. States shall submit two copies of their updated, consolidated plan to their Regional Administrator, identifying any significant changes, (e.g. legislation, regulations) which have not been previously submitted to OSHA. The Regional Administrator shall review the plan for completeness and forward one copy through the Office of Field Programs to the Director of Federal-State Operations.
3. Once a State plan supplement is approved, the State, Region and National Office will be able to insert dated replacement document pages in their official copy of the plan. For identical changes, they may instead insert the State submitted cover sheet describing how references in the Federal document correspond to the State's structure.
1. Definition. A major plan change is a change to a State plan which has an impact on the effectiveness of a State program. A plan supplement is a package submitted by a State to the Region transmitting a description and documentation of a major plan change.G. Description of Plan Changes. Described below are the four categories of plan changes: Federal program changes, State-initiated changes, developmental changes, and evaluation changes.
2. When Required. All major plan changes will require a plan supplement; minor plan changes which do not have an impact on the effectiveness of a State program will require only a response and not a plan supplement, but the effectiveness of their implementation is subject to evaluation under OSHA's State plan monitoring and evaluation procedures.
3. Frequency of Submission. There are two types of plan supplements that are prepared in response to Federal program changes: those in response to changes to the Field Operations Manual (FOM)/OSHA Technical Manual (OTM) and non-FOM/OTM changes. A State is not required to submit plan supplements more often than twice a year. As agreed upon by the Region and State, a State may coordinate its submission of non-FOM/OTM plan supplements to coincide with the FOM/OTM supplements (see I.1.(3)(a) of this Chapter) or use an alternate schedule. Except for major State-initiated changes, which require a shorter plan supplement timeframe, plan supplement due dates shall be set so that a State has at least 6 months from issuance of Federal program changes or State adoption of other types of State plan changes to submit the supplement to the Region.
1. Federal Program Changes. Subpart C of 29 CFR Part 1953.20 provides that a plan supplement shall be required when the Assistant Secretary determines that an alteration in the Federal program could render a State program less effective than OSHA's if it is not similarly modified. Examples of such Federal program changes are revisions in safety or health enforcement policies or procedures (including changes to field operations manuals), and regulatory changes in the Federal program (including recordkeeping and reporting requirements). The Federal Program Change paragraph of an OSHA Instruction will indicate whether a Federal program change is major by requiring a plan supplement. Minor Federal program changes do not require a plan supplement. 29 CFR Part 1955.3(a)(3) provides that failure by a State to maintain its program in accordance with the appropriate changes in the Federal program may, in the case of States without 18(e) final approval, and, shall, in the case of States with final approval, result in the initiation of plan withdrawal proceedings.H. Advisory Opinions. Advisory opinions are designed to provide a State with a basis for implementing a change to its approved plan with a preliminary determination from OSHA that the change will not render the State plan less effective as provided by 29 CFR Part 1953.50.
2. State-Initiated Changes. In accordance with Subpart E of 29 CFR Part 1953.40, any change to a State plan that is undertaken by a State on its own initiative, for its own purposes, instead of being in response to a Federal requirement, is categorized as a State-initiated change.a. State-initiated changes include actions which would affect use of grant funds under section 23(g) of the Act or matching State funds; coverage of additional issues under the plan; State plan status in relation to criteria for continued approval; necessity for concurrent Federal enforcement; and legislative, regulatory or administrative policy changes which impact on the effectiveness of the State program. These latter policy changes include such things as a reassignment of enforcement personnel, legislation restricting coverage under the plan, new enforcement policies differing significantly from the Federal model and establishment of new programs for which there is no Federal parallel, etc. Minor State-initiated changes do not require a plan supplement.3. Developmental Changes. According to 29 CFR Part 1953.10, each State with a developmental plan must set forth in its plan those changes which are designed to make its program at least as effective as the Federal program and a timetable for making such changes. A developmental change includes documentation on the completion of these developmental steps as well as amendments required in response to failure to meet any steps in the developmental schedule. A plan supplement is required under 29 CFR Part 1953.11 whenever a State completes a developmental step or fails to meet any developmental step.
b. Court cases or administrative decisions in individual cases, except as they are reflected in State legislative, regulatory, or administrative policy changes, are not considered plan changes but documentation must be submitted by States in accordance with Part II, Chapter III, C.1. of this manual. Such actions are subject to evaluation under the OSHA State plan monitoring and evaluation system (see Chapter IV, D.5).
4. Evaluation Changes. According to 29 CFR Part 1953.30, an evaluation change supplement may be required when evaluations of a State program under the OSHA State plan monitoring and evaluation procedures show that some substantive aspect of a State plan has an adverse impact on the implementation of the State program and needs revision.
1. A State may request in writing an advisory opinion from the Region prior to implementing a plan change or submitting a plan supplement. A State is encouraged to seek an advisory opinion prior to implementing any plan change which differs significantly from the Federal program.I. Procedures for Notification, Submission, Review and Approval of Plan Changes and Supplements. The requirements for State notification and plan supplement submission vary somewhat for the four categories of plan changes; however, the procedures for reviewing them are generally the same.
2. After consultation with the National Office, as appropriate, the Region shall provide a written opinion to the State on the acceptability of the proposed change.
3. An advisory opinion is not binding on the Assistant Secretary in making a final decision on the plan supplement. The Assistant Secretary shall not proceed against the State with respect to any action taken in good faith upon OSHA's advice, where all relevant facts were presented and where such action was promptly discontinued upon notification by the Assistant Secretary.
4. When a State submits a plan supplement for which an advisory opinion has been provided, it must identify any differences from the material originally submitted for opinion.
1. State Notifications, Acknowledgments and Submissions.a. Federal Program Changes.(1) Notification to State.b. State-initiated Changes.
(a) The Directorate of Administrative Programs shall send 1 copy of each Federal Program Change (FPC) directive to the States directly from the printing facility. In addition, two copies are sent to each Region for its transmission to the State.
(b) The Region shall formally transmit a copy of each FPC directive to the State for tracking purposes, using a two-way memorandum following the example contained in Appendix P. The Region shall also maintain on the FPC log a record of each change and advise the State on the content of the FPC if requested by the State.
1 The Region shall formally transmit to the State all FPC directives requiring a plan supplement, with a two-way memorandum (see Appendix P for sample format) noting that a plan supplement is required and stating what the due dates are for response and plan supplement submission. The Region and State may agree on a different number of copies to be forwarded routinely to the State.
2 The Region shall send FPC directives not requiring a plan supplement to the State at least monthly, with a two-way memorandum (see Appendix P for sample) noting that the changes do not require plan supplements and providing instructions regarding the State response to the FPC directives, including acknowledgment due dates and indication of State's intent.
(2) State Response.
(a) Due Date. The time frame for State response to all FPC directives begins upon the date of issuance of the directive. The State shall respond to all FPC's in writing to the Regional Office as soon as the State's intention is known, but no later than 70 calendar days after the date of issuance through the OSHA directives system (10 days for mailing and 60 days for response). Major FPC's may occasionally require an earlier due date. The State shall make every effort to respond as early as possible to all FPC's, especially major ones. Knowing the State's intent at an early stage regarding a new OSHA compliance policy or initiative is of great importance to the OSHA national program for its own planning and policy direction.
(b) Contents of State Response via Two-way Memorandum. The State's acknowledgment on the two-way memorandum shall indicate whether the State intends to adopt a policy that is identical to or different from the Federal policy. If the State intends to adopt a different policy, the State shall provide a general description of the policy and any plans developed for implementing the change. If the State intends to adopt an identical policy, the acknowledgment memorandum may fulfill the requirements for a plan supplement if appropriate documentation is provided as described in I.2a.
(3) Plan Supplement Submission.
(a) Field Operations Manual or OSHA Technical Manual Federal Program Changes. While compliance directives will continue to be issued on an ongoing basis, they will be incorporated into the FOM and OTM through change instructions no more than twice a year, as needed (April 1 and October 1 are the target dates). States must respond to these directives as they occur by indicating their intent (adopt identical, adopt "at least as effective" alternative, not adopt) but plan change documentation, through State FOM and OTM plan supplements, is required to be submitted no more than twice a year in response to OSHA's consolidation in the Field Manuals. Thus, the State shall have 6 months from the issuance date to submit a plan supplement in response to the issuance of an FOM or OTM or change thereto. (September 30 and March 31 would be the 6 month due dates if the Manuals are issued on the April 1 and/or October 1 target dates). However, if the Manuals are not issued on April 1 and October 1, the States shall have 6 months from the issuance date to submit a plan supplement in response to the issuance of a FOM or OTM Change.
(b) If an FOM/OTM change is not issued within six months of a change directive's issuance and the State is adopting a different policy and/or procedure, the State shall inform the Regional Administrator of implementation of the change and describe the State's different policy and/or procedure. This documentation must be submitted by the close of the calendar quarter following the target date which affords the State a 6 month period for implementation of the change, but a formal plan supplement would not be required until issuance of the next Federal FOM/OTM change. (Directives will have a statement if they will ultimately be incorporated into the FOM/OTM.
(c) Other Federal Program Changes. The State must likewise respond to non-FOM/OTM FPC's as they occur by indicating their intent and shall submit plan supplements, as required, to the Region for non-FOM/OTM FPCs twice a year on a schedule that is agreed upon by the State designee and the Regional Administrator. If desired, the schedule may coincide with the schedule for the FOM/OTM plan supplements, but must provide for submission at least twice a year.(1) State Notification to Region. The State shall notify the Region in writing within 30 days of initial State action on a State-initiated plan change. In addition, the State shall provide immediate telephone notification to the Region followed by submission of supporting documentation for State-initiated changes concerning any major change. A major change, which has an impact on the State's ability to administer its plan effectively or which would require the exercise of Federal authority to ensure employee protection, includes but is not limited to the following:2. Format for State Submission of Plan Supplements. The State shall submit four copies of any required plan supplement to the Region in accordance with the timeframes discussed above for each category of plan change. The plan supplement shall consist of a cover letter describing the plan change, a revised table of contents for the plan if necessary, documentation that the policy or procedure has been adopted and distributed to appropriate staff (e.g., copies of legislation, regulations, directives, etc.), and dated replacement document pages with an indication of page number and/or placement to be inserted in the State plan document. The following additional requirements apply as appropriate.(a) State match for 23(g) funding;c. Developmental Changes.
(b) Significant increase or decrease in personnel;
(c) Coverage of issues under the plan; and
(d) Significant legislative, regulatory, or administrative policy changes.
(2) Plan Supplement Submission. For major State-initiated plan changes, States shall also submit a plan supplement containing replacement pages for the plan to the Region no later than 60 days after notifying the Regional Administrator of occurrence of the State-initiated change or in such shorter timeframe as may be agreed upon by the Region and State. Other State initiated changes may be submitted at any time generally not to exceed 6, months after the change occurred.(1) Completed Developmental Changes. The State shall submit plan change supplements in completion of developmental steps in accordance with its approved developmental schedule.d. Evaluation Changes. The State shall respond to OSHA recommendations for evaluation changes in accordance with requirements and timeframes established by the official transmittal of a special study or annual evaluation report containing such a recommendation.
(2) Missed Developmental Steps. When a developmental step is missed, the State shall immediately document the reasons in writing to the Region. If a State fails to submit a required supplement when the developmental step was scheduled for completion and has not documented the reasons and requested approval of a new completion date, the Region shall notify the State that a supplement is required within no more than 30 days or a written notification containing the following information:
(a) An explanation of why the step was not completed.
(b) A new date for completion of the step.
(c) A revised developmental schedule showing specific actions that the State proposes to take whenever the missed step would require a new timetable.
(d) A demonstration that the current operating program is substantial enough to contribute to the protection of employees in the State through the enforcement of standards. If a State does not meet its developmental step, the State must assure that it will still complete all developmental steps within the three year period.(1) If monitoring findings contained in a special study or annual evaluation report document the need for a major substantive change in a State plan, the report shall contain a specific recommendation establishing the requirements therefore and timeframe for submission of a plan supplement.
(2) A State shall respond to a recommendation for an evaluation plan change supplement by:
(a) Submission of a plan supplement or a timetable for completion of the change when necessary, with related documentation on the impact of the change on the State plan and its responsiveness to the Federal evaluation report or special study, or
(b) The State may show cause, in response to the request for an evaluation change supplement, why a supplement should not be required on the ground that the State program is meeting the requirements for an at least as effective program.a. Identical Changes. If the State change is identical to a corresponding OSHA policy or procedure, the State plan supplement, in addition to the general documentary requirements listed above shall include either a revised version of the Federal document reflecting the State's own statutory, regulatory or organizational structure, or a cover sheet describing how references in the Federal document correspond to the State's structure.3. Regional Office Review Procedures.
b. Different Changes. If the State change is substantively different from a corresponding OSHA policy or procedure, the State plan supplement, in addition to the general documentary requirements listed above, shall contain a listing of each significant difference (with page numbers). For each difference listed, the supplement shall include a rationale for the adoption of an alternative provision, with a statement on how the State plan change is at least as effective as the OSHA policy or procedure.
NOTE: Change Directives. For a plan supplement responding to changes consolidated in the FOM or OTM or other procedural directives, the State shall also ensure that the supplement indicates for each significant Federal change listed in the OSHA directive whether the State's plan change is identical or substantively different.
c. Other Changes. In addition to the general documentary requirements listed above, if the State change is one for which there is no OSHA counterpart, the State should coordinate preparation of the plan supplement with Regional Administrator to identify, what policy and procedures OSHA would apply in the same circumstances, and document that the new State policy is at least as effective as the applicable Federal policy. Where the State initiated change establishes a program for which there is no Federal parallel, all necessary and related legislation, regulations, and procedures must be submitted. Documentation must be provided as to how this program will interface with existing State activities and will not detract from the basic Federally-mandated program. The State shall propose, after consultation with the Region, performance measures for evaluation of major, new State-specific program activities when there is no other means of obtaining data for the evaluation.a. Because the failure to submit a plan supplement has an adverse effect on State plan administration and effectiveness, the Regional Administrator shall notify the State when a plan supplement is overdue and request the State to submit the supplement within a reasonable time period. Assistance should be offered and a timetable for corrective action and interim procedures to maintain program effectiveness developed. Upon continued refusal or failure of a State to submit a required plan supplement(s), the Regional Administrator shall submit a report to the Director of Federal-State Operations assessing the impact on State plan effectiveness and recommending appropriate action including the possible initiation of formal rejection-type proceedings; reinstitution of Federal enforcement; revocation of 18(e); and, initiation of plan withdrawal.4. National Office Review Procedures. The Director of Federal-State Operations shall:
b. Upon submission of a State plan supplement, the Regional Administrator shall direct a Regional Office line-by-line review. The Regional Administrator shall notify the State as soon as possible but no later than 6 months from receipt of the acceptability of the plan change, with a copy to the Directorate of Federal-state Operations. The Regional review shall:(1) Ensure that any independent State provisions and substantive differences from OSHA provisions have been identified and explained by the State, with appropriate reference to page numbers and sections of the relevant document.c. If the Region's initial review determines that clarification or supplementary information is necessary in order for the Region to make a recommendation, the Regional Administrator shall notify the State in writing of any additional requirements and establish a timeframe for their submission, generally not to exceed 30 days.
(2) Address whether the State change enables the State to maintain a program which is at least as effective as the OSHA program and should be approved by the Assistant Secretary.
d. Upon completion of the Region's review, the Regional Administrator shall:(1) Obtain State comments, as appropriate, regarding the preliminary determination on whether the State change enables the State to maintain a program which is at least as effective as the OSHA program.
(a) If the Regional Administrator concludes that the State policy or procedure does not appear to be at least as effective as the Federal, the State shall be afforded the opportunity to submit written comments, within 30 days of notification. The State's comments shall be included in the Region's submission to the National Office.
(b) The Regional Administrator shall consider the State's written comments in formulating a recommendation to the Assistant Secretary on whether the State change should be approved or rejected.
(2) Submit three copies of the State plan supplement and any State comments thereon to the Director of Federal-State Operations through the Office of Field Programs with a cover memorandum containing:
(a) The Region's assessment, as applicable, of whether each independent or different State provision in the plan supplement enables the State to maintain a program at least as effective as the OSHA program (include specific references to the plan as appropriate).
(b) The Region's overall determination on whether the State change enables the State to maintain a program which is at least as effective as OSHA's.
(c) A recommendation for approval or rejection of the plan supplement by the Assistant Secretary.
(3) Send a copy of the Region's comments and recommendations to the State.
NOTE: The Regional Administrator shall determine the acceptability of minor FPC's and State initiated changes that do not require a plan supplement. The Federal Program Change paragraph of an OSHA Instruction states whether a plan supplement is required for a Federal Program Change (FPC). The Regional Administrator may choose to submit minor FPC's and State initiated changes to the National Office for information purposes only. Documentation of minor changes shall be maintained by the State and Region in Appendix C.(5) of the revised State Plan document.a. Coordinate the National Office review of the State plan supplement and Regional recommendations.5. Approval of Plan Supplements,
b. Provide a copy of any different or independent State plan change to other National Office Directorates or Department of Labor agencies with a functional interest in the change and request their written comments, specifying that the office or agency has 30 days to respond. Resolve any differences of opinion on acceptability of the State change resulting from the National Office review.
c. As provided in 29 CFR Part 1902.11, determine whether public comment should be sought to assist in determining whether the Assistant Secretary should approve or reject the State change. The public comment requirements may be waived for any good cause which is consistent with applicable law, such as where the change was adopted by a State in accordance with the State's procedural requirements, including the opportunity for public participation. A public comment period is generally not required for a plan supplement, except where State policy differs significantly and its effectiveness is not clear. If a determination is made that public participation is necessary, a Federal Register notice will be published providing a reasonable period for submission of comments.
d. Advise the Regional Administrator in writing if the National Office review identifies deficiencies in the plan change supplement. The State shall be afforded an opportunity through the Regional Administrator to submit a written response, generally within 30 days, addressing any identified deficiencies by submitting a revised supplement or additional information, or a notice of intent to revise the supplement with a timetable.
e. Make a determination on whether to recommend the Assistant Secretary's approval or rejection of the State change upon completion of the National Office review, and consideration of any public comments and additional information or comments submitted by the State or Region. A decision on approval ordinarily shall be made within 6 months of receipt from the Region.a. Notification to State. The Director of Federal-State Operations shall notify the Regional Administrator in writing when a plan change supplement has been approved for publication in the Federal Register. The Regional Administrator shall in turn notify the State.6. Rejection of Plan Supplements. If National Office review, which may in appropriate cases include publication in the Federal Register of a request for public comment, results in the Assistant Secretary's determination that the State change should be rejected, rejection of the change in whole or part shall be initiated after due notice to the State through proceedings under 29 CFR Part 1902.17 et al. Because a major plan change has an impact on the effectiveness of a State plan, these proceedings could include or lead to the initiation of withdrawal of approval of the State plan itself or revocation of final approval. Refusal or failure of the State to submit a required plan supplement may result in a similar proceeding.
b. Federal Register Publication.(1) The only plan change supplements which as a rule will require publication in the Federal Register are those which relate to legislation, regulations, and procedures. Decisions on Federal Register publication and/or codification of other major plan change supplements will be made on a case-by-case basis.
(2) At least annually, the Director of Federal-State Operations shall prepare for the Assistant Secretary's signature and publication in the Federal Register a notice announcing the approval of any plan change supplements for a State in the areas noted in (1) which have been found to provide for a program which is at least as effective as OSHA's. An update to 29 CFR 1952, Changes to State plans, shall be incorporated under one of the following headings: Legislation; Regulations; Procedures; Organization; and Other.a. Notice of Hearing. The Assistant Secretary shall publish a notice in the Federal Register about the plan change supplement and provide an opportunity for a formal hearing and decision on possible rejection of the plan change (and/or revoking final approval or withdrawal of State plan approval in whole or in part). The State shall publish a similar notice.
b. Tentative Decision. On the basis of the whole record of any previous written comments received or any hearing held, the Assistant Secretary shall publish a tentative decision in the Federal Register either approving or rejecting the plan change (or State plan). Interested persons participating in the hearing shall have an opportunity to file exceptions to the tentative decision and objections to such exceptions.
c. Formal Decision. The Assistant Secretary shall then publish a formal decision in the Federal Register ruling upon each exception and objection filed.
|Directives - Table of Contents|
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