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Preemption

PREEMPTION

A doctrine based on thesupremacy clauseof the U.S. Constitution that holds that certain matters are of such a national, as opposed to local, character that federal laws preempt or take precedence over state laws. As such, a state may not pass a law inconsistent with the federal law.

A doctrine of state law that holds that a state law displaces a local law or regulation that is in the same field and is in conflict or inconsistent with the state law.

Article VI, Section 2, of the U.S. Constitution provides that the "… Constitution, and the Laws of the United States … shall be the supreme Law of the Land." This Supremacy Clause has come to mean that the national government, in exercising any of the powers enumerated in the Constitution, must prevail over any conflicting or inconsistent state exercise of power. The federal preemption doctrine is a judicial response to the conflict between federal and state legislation. When it is clearly established that a federal law preempts a state law, the state law must be declared invalid.

A state law may be struck down even when it does not explicitly conflict with federal law, if a court finds that Congress has legitimately occupied the field with federal legislation. Questions in this area require careful balancing of important state and federal interests. Problems arise when Congress fails to make its purpose explicit, which is often the case. The court must then draw inferences based on the presumed objectives of federal law and the supposed impact of related state action.

The federal right to regulate interstate commerce under the commerce clause of the U.S. Constitution has resulted in federal preemption of state labor laws. Likewise, the Supreme Court, in Burbank v. Lockheed Air Terminal, 411 U.S. 624, 93 S. Ct. 1854, 36 L. Ed. 2d 547 (1973), declared that state and local laws that interfere with comprehensive federal environmental laws and regulations are invalid.

In California v. Federal Energy Regulatory Commission, 495 U.S. 490, 110 S. Ct. 2024, 109 L. Ed. 2d 474 (1990), the Supreme Court held that state regulations imposing minimum flow rates on rivers used to generate hydroelectric power were preempted by the Federal Power Act (16 U.S.C.A. § 791 et seq. [1933]). In Mississippi Power and Light Company v. Mississippi ex rel. Moore, 487 U.S. 354, 108 S. Ct. 2428, 101 L. Ed. 2d 322 (1988), the Court held that the Federal Energy Regulatory Commission's regulations preempted a state's authority to set electric power rates.

At the state level, preemption occurs when a state statute conflicts with a local ordinance on the same subject matter. Preemption within the states varies with individual state constitutions, provisions for the powers of political subdivisions, and the decisions of state courts. For example, if a state legislature enacts gun control legislation and the intent of the legislation is to occupy the field of gun control, then a municipality is preempted from enacting its own gun control ordinance.

The issue of preemption has dominated litigation over the right of states to require insurance companies and Health Maintenance Organizations (HMOs) to accept "any willing [healthcare] provider" rather than to force consumers to stay within the health providers' exclusive networks. HMOs and insurance companies have argued that the 1974 federal employee retirement income security act (ERISA) preempted these state laws. ERISA is an extremely complex and technical set of provisions that seek to protect employee benefit programs, which include pension plans and healthcare plans. Healthcare providers have pointed to the comprehensive nature of ERISA as demonstrating the intent of Congress to maintain a uniform national system. Therefore, they argued, state laws must be preempted to affect this purpose.

The Supreme Court rejected the ERISA preemption argument in two cases involving health insurance. In Moran v. Rush Prudential HMO, Inc., 536 U.S. 355, 122 S. Ct. 2151, 153 L. Ed. 2d 375 (2002), the Supreme Court in a 5–4 decision upheld an Illinois law that required HMOs to provide independent review of disputes between the primary care physician and the HMO. In Kentucky Association of Health Plans, Inc. v. Miller, 538 U.S. 329, 123 S. Ct. 1471, 155 L. Ed. 2d 468 (2003), the Court tackled the "any willing provider rule." In a unanimous decision the Court held that Kentucky laws were not preempted by ERISA. The Court concluded that the laws did not deal with employee benefit plans as defined by ERISA but instead were insurance regulations. This was an important distinction because state insurance regulations are not preempted by ERISA.

further readings

Hoenig, Michael. 2002. "Supreme Court Teaches Preemption Lessons." New York Law Journal 228 (December).

"Interstate Commerce—Preemption." 2002. New Jersey Law Journal 169 (July).

Walsh, Edward. 2003. "Supreme Court Sides with States on HMOs: Groups Can Be Opened to All Providers." Washington Post (April 3).

cross-references

Federalism; States' Rights.

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preemption

pre·emp·tion / prēˈempshən/ • n. 1. the purchase of goods or shares by one person or party before the opportunity is offered to others: the commission had the right of preemption. ∎ hist. the right to purchase public land in this way. 2. the action of preempting or forestalling, esp. of making a preemptive attack: damaging retaliation for any attempt at preemption. ∎  the interruption or replacement of a scheduled radio or television program.

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Preemption

PREEMPTION

A doctrine based on the Supremacy Clause of the U.S. Constitution that holds that certain matters are of such a national, as opposed to local, character that federal laws preempt or take precedence over state laws. As such, a state may not pass a law inconsistent with the federal law. Alternatively, a doctrine of state law that holds that a state law displaces a local law or regulation that is in the same field and is in conflict or inconsistent with the state law.

Chamber of Commerce v. Brown

The U.S. SUPREME COURT in June 2008 ruled that a federal labor law preempted a California statute that prohibited employers from using state money to influence unionization. The law was passed in 2000 by California and had been upheld by the Ninth Circuit Court of Appeals sitting en banc . With backing from the administration of GEORGE W. BUSH, business groups and the U.S. Chamber OF Commerce challenged the law before the Court, which reversed the Ninth Circuit and invalidated the statute.

The National Labor Relations Act (NLRA) does not contain an explicit provision stating that the law preempts conflicting state law. However, the Supreme Court has held that the NLRA implicitly contains two types of preemption that are necessary to implement federal labor policy. The first type based on the Court's decision in San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S. Ct. 773, 3 L. Ed. 2d 775 (1959). This preemption, known as Garmon preemption, “is intended to preclude state interference with the National Labor Relations Board's interpretation and active enforcement of the ‘integrated scheme of regulation’ established by the NLRA.” Under this standard, a state may not regulate activity that the NRLA “protects, prohibits, or arguably protects or prohibits.”

The second type of preemption under the NLRA stems from the Court's decision in Machinists v. Wisconsin Employment Relations Commission, 427 U.S. 132, 96 S. Ct. 2548, 49 L. Ed. 2d 396 (1976). Machinists preemption prohibits either the National Labor Relations Board (NLRB) or the states from regulating conduct that Congress intended to be unregulated because this conduct was left to be “controlled by the free play of economic forces.” The basis of this type of preemption is that Congress sought a balance of concerns regarding union organization, collective bargaining, and labor disputes.

The NLRA, 29 U.S.C. 157-158, gives employees the right to organize, to bargain collectively, and to engage in concerted activity for their mutual aid and protection. Another provision prohibits an employer from interfering with, restraining, or coercing employees in exercising their rights under the NLRA. In 1941, the Court addressed an issue regarding the speech rights of an employer. In NLRB v. Virginia Electric & Power Co., 314 U.S. 469, 62 S. Ct. 344, 86 L. Ed. 2d 348 (1941), the Court ruled that nothing in the NLRA prevents an employer from “expressing its view on labor policies or problems,” unless the employer's speech amounts to coercion under the terms of the statute.

Congress further expanded on the speech rights of both employers and unions in a 1947 amendment to the NLRA. Under this amendment:

The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice … if such expression contains no threat of reprisal or force or promise of benefit.

In September 2000, the California Assembly passed A.B. 1889 (codified at Cal. Gov't Code 7 sect; 16645-16649), which was designed to protect an employee's right to choose whether to be represented by a labor union. Under this statute, a private employer that receives state funds could not use those funds to “assist, promote, or deter union organizing.” Another provision barred a “private employer receiving state funds in excess [of $10,000] in any calendar year on account of its participation in a state fund” to use those funds influence employees in their decision to organize. The statute defined the phrase “assist, promote, or deter union organizing” broadly to include “any attempt by an employer to influence the decision of its employees in this state or those of its subcontractor regarding … [w]hether to support or oppose a labor organization that represents or seeks to represent those employees … [or] [w]hether to become a member of any labor organization.” The statute also prohibited other related actions by the employer.

In 2002, the U.S. Chamber of Commerce and a number of other organization brought an action against several state officials in California. The AFL-CIO intervened in the case. In September 2002, the U.S. District Court for the Central District of California issued a partial summary judgment in favor of the Chamber of Commerce, holding that the NLRA preempted the state statute under Machinists. The district court enjoined the state and the AFL-CIO from taking any actions against an employer subject to the NLRA. Chamber of Commerce v. Lockyer, 225 F. Supp. 2d 1199 (C.D. Cal. 2002).

Although a divided panel of the Ninth Circuit Court of Appeals affirmed the district court's judgment, the Ninth Circuit sitting en banc reversed the decision. The appellate court determined that though the state of California acted as a regulator in enacting the statutory provisions, Congress had not intended for the NLRA to prevent states from imposing restrictions on the use of their own funds. Accordingly, the court reversed the district court's ruling. Chamber of Commerce v. Lockyer, 463 F. 3d 1076 (9th Cir. 2006).

At oral argument, the justices appeared to be sharply divided. Counsel for the Chamber of Commerce argued that the California law directly conflicted with the goals of the NLRA and national labor policy. The justices asked several seemingly hostile questions in response to this argument, with many of these questions coming from Justice Ruth Bader Ginsburg. Nevertheless, seven of the justices ruled in favor of the Chamber in a judgment that reversed the Ninth Circuit's decision.

In an opinion by Justice John Paul S Tevens, the Court determined that the pertinent sections of the California statute were preempted under Machinists because the statute attempted to regulate a “zone protected and reserved for market freedom.” The Court noted that the NLRA contains provisions that are designed to protect non-coercive speech by both employers and employees regarding the organization of labor. California's attempt to regulate employer speech in the manner that it did contradicted the goals of the NLRA's provision that allows free debate on unionization. Therefore, the Court held in favor of the Chamber of Commerce. Chamber of Commerce v. Brown, No. 06-939, 2008 WL 2445420 (June 19, 2008).

Justice Stephen Breyer, joined by Ginsburg, dissented. According to Breyer, the California statute imposed a spending limitation that did not amount to a regulation that the NLRA preempted. He argued that the Court should have vacated the Ninth Circuit's decision to allow the lower court to resolve more questions about the application of the California law.

Riegel v. Medtronic, Inc.

Congress has charged the Foodanddrug Administration (FDA) with regulating, among other things, the marketing of prescription drugs and medical devices. The Federal Food, Drug, and Cosmetic Act (FDCA) has long required FDA approval of new drugs, but the states were left with the responsibility of regulating medical devices. In 1970s, in the wake of serious injuries and death caused by the Dalkon Shield, an intrauterine birth control device, pressure grew to have the federal government regulate medical devices. Congress responded by passing the Medical Device Amendments of 1976 (MDA), 21 U.S.C. §§ 360c et seq. The MDA directed the FDA to construct a new regulatory regime, which included the classification of devices into three classes. The first two classes, which include elastic bandages and wheel chairs, did not require much oversight. Most attention was given to Class III devices, which include replacement heart valves, implanted heart pacemakers and heart stents. Before Class III devices can be sold they must gain premarket approval from the FDA. One part of the MDA preempts the states from regulating medical devices if the requirements are different from, or in addition to, any federal requirement contained in the MDA. In Riegel v. Medtronic, Inc.,—U.S.—, 128 S. Ct. 999, 169 L. Ed. 2d 892 (2008), the U.S. Supreme Court ruled that the MDA preemption requirement means that a patient cannot sue the maker of medical devices for alleged defects in the product using state common-law grounds of negligence, strict liability , or breach of an implied warranty of fitness.

Charles Riegel underwent underwent coronary angioplasty in 1996, after suffering a heart attack. His doctor inserted Medtronic's Evergreen Balloon Catheter (a Class IIII device) into Riegel's diseased and heavily calcified right artery in an attempt to clear the blockage in the artery. Medtronic warned on the label that the catheter should not be used on patient's with calcified arteries. It also warned against inflating the catheter beyond 8 atmospheres of burst pressure. Despite these warnings the doctor inflated the catheter five times to a pressure of 10 atmospheres. On its fifth inflation the catheter ruptured. Riegel developed a heart block, was put on life support, and underwent emergency coronary bypass surgery. He and his wife filed a lawsuit in New York federal district court in 1999, alleging that the design, labeling, and manufacturing of Medtronic's catheter violated New York common law and that these defects caused Riegel to suffer severe and permanent injuries. The district court ruled that the MDA preempted the common law causes of action raised in the complaint. These included strict liability, implied warranty of fitness, and negligence in the design, testing, inspection, labeling, distribution, marketing and sale of the Evergreen catheter. The judge found that none of the Riegels' claims were based on the theory that Medtronic violated federal law. The Second Circuit Court of Appeals upheld the dismissal of the lawsuit based on federal preemption.

The Supreme Court, in an 8–1 decision, upheld the lower courts and held that the MDA preempts state common-law damages lawsuits. Justice Antonin Scalia, writing for the majority, reviewed the FDA's premarket approval process. He noted that it is a “rigorous” process, with the manufacturer submitting a multi-volume application that covers all aspects of the medical device. An FDA may refer the application to a panel of outside experts and may request additional information from the manufacturer. The agency spends an average of 1,200 hours reviewing each application. After it completes its review it may grant or deny premarket approval. If the application is denied, the FDA may send a letter that states the device could be approved if the applicant submitted specified information or agreed to certain conditions and restrictions. After premarket approval, the devices are subject to reporting requirements. The Medtronic catheter had received premarket approval in 1994. When changes were made in the labeling of the device, the FDA granted supplemental approvals in 1995 and 1996.

Based on this premarket approval process, Justice Scalia concluded that the federal government had established requirements applicable to Medtronic's catheter. This was important because the MDA preempts only state requirements that are different from, or in addition to, any federal requirements. The question then turned to whether the Riegels' common-law claims were based on such New York requirements relating to safety and effectiveness. Justice Scalia noted that the Court had ruled that federal statutes governing insecticides and cigarette smoking preempted state common-law actions. It made no difference if a state tort law or a state law regulating medical devices was employed, as the effect would be the same: the disruption of the federal regulatory scheme. The Riegels' had argued that the duties underlying negligence, strict liability, and implied warranty were not preempted because they they were not requirements “with respect to devices.” Justice Scalia rejected this contention, finding nothing in the MDA preemption provision to suggest that “the pre-empted state requirement must apply only to the relevant device, or only to medical devices and not to all products and all actions in general.”

Finally, Justice Scalia held that not all state requirements are preempted under the MDA. The act did not prevent a state “from providing a damages remedy for claims premised on a violation of FDA regulations.” The state duties “in such a case ‘parallel,’ rather than add to, federal requirements.”

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Preemption

PREEMPTION

The supremacy clause of the Constitution (Article VI, clause 2) requires that inconsistent state laws yield to valid federal laws. Preemption is the term applied to describe invalidation of state laws by superior federal law.

Strictly speaking, the issue of preemption is not one of constitutional law. The issue is not what Congress has the power to do, but what Congress has done. Where Congress has made an articulate decision whether particular state laws should survive a new scheme of federal regulation, the issue is settled. For example, in enacting minimum federal standards for automobile pollution control equipment in 1967, Congress prohibited states from enforcing more restrictive standards but made an exception for the State of California. There has been no need for litigation to mark the contours of preemption in that context. Insofar as there is a "doctrine" of preemption, it concerns the treatment of preemption by federal laws where Congress has ignored the issue.

Since preemption cases theoretically turn on construction of federal statutes to determine whether Congress intended to preempt state laws, there are limits to generalizations that can be drawn from the decisions. Each case construes a federal statute with a distinct regulatory structure and legislative history. It is particularly difficult to classify the simplest form of preemption cases—those where the claim is made that the terms of federal and state law are flatly inconsistent. Federal law may, for example, give express permission to engage in conduct prohibited by state law. An early famous case of this type was gibbons v. ogden (1824).

The most complex issues of preemption arise where it is concededly possible to comply with mandates of both state and federal law. The question then arises whether Congress intended to "occupy the field," or whether the challenged state law's enforcement would interfere inordinately with the policies of the federal law. State law may provide additional sanctions for conduct prohibited by federal law. (In California v. Zook, 1949, the Court sustained a state law that punished interstate motor transport operating without a federal permit.) State law may impose more stringent regulations than federal law. (In Napier v. Atlantic Coast Line R.R., 1926, the Court held that a state law requiring railroad safety equipment was preempted by a federal law that required less equipment.) Finally, it may be argued that state law is, in some general way, inconsistent with the purposes of federal law. (In New York Telephone Co. v. New York State Department of Labor, 1979, the Court sustained state payment of unemployment compensation benefits to strikers as not inconsistent with the policy of free collective bargaining under federal labor law.)

The Court has announced general tests for determining whether Congress has "occupied the field." An often-quoted summary of the standards for finding congressional intent to preempt state law is contained in Rice v. Santa Fe Elevator Corp. (1947). "The scheme of federal regulation may be so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it.… Or the Act of Congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.… Or the state policy may produce a result inconsistent with the objective of the federal statute." These standards are peculiarly devoid of content, as the Court admitted in the sentence following those just quoted: "It is often a perplexing question whether Congress has precluded state action or by the choice of selective regulatory measures has left the police power of the States undisturbed except as the state and federal regulations collide."

The lack of any pattern to the preemption cases can be explained in that each case seeks to ascertain congressional intent in a unique context. Since, however, contentious preemption questions arise precisely because Congress has ignored the existence of related state laws, the "intent of Congress" is a fiction that fails to describe the Court's decision process. The controlling factors in judicial decision are similar to those that would have confronted the intelligent legislator who had grappled with them. The judges' social values, views as to the legislative wisdom of the federal and state laws, and general views of the federal system may be as decisive as technical consideration of how well the federal and state schemes would mesh.

In many cases, there are potential issues of constitutional validity of the challenged state law in addition to the preemption question. Some preemption decisions can be explained as a part of the Court's general practice of avoiding unnecessary constitutional questions. Often, the preemption question is decided, articulately or sub silentio, by the same criteria that would have governed the avoided constitutional question. The preemption doctrine may be preferred by the Court because the judicial decision striking down a state law is tentative, and congressional attention is invited to the issue. If Congress does nothing, the issue is avoided. If Congress makes an articulate choice to withdraw the preemption barrier, the inescapable constitutional question benefits from the additional data supplied by congressional decision. A final attraction of the preemption rationale, beyond the tentativeness of a preemption decision, may be that each decision can be truly ad hoc, resting on a fictional finding of congressional intent to preempt that governs only the particular federal statutory scheme before the Court.

William Cohen
(1986)

Bibliography

Cohen, William 1982 Congressional Power to Define State Power to Regulate Commerce: Consent and Pre-emption. Pages 523–547 in Terrance Sandalow and Eric Stein, eds., Courts and Free Markets: Perspectives from the United States and Europe. Oxford: Clarendon Press.

Cramtom, Roger 1956 Pennsylvania v. Nelson: A Case Study in Federal Preemption. University of Chicago Law Review 26:85–108.

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Preemption

PREEMPTION

A doctrine based on the Supremacy Clause of the U.S. Constitution that holds that certain matters are of such a national, as opposed to local, character that federal laws preempt or take precedence over state laws. As such, a state may not pass a law inconsistent with the federal law.

A doctrine of state law that holds that a state law displaces a local law or regulation that is in the same field and is in conflict or inconsistent with the state law.

Bates v. Dow Agrosciences LLC

Congress may preempt states from addressing certain legal issues if it passes laws that clearly intend such a result. Legal controversies have developed over whether a federal law, while specifically prohibiting states from regulating certain aspects of a product, permits state negligence and product liability lawsuits that address other issues surrounding the use of the product. Such was the case in Bates v. Dow Agrosciences LLC, __U.S. __, 125 S.Ct. 1788, __ L.Ed.2d __ (2005), where the federal government and pesticide producers claimed that a federal insecticide law's labeling provisions barred farmers from suing the producer in state court for the damages caused to their crops by a new pesticide. The U.S. Supreme Court rejected this argument, ruling that the state tort law claims did not directly affect the labeling of the pesticide and therefore that they were not preempted by the federal law.

In 2000, Dow Agrosciences marketed a new pesticide called "Strongarm." Twenty-nine Texas peanut farmers bought and applied Strongarm to their fields, with adverse results. The new pesticide stunted the growth of the peanuts and failed to control weeds, allegedly because it produced such a result in soil with pH (acidity) levels of 7.0 or greater. The farmers' fields had pH levels 7.2 or higher, which were typical readings for west Texas. The farmers reported these problems to Dow, and the company sent experts to inspect the peanut crops.

Dow, which had registered Strongarm with the Environmental Protection Agency (EPA) in 2000 under provisions of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C.A. §136 et seq., received approval from the EPA in 2001 to issue a special label for use in New Mexico, Oklahoma, and Texas (the three states in which peanut farmers had suffered crop damage) that warned users not to apply Strongarm to soils with pH levels of 7.2 or greater. After negotiations between Dow and the farmers failed to produce a financial settlement, the farmers announced that they would sue Dow in state court.

Dow immediately filed an action in Texas federal district court , asking the court to declare such state tort lawsuits to be preempted by FIFRA. The federal court granted the request and issued a declaratory judgment stating that all state tort actions were preempted by §136v(b) of FIFRA, which provides that states "shall not impose or continue in effect any requirements for labeling or packaging in addition to or different for those required under this subchapter." The U.S. Court of Appeals for the Fifth Circuit affirmed this decision, agreeing that §136v(b) applied because if the farmers were to prevail with their state law claims, Dow would be induced to alter the Strongarm label. Although this decision was consistent with a majority of the circuit courts, it conflicted with the decisions of other courts and the views of the EPA in a brief filed with the California Supreme Court in 2000. However, the EPA now supported Dow's position in the Texas litigation. The Supreme Court granted review to resolve the preemption claim under FIFRA.

The Supreme Court, in a 7-2 decision, reversed the Fifth Circuit, holding that the state court claims were not preempted by the FIFRA provision. Justice John Paul Stevens, in his majority opinion, reviewed the history of pesticide regulation, noting that the original version of FIFRA had been enacted in 1947. It provided labeling standards, but it also required the government to determine that the pesticide worked as claimed and that it was safe. FIFRA was amended in 1972, and its administration was transferred from the Department of Agriculture to the EPA. The law was transformed into a comprehensive regulatory statute that focused on environmental safety. In 1978, the EPA succeeded in having the law amended to eliminate the need for it to determine a pesticide's efficacy as part of the registration process. Therefore, when the EPA approved the original label for Strongarm in 2000, it did not certify that the product effectively controlled weeds or that it would not damage crops or cause other property damage.

Justice Stevens reviewed the language of §136v(b) and concluded that the prohibitions in this section applied only to "requirements." A state law claim would be preempted only if it imposed a requirement "for labeling or packaging" that was "in addition to or different from those required under this subchapter." Stevens found that state negligence and product liability claims did not impose requirements on the packaging and labeling of products. These claims held manufacturers to design reasonably safe products, to use due care in testing the products, and to stand behind their express warranties.

In addition, the Fifth Circuit had mistakenly endorsed an "effects-based test" for §136v(b). Perhaps Dow would change its label if it were found liable for the crop losses, but a "requirement is a rule of law that must be obeyed; an event, such as a jury verdict, that merely motivates an optional decision is not a requirement." Justice Stevens rejected the arguments of Dow and the EPA that a failure to preempt state tort claims would give juries in all states the ability to create a "crazy-quilt of anti-misbranding requirements." If Congress had wanted to prevent all state tort pesticide claims, it would have stated its intent clearly. Its failure to do so meant that in "areas of traditional state regulation" the states may apply its laws. In this case, Justice Stevens believed that Congress had not intended to use an "obscure" labeling provision to "give pesticide manufacturers virtual immunity from certain forms of tort liability."

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