HB758: Littering; defines and provides for penalties based on gravity of offense.

HOUSE BILL NO. 758
Offered January 11, 2012
Prefiled January 11, 2012
A BILL to amend and reenact §§ 10.1-200.2 and 46.2-208 of the Code of Virginia; to amend the Code of Virginia by adding in Chapter 6 of Title 33.1 an article numbered 2, consisting of sections numbered 33.1-350.1 through 33.1-350.5; and to repeal §§ 33.1-346 and 33.1-346.1 of the Code of Virginia, relating to littering; penalties.
Patron-- Hodges

Committee Referral Pending

Be it enacted by the General Assembly of Virginia:

1.  That §§ 10.1-200.2 and 46.2-208 of the Code of Virginia are amended and reenacted and that the Code of Virginia is amended by adding in Chapter 6 of Title 33.1 an article numbered 2, consisting of sections numbered 33.1-350.1 through 33.1-350.5, as follows:

§ 10.1-200.2. Littering in state parks; civil penalty.

No person shall improperly dispose of litter, as defined in § 10.1-1414, within a Virginia state park. In addition to any penalties that may be assessed under § 10.1-104 or § 33.1-346 33.1-350.3, any person in violation of this section may be assessed a civil penalty not to exceed $250. All civil penalties imposed under this section shall be deposited in the Conservation Resources Fund.

Article 2.
Littering.

§ 33.1-350.1. Definitions.

As used in this article, unless the context requires a different meaning:

"Aggravated criminal littering" means littering in any amount exceeding 10 pounds or 15 cubic feet.

"Commercial purpose" means the discarding of litter by a business, corporation, association, partnership, sole proprietorship, or any other entity conducting business for economic gain or by an employee or agent of such entity.

"Criminal littering" means littering in an amount more than five pounds or seven and one-half cubic feet and less than or equal to 10 pounds or 15 cubic feet.

"Garbage" means putrescible animal or vegetable waste resulting from the handling, preparation, cooking, or consumption of food.

"Litter" means garbage, refuse, rubbish, yard waste, or any other waste material, including a tobacco product and any other item primarily designed to hold or filter a tobacco product while the tobacco is being smoked.

"Mitigated criminal littering" means littering in an amount less than or equal to five pounds or seven and one-half cubic feet.

"Refuse" means all putrescible and nonputrescible solid waste.

"Rubbish" means nonputrescible solid waste consisting of both combustible and noncombustible waste.

"Yard waste" means grass, leaves, prunings, brush and shrubs, garden materials, Christmas trees, and tree limbs up to four inches in diameter.

§ 33.1-350.2. Littering.

A. A person commits littering who:

1. Knowingly places, drops, or throws litter on any public or private property or in any non-permitted dump as prohibited by subsections G through Q of § 10.1-1408.1;

2. Negligently places or throws glass or other dangerous substances into or adjacent to water to which the public has access for swimming or wading or on or within 50 feet of a public highway; or

3. Negligently discharges sewage, minerals, oil products, or litter into any public waters or lakes within the Commonwealth.

B. Whenever litter is placed, dropped, or thrown from any motor vehicle, boat, airplane, or other conveyance in violation of this section, the trier of fact may, in its discretion and in consideration of the totality of the circumstances, infer that the operator of the conveyance has committed littering. Any motor vehicle that transports litter or any material likely to drop, sift, leak, or otherwise escape onto the highways shall be required to secure or cover such material in accordance with § 46.2-1156.

C. Whenever litter discovered on public or private property is found to contain any article or articles, including but not limited to letters, bills, publications, or other writings, that display the name of a person thereon in such a manner as to indicate that the article belongs or belonged to such person, the trier of fact may, in its discretion and in consideration of the totality of the circumstances, infer that such person has committed littering.

§ 33.1-350.3. Penalties.

A. Any person found guilty of mitigated criminal littering is guilty of a Class 4 misdemeanor.

1. A person charged with mitigated criminal littering may, in lieu of appearance in court, pay a fine of $50 and applicable court costs to the clerk of the court that has jurisdiction over such offense within the county, city, or town in which the offense charged is alleged to have been committed. A person paying in this manner is not subject to the provisions of subdivision 2.

2. In addition to the penalties established in this subsection, the court shall require a person convicted under this subsection to remove litter from the state or local highway system, public playgrounds, public parks, or other appropriate public locations for not more than 40 hours.

B. Any person found guilty of criminal littering is guilty of a Class 3 misdemeanor. The court shall require a person convicted under this subsection to remove litter from the state or local highway system, public playgrounds, public parks, or other appropriate public locations for not more than 80 hours.

C. 1. Any person found guilty of aggravated criminal littering is guilty of a Class 2 misdemeanor.

2. The third conviction of aggravated criminal littering shall constitute a Class 1 misdemeanor.

D. Any person found guilty of aggravated criminal littering in an amount exceeding 1,000 pounds or 200 cubic feet or in any amount for any commercial purpose is guilty of a Class 6 felony.

E. The litter removal requirements described in subsections A and B shall be satisfied if, within 90 days of the date of conviction, a signed statement is received by the clerk of the court where the conviction occurred containing the person's name, docket number, and hearing date; listing the dates of litter removal and the number of hours, locations, and approximate amount of litter collected on each date; and stating that the person has met or exceeded the total hours of litter removal ordered by the court. Any person subject to military orders that direct him to leave the area may request an extension of the 90-day period.

The court may, in its discretion, require a person convicted under this section to remove any substance listed under § 33.1-350.1 that was dropped, placed, or discharged by the person and restore the property or waters damaged by the littering to its former condition at the person's expense.

§ 33.1-350.4. Authority of local governing bodies.

A. The governing bodies of counties, cities, and towns are hereby authorized to adopt ordinances for litter control, including the placing, dropping, throwing, collection, and storage of garbage, litter, refuse, and rubbish on public or private property. The definitions for ?commercial purpose,? ?garbage,? ?litter,? ?refuse,? and ?rubbish,? as defined in § 33.1-350.1, may be included by reference in any such ordinance. The governing bodies of counties, cities, and towns are authorized to include in any such ordinance that a violation occurs if a person:

1. Knowingly places, drops, or throws litter on any public or private property or a non-permitted dump as prohibited by subsections G through Q of § 10.1-1408.1;

2. Negligently places or throws glass or other dangerous substances into or adjacent to water to which the public has access for swimming or wading or on or within 50 feet of a public highway; or

3. Negligently discharges sewage, minerals, oil products, or litter into any public waters or lakes within the Commonwealth.

Penalties for violations of any such ordinance shall be at least as stringent as the provisions of § 33.1-350.3.

B. 1. Any ordinance adopted pursuant to subsection A, may grant authority for the governing bodies of counties, cities, and towns to require property owners to conform their property to such ordinance by removal of garbage, litter, refuse, or rubbish. The locality shall send a statement to the owner itemizing the cost of the removal. If the owner fails to reimburse the county, city, or town for the cost of the removal within 60 days, the statement shall constitute a lien upon the property. The statement shall constitute a lien upon the property as of the date the notice is filed and shall have priority from the date of the filing of notice, but shall not affect, or have priority over, any valid lien, right, or interest in the property duly recorded, or duly perfected by filing, prior to the filing of the notice and shall not have priority over any real estate tax liens, whether attaching on the property before or after the filing of the notice.

2. If such property owner is aggrieved by the amount of the lien filed, such owner may submit the matter to the appropriate circuit court in which the property is located to determine the appropriate amount of the lien.

3. The lien provided in this subsection shall be entered in the records of the register of deeds of the county, city, or town in which the property lies. Such lien shall be satisfied to the extent of the value of the consideration received at the time of the transfer of ownership, and if the lien is not fully satisfied at the time of transfer, it shall remain a lien upon the property until it is fully satisfied.

C. Each ordinance adopted in accordance with subsection A, or a complete summary of the ordinance, shall be published after its final passage in a newspaper of general circulation in the county, city, or town. No such ordinance shall take effect until the publication.

D. Any violation of the provisions or regulations adopted pursuant to subsection A shall be punished by imposing a monetary penalty in accordance with the provisions of the respective county, city, or town's governing body.

§ 33.1-350.5. Enforcement of article.

All law-enforcement agencies, officers, and officials of the Commonwealth or any political subdivision thereof or any enforcement agency, officer, or official of any commission or authority of the Commonwealth or any political subdivision thereof may enforce compliance with this article.

§ 46.2-208. Records of Department; when open for inspection; release of privileged information.

A. All records in the office of the Department containing the specific classes of information outlined below shall be considered privileged records:

1. Personal information, including all data defined as "personal information" in § 2.2-3801;

2. Driver information, including all data that relates to driver's license status and driver activity; and

3. Vehicle information, including all descriptive vehicle data and title, registration, and vehicle activity data.

B. The Commissioner shall release such information only under the following conditions:

1. Notwithstanding other provisions of this section, medical data included in personal data shall be released only to a physician, physician assistant, or nurse practitioner as provided in § 46.2-322.

2. Insurance data may be released as specified in §§ 46.2-372, 46.2-380, and 46.2-706.

3. Notwithstanding other provisions of this section, information disclosed or furnished shall be assessed a fee as specified in § 46.2-214.

4. When the person requesting the information is (i) the subject of the information, (ii) the parent or guardian of the subject of the information, (iii) the authorized representative of the subject of the information, or (iv) the owner of the vehicle that is the subject of the information, the Commissioner shall provide him with the requested information and a complete explanation of it. Requests for such information need not be made in writing or in person and may be made orally or by telephone, provided that the Department is satisfied that there is adequate verification of the requester's identity. When so requested in writing by (a) the subject of the information, (b) the parent or guardian of the subject of the information, (c) the authorized representative of the subject of the information, or (d) the owner of the vehicle that is the subject of the information, the Commissioner shall verify and, if necessary, correct the personal information provided and furnish driver and vehicle information in the form of an abstract of the record.

5. On the written request of any insurance carrier, surety, or representative of an insurance carrier or surety, the Commissioner shall furnish such insurance carrier, surety, or representative an abstract of the record of any person subject to the provisions of this title. The abstract shall include any record of any conviction of a violation of any provision of any statute or ordinance relating to the operation or ownership of a motor vehicle or of any injury or damage in which he was involved and a report of which is required by § 46.2-372. No such report of any conviction or accident shall be made after 60 months from the date of the conviction or accident unless the Commissioner or court used the conviction or accident as a reason for the suspension or revocation of a driver's license or driving privilege, in which case the revocation or suspension and any conviction or accident pertaining thereto shall not be reported after 60 months from the date that the driver's license or driving privilege has been reinstated. This abstract shall not be admissible in evidence in any court proceedings.

6. On the written request of any business organization or its agent, in the conduct of its business, the Commissioner shall compare personal information supplied by the business organization or agent with that contained in the Department's records and, when the information supplied by the business organization or agent is different from that contained in the Department's records, provide the business organization or agent with correct information as contained in the Department's records. Personal information provided under this subdivision shall be used solely for the purpose of pursuing remedies that require locating an individual.

7. The Commissioner shall provide vehicle information to any business organization or agent on such business' or agent's written request. Disclosures made under this subdivision shall not include any personal information and shall not be subject to the limitations contained in subdivision 6 of this subsection.

8. On the written request of any motor vehicle rental or leasing company or its designated agent, the Commissioner shall (i) compare personal information supplied by the company or agent with that contained in the Department's records and, when the information supplied by the company or agent is different from that contained in the Department's records, provide the company or agent with correct information as contained in the Department's records and (ii) provide the company or agent with driver information in the form of an abstract of any person subject to the provisions of this title. Such abstract shall include any record of any conviction of a violation of any provision of any statute or ordinance relating to the operation or ownership of a motor vehicle or of any injury or damage in which the subject of the abstract was involved and a report of which is required by § 46.2-372. No such abstract shall include any record of any conviction or accident more than 60 months after the date of such conviction or accident unless the Commissioner or court used the conviction or accident as a reason for the suspension or revocation of a driver's license or driving privilege, in which case the revocation or suspension and any conviction or accident pertaining thereto shall cease to be included in such abstract after 60 months from the date on which the driver's license or driving privilege was reinstated. No abstract released under this subdivision shall be admissible in evidence in any court proceedings.

9. On the request of any federal, state, or local governmental entity, local government group self-insurance pool, law-enforcement officer, attorney for the Commonwealth, court, or the authorized agent of any of the foregoing, the Commissioner shall (i) compare personal information supplied by the governmental entity, local government group self-insurance pool, law-enforcement officer, attorney for the Commonwealth, court, or the authorized agent of any of the foregoing, with that contained in the Department's records and, when the information supplied by the governmental entity, local government group self-insurance pool, law-enforcement officer, attorney for the Commonwealth, court, or the authorized agent of any of the foregoing, is different from that contained in the Department's records, provide the governmental entity, local government group self-insurance pool, law-enforcement officer, attorney for the Commonwealth, court, or the authorized agent of any of the foregoing, with correct information as contained in the Department's records and (ii) provide driver and vehicle information in the form of an abstract of the record showing all convictions, accidents, driver's license suspensions or revocations, and other appropriate information as the governmental entity, local government group self-insurance pool, law-enforcement officer, attorney for the Commonwealth, court, or the authorized agent of any of the foregoing, may require in order to carry out its official functions. The abstract shall be provided free of charge.

10. On request of the driver licensing authority in any other state or foreign country, the Commissioner shall provide whatever classes of information the requesting authority shall require in order to carry out its official functions. The information shall be provided free of charge.

11. On the written request of any employer, prospective employer, or authorized agent of either, and with the written consent of the individual concerned, the Commissioner shall (i) compare personal information supplied by the employer, prospective employer, or agent with that contained in the Department's records and, when the information supplied by the employer, prospective employer, or agent is different from that contained in the Department's records, provide the employer, prospective employer, or agent with correct information as contained in the Department's records and (ii) provide the employer, prospective employer, or agent with driver information in the form of an abstract of an individual's record showing all convictions, accidents, driver's license suspensions or revocations, and any type of driver's license that the individual currently possesses, provided that the individual's position or the position that the individual is being considered for involves the operation of a motor vehicle.

12. On the written request of any member of or applicant for membership in a volunteer fire company or volunteer rescue squad, the Commissioner shall (i) compare personal information supplied by the volunteer fire company or volunteer rescue squad with that contained in the Department's records and, when the information supplied by the volunteer fire company or volunteer rescue squad is different from that contained in the Department's records, provide the volunteer fire company or volunteer rescue squad with correct information as contained in the Department's records and (ii) provide driver information in the form of an abstract of the member's or applicant's record showing all convictions, accidents, license suspensions or revocations, and any type of driver's license that the individual currently possesses. Such abstract shall be provided free of charge if the request is accompanied by appropriate written evidence that the person is a member of or applicant for membership in a volunteer fire company or volunteer rescue squad and the abstract is needed by a volunteer fire company or volunteer rescue squad to establish the qualifications of the member or applicant to operate equipment owned by the volunteer fire company or volunteer rescue squad.

13. On the written request of any person who has applied to be a volunteer with a Virginia affiliate of Big Brothers/Big Sisters of America, the Commissioner shall (i) compare personal information supplied by a Virginia affiliate of Big Brothers/Big Sisters of America with that contained in the Department's records and, when the information supplied by a Virginia affiliate of Big Brothers/Big Sisters of America is different from that contained in the Department's records, provide the Virginia affiliate of Big Brothers/Big Sisters of America with correct information as contained in the Department's records and (ii) provide driver information in the form of an abstract of the applicant's record showing all convictions, accidents, license suspensions or revocations, and any type of driver's license that the individual currently possesses. Such abstract shall be provided at a fee that is one-half the normal charge if the request is accompanied by appropriate written evidence that the person has applied to be a volunteer with a Virginia affiliate of Big Brothers/Big Sisters of America.

14. On the written request of any person who has applied to be a volunteer with a court-appointed special advocate program pursuant to § 9.1-153, the Commissioner shall provide an abstract of the applicant's record showing all convictions, accidents, license suspensions or revocations, and any type of driver's license that the individual currently possesses. Such abstract shall be provided free of charge if the request is accompanied by appropriate written evidence that the person has applied to be a volunteer with a court-appointed special advocate program pursuant to § 9.1-153.

15. Upon the request of any employer, prospective employer, or authorized representative of either, the Commissioner shall (i) compare personal information supplied by the employer, prospective employer, or agent with that contained in the Department's records and, when the information supplied by the employer, prospective employer, or agent is different from that contained in the Department's records, provide the employer, prospective employer, or agent with correct information as contained in the Department's records and (ii) provide driver information in the form of an abstract of the driving record of any individual who has been issued a commercial driver's license, provided that the individual's position or the position that the individual is being considered for involves the operation of a commercial motor vehicle. Such abstract shall show all convictions, accidents, license suspensions, revocations, or disqualifications, and any type of driver's license that the individual currently possesses.

16. Upon the receipt of a completed application and payment of applicable processing fees, the Commissioner may enter into an agreement with any governmental authority or business to exchange information specified in this section by electronic or other means.

17. Upon the request of an attorney representing a person in a motor vehicle accident, the Commissioner shall provide vehicle information, including the owner's name and address, to the attorney.

18. Upon the request, in the course of business, of any authorized representative of an insurance company or of any not-for-profit entity organized to prevent and detect insurance fraud, or perform rating and underwriting activities, the Commissioner shall provide to such person (i) all vehicle information, including the owner's name and address, descriptive data and title, registration, and vehicle activity data as requested or (ii) all driver information including name, license number and classification, date of birth, and address information for each driver under the age of 22 licensed in the Commonwealth of Virginia meeting the request criteria designated by such person, with such request criteria consisting of driver's license number or address information. No such information shall be used for solicitation of sales, marketing, or other commercial purposes.

19. Upon the request of an officer authorized to issue criminal warrants, for the purpose of issuing a warrant for arrest for unlawful disposal of garbage, litter, or refuse in violation of § 33.1-346 33.1-350.2, the Commissioner shall provide vehicle information, including the owner's name and address.

20. Upon written request of the compliance agent of a private security services business, as defined in § 9.1-138, which is licensed by the Department of Criminal Justice Services, the Commissioner shall provide the name and address of the owner of the vehicle under procedures determined by the Commissioner.

21. Upon the request of the operator of a toll facility or traffic light photo-monitoring system acting on behalf of a government entity, or of the Dulles Access Highway, or an authorized agent or employee of a toll facility operator or traffic light photo-monitoring system operator acting on behalf of a government entity or the Dulles Access Highway, for the purpose of obtaining vehicle owner data under subsection L of § 46.2-819.1 or subsection H of § 15.2-968.1 or subsection N of § 46.2-819.5. Information released pursuant to this subdivision shall be limited to the name and address of the registered owner of the vehicle having failed to pay a toll or having failed to comply with a traffic light signal or having improperly used the Dulles Access Highway and the vehicle information, including all descriptive vehicle data and title and registration data of the same vehicle.

22. On the written request of any person who has applied to be a volunteer with a Virginia affiliate of Compeer, the Commissioner shall (i) compare personal information supplied by a Virginia affiliate of Compeer with that contained in the Department's records and, when the information supplied by a Virginia affiliate of Compeer is different from that contained in the Department's records, provide the Virginia affiliate of Compeer with correct information as contained in the Department's records and (ii) provide driver information in the form of an abstract of the applicant's record showing all convictions, accidents, license suspensions or revocations, and any type of driver's license that the individual currently possesses. Such abstract shall be provided at a fee that is one-half the normal charge if the request is accompanied by appropriate written evidence that the person has applied to be a volunteer with a Virginia affiliate of Compeer.

23. Upon the request of the Department of Environmental Quality for the purpose of obtaining vehicle owner data in connection with enforcement actions involving on-road testing of motor vehicles, pursuant to § 46.2-1178.1.

24. On the written request of any person who has applied to be a volunteer vehicle operator with a Virginia chapter of the American Red Cross, the Commissioner shall (i) compare personal information supplied by a Virginia chapter of the American Red Cross with that contained in the Department's records and, when the information supplied by a Virginia chapter of the American Red Cross is different from that contained in the Department's records, provide the Virginia chapter of the American Red Cross with correct information as contained in the Department's records and (ii) provide driver information in the form of an abstract of the applicant's record showing all convictions, accidents, license suspensions or revocations, and any type of driver's license that the individual currently possesses. Such abstract shall be provided at a fee that is one-half the normal charge if the request is accompanied by appropriate written evidence that the person has applied to be a volunteer vehicle operator with a Virginia chapter of the American Red Cross.

25. On the written request of any person who has applied to be a volunteer vehicle operator with a Virginia chapter of the Civil Air Patrol, the Commissioner shall (i) compare personal information supplied by a Virginia chapter of the Civil Air Patrol with that contained in the Department's records and, when the information supplied by a Virginia chapter of the Civil Air Patrol is different from that contained in the Department's records, provide the Virginia chapter of the Civil Air Patrol with correct information as contained in the Department's records and (ii) provide driver information in the form of an abstract of the applicant's record showing all convictions, accidents, license suspensions or revocations, and any type of driver's license that the individual currently possesses. Such abstract shall be provided at a fee that is one-half the normal charge if the request is accompanied by appropriate written evidence that the person has applied to be a volunteer vehicle operator with a Virginia chapter of the Civil Air Patrol.

26. On the written request of any person who has applied to be a volunteer vehicle operator with Faith in Action, the Commissioner shall (i) compare personal information supplied by Faith in Action with that contained in the Department's records and, when the information supplied by Faith in Action is different from that contained in the Department's records, provide Faith in Action with correct information as contained in the Department's records and (ii) provide driver information in the form of an abstract of the applicant's record showing all convictions, accidents, license suspensions or revocations, and any type of driver's license that the individual currently possesses. Such abstract shall be provided at a fee that is one-half the normal charge if the request is accompanied by appropriate written evidence that the person has applied to be a volunteer vehicle operator with Faith in Action.

27. On the written request of the surviving spouse or child of a deceased person or the executor or administrator of a deceased person's estate, the Department shall, if the deceased person had been issued a driver's license or special identification card by the Department, supply the requestor with a hard copy image of any photograph of the deceased person kept in the Department's records.

28. On the written request of any person who has applied to be a volunteer with a Virginia Council of the Girl Scouts of the USA, the Commissioner shall (i) compare personal information supplied by a Virginia Council of the Girl Scouts of the USA with that contained in the Department's records and, when the information supplied by a Virginia Council of the Girl Scouts of the USA is different from that contained in the Department's records, provide a Virginia Council of the Girl Scouts of the USA with correct information as contained in the Department's records and (ii) provide driver information in the form of an abstract of the applicant's record showing all convictions, accidents, license suspensions or revocations, and any type of driver's license that the individual currently possesses. Such abstract shall be provided at a fee that is one-half the normal charge if the request is accompanied by appropriate written evidence that the person has applied to be a volunteer with the Virginia Council of the Girl Scouts of the USA.

C. Whenever the Commissioner issues an order to suspend or revoke the driver's license or driving privilege of any individual, he may notify the National Driver Register Service operated by the United States Department of Transportation and any similar national driver information system and provide whatever classes of information the authority may require.

D. Accident reports may be inspected under the provisions of §§ 46.2-379 and 46.2-380.

E. Whenever the Commissioner takes any licensing action pursuant to the provisions of the Virginia Commercial Driver's License Act (§ 46.2-341.1 et seq.), he may provide information to the Commercial Driver License Information System, or any similar national commercial driver information system, regarding such action.

F. In addition to the foregoing provisions of this section, vehicle information may also be inspected under the provisions of §§ 46.2-633, 46.2-644.02, 46.2-644.03, and §§ 46.2-1200.1 through 46.2-1237.

G. The Department may promulgate regulations to govern the means by which personal, vehicle, and driver information is requested and disseminated.

H. Driving records of any person accused of an offense involving the operation of a motor vehicle shall be provided by the Commissioner upon request to any person acting as counsel for the accused. If such counsel is from the public defender's office or has been appointed by the court, such records shall be provided free of charge.

I. The Department shall maintain the records of persons convicted of violations of § 18.2-36.2, subsection B of § 29.1-738, and §§ 29.1-738.02, 29.1-738.2, and 29.1-738.4 which shall be forwarded by every general district court or circuit court or the clerk thereof, pursuant to § 46.2-383. Such records shall be electronically available to any law-enforcement officer as provided for under clause (ii) of subdivision B 9.

2.  That §§ 33.1-346 and 33.1-346.1 of the Code of Virginia are repealed.

3.  That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 890 of the Acts of Assembly of 2011 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice.

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