71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 4028
House Bill 3661
Sponsored by Representative BROWN (at the request of Oregon
Narcotics Enforcement Association)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Adds additional chemicals to list of controlled substance
precursors.
Creates offenses of failure to make or retain record of sale or
transfer of ephedrine or pseudoephedrine, iodine in its elemental
form, iodine matrix and methyl sulfonyl methane. Punishes by
maximum fine of $600.
Creates crimes of unlawful possession of red phosphorus,
anhydrous ammonia, ephedrine or pseudoephedrine, iodine in its
elemental form and iodine matrix. Punishes by maximum of one
year's imprisonment, $5,000 fine, or both.
Creates crime of unlawful distribution of ephedrine or
pseudoephedrine. Punishes by maximum of one year's imprisonment,
$5,000 fine, or both.
Creates crime of possession of precursor substance with intent
to manufacture controlled substance. Punishes by maximum of 10
years' imprisonment, $200,000 fine, or both.
A BILL FOR AN ACT
Relating to controlled substance precursors; creating new
provisions; and amending ORS 475.005, 475.035, 475.940,
475.945, 475.950, 475.955 and 475.965.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 475.940 is amended to read:
475.940. { - (1) This section establishes, for purposes of
ORS 475.950 and 475.955, substances that are precursor
substances. The following are precursor substances: - } { + As
used in ORS 475.940 to 475.995:
(1) 'Iodine matrix' means iodine at a concentration greater
than 1.5 percent by weight in a matrix or solution.
(2) 'Matrix' means something, as a substance, in which
something else originates, develops, or is contained.
(3) 'Precursor substance' means: + }
(a) Phenyl-2-propanone { - , Phenylacetone - } .
(b) Methylamine { - in either gas or water solution - } .
(c) D-lysergic acid.
(d) Ergotamine { - tartrate - } .
(e) Diethyl Malonate.
(f) Malonic acid.
(g) Ethyl Malonate.
(h) Barbituric acid.
(i) Piperidine.
(j) N-acetylanthranilic acid.
(k) Ethylamine.
(L) Pyrolidine.
(m) Phenylacetic acid.
(n) Anthranilic acid.
(o) Morpholine.
{ - (p) L-Ephedrine. - }
{ - (q) DL-Ephedrine. - }
{ + (p) Ephedrine.
(q) Pseudoephedrine.
(r) Norpseudoephedrine.
(s) Phenylpropanolamine.
(t) Benzyl cyanide.
(u) Ergonovine.
(v) 3,4-Methylenedioxyphenyl-2-propanone.
(w) Propionic anhydride.
(x) Insosafrole (Isosafrole).
(y) Safrole.
(z) Piperonal.
(aa) N-methylephedrine.
(bb) N-ethylephedrine.
(cc) N-methylpseudoephedrine.
(dd) N-ethylpseudoephedrine.
(ee) Hydriotic acid.
(ff) Gamma butyrolactone (GBL), including butyrolactone, 1,2-
butanolide, 2-oxanolone, tetrahydro-2-furanone,
dihydro-2(3H)-furanone and tetramethylene glycol, but not
including gamma aminobutyric acid (GABA).
(gg) 1,4-butanediol.
(hh) Any salt, isomer or salt of an isomer of the chemicals
listed in paragraphs (a) to (gg) of this subsection.
(ii) Iodine in its elemental form.
(jj) Iodine matrix.
(kk) Red phosphorous.
(LL) Anhydrous ammonia.
(mm) Methyl sulfonyl methane (MSM). + }
{ - (r) - } { + (nn) + } Any substance established as a
precursor substance by rule under authority granted in ORS
475.945.
{ - (2) Any combination or compound containing ephedrine, or
any of its salts or isomers, which is prepared for
over-the-counter sale not otherwise prohibited by law is not a
precursor substance for the purpose of subsection (1) of this
section. - }
SECTION 2. ORS 475.950 is amended to read:
475.950. (1) A person commits the offense of failure to report
a precursor substances transaction if the person does any of the
following:
(a) Sells, transfers or otherwise furnishes any precursor
substance described in ORS 475.940 { - (1) - } { + (3)(a) to
(hh) and (nn) + } and does not, at least three days before
delivery of the substance, submit to the Department of State
Police a report that meets the reporting requirements established
by rule under ORS 475.945.
(b) Receives any precursor substance described in ORS 475.940
{ - (1) - } { + (3)(a) to (hh) and (nn) + } and does not,
within 10 days after receipt of the substance, submit to the
Department of State Police a report that meets the reporting
requirements established by rule under ORS 475.945.
(2) This section does not apply to any of the following:
(a) Any pharmacist or other authorized person who sells or
furnishes a { + precursor + } substance { - described under
ORS 475.940 (1) - } upon the prescription of a physician,
dentist, podiatric physician and surgeon or veterinarian.
(b) Any practitioner, as defined in ORS 475.005, who
administers or furnishes a { + precursor + } substance
{ - described under ORS 475.940 (1) - } to patients upon
prescription.
(c) Any person licensed by the State Board of Pharmacy who
sells, transfers or otherwise furnishes a { + precursor + }
substance
{ - described under ORS 475.940 (1) - } to a licensed
pharmacy, physician, dentist, podiatric physician and surgeon or
veterinarian for distribution to patients upon prescription.
(d) Any person who is authorized by rule under ORS 475.945 to
report in an alternate manner if the person complies with the
alternate reporting requirements.
(e) Any patient of a practitioner, as defined in ORS 475.005,
who obtains a { + precursor + } substance { - described under
ORS 475.940 (1) - } from a licensed pharmacist, physician,
dentist, podiatric physician and surgeon or veterinarian pursuant
to a prescription.
{ + (f) Any person who sells or transfers ephedrine or
pseudoephedrine in compliance with section 6 of this 2001
Act. + }
(3) Penalties related to providing false information on a
report required under this section are provided under ORS
475.965.
{ + (4) The Department of State Police and any law
enforcement agency may inspect the sales records of any retail or
wholesale distributor of a precursor substance during the normal
business hours of the retail or wholesale distributor. + }
{ - (4) - } { + (5) + } The offense described in this
section, failure to report a precursor substances transaction, is
a Class A misdemeanor.
SECTION 3. { + Sections 4 to 10 of this 2001 Act are added to
and made a part of ORS 475.940 to 475.995. + }
SECTION 4. { + (1) Except as otherwise provided in subsection
(2) of this section, a person commits the crime of unlawful
possession of red phosphorus if the person possesses any amount
of red phosphorus.
(2) Subsection (1) of this section does not apply to:
(a) A person who is conducting a licensed business that
involves red phosphorus in the manufacture of:
(A) The striking surface used for lighting matches;
(B) Flame retardant polymers; or
(C) Fireworks if the person possesses a federal license to
manufacture explosives;
(b) A person who possesses red phosphorus in conjunction with
experiments conducted in a chemistry or chemistry related
laboratory maintained by a:
(A) Regularly established public or private secondary school;
or
(B) Public or private institution of higher education that is
accredited by a regional or national accrediting agency
recognized by the United States Department of Education;
(c) A retail distributor, wholesaler, manufacturer,
warehouseman or common carrier or an agent of any of these
persons, who possesses red phosphorus in the regular course of
lawful business activities; or
(d) The possession of red phosphorus as a component of a
commercially produced product including, but not limited to,
matchbooks, fireworks and emergency flares.
(3) Unlawful possession of red phosphorus is a Class A
misdemeanor. + }
SECTION 5. { + (1) A person commits the crime of unlawful
possession of anhydrous ammonia if the person possesses anhydrous
ammonia in a container that is not designed by the manufacturer
of the container to hold anhydrous ammonia.
(2) Unlawful possession of anhydrous ammonia is a Class A
misdemeanor. + }
SECTION 6. { + (1)(a) Except as otherwise provided in
paragraph (b) of this subsection, a person commits the crime of
unlawful possession of ephedrine or pseudoephedrine if the person
possesses more than 12 grams of ephedrine or pseudoephedrine, the
salts, isomers or salts of isomers of ephedrine or
pseudoephedrine or a combination of any of these substances.
(b) Paragraph (a) of this subsection does not apply to a
physician, pharmacist, retail distributor, wholesaler,
manufacturer, warehouseman or common carrier or an agent of any
of these persons if the possession is in the regular course of
lawful business activities.
(2) A person commits the crime of unlawful distribution of
ephedrine or pseudoephedrine if the person sells or otherwise
transfers more than 12 grams of ephedrine or pseudoephedrine, the
salts, isomers or salts of isomers of ephedrine or
pseudoephedrine or a combination of any of these substances to a
person other than a physician, pharmacist, retail distributor,
wholesaler, manufacturer, warehouseman or common carrier or an
agent of any of these persons in the regular course of lawful
business activities.
(3) A person who sells or otherwise transfers more than 12
grams of ephedrine or pseudoephedrine, the salts, isomers or
salts of isomers of ephedrine or pseudoephedrine or a combination
of any of these substances to a physician, pharmacist, retail
distributor, wholesaler, manufacturer, warehouseman or common
carrier or an agent of any of these persons shall make a record
of each sale or transfer. The record must be made on a form
provided by the Department of State Police and must be retained
by the person for at least three years. Failure to make or retain
a record required under this subsection is a Class A violation.
(4) This section does not apply to dietary supplements, herbs
or natural products, including concentrates or extracts, that are
not otherwise prohibited by law and that contain naturally
occurring ephedrine, ephedrine alkaloids or pseudoephedrine, the
salts, isomers or salts of isomers of ephedrine, ephedrine
alkaloids or pseudoephedrine or a combination of these substances
in a matrix of organic material such that the substances do not
exceed 15 percent of the total weight of the dietary supplement,
herb or natural product.
(5)(a) Unlawful possession of ephedrine or pseudoephedrine is a
Class A misdemeanor.
(b) Unlawful distribution of ephedrine or pseudoephedrine is a
Class A misdemeanor. + }
SECTION 7. { + (1) Except as otherwise provided in subsection
(2) of this section, a person commits the crime of unlawful
possession of iodine in its elemental form if the person
possesses more than two ounces of iodine in its elemental form.
(2) Subsection (1) of this section does not apply to:
(a) A physician, pharmacist, retail distributor, wholesaler,
manufacturer, warehouseman or common carrier or an agent of any
of these persons who possesses iodine in its elemental form in
the regular course of lawful business activities;
(b) A person who possesses iodine in its elemental form in
conjunction with experiments conducted in a chemistry or
chemistry related laboratory maintained by a:
(A) Regularly established public or private secondary school;
or
(B) Public or private institution of higher education that is
accredited by a regional or national accrediting agency
recognized by the United States Department of Education;
(c) A licensed veterinarian; or
(d) A person working in a general hospital who possesses iodine
in its elemental form in the regular course of employment at the
hospital.
(3) A person who sells or otherwise transfers iodine in its
elemental form to a physician, pharmacist, retail distributor,
wholesaler, manufacturer, warehouseman, common carrier, chemistry
laboratory, licensed veterinarian or general hospital or an agent
of any of these persons or entities shall make a record of each
sale or transfer. The record must be made on a form provided by
the Department of State Police and must be retained by the person
for at least three years. Failure to make or retain a record
required under this subsection is a Class A violation.
(4) Unlawful possession of iodine in its elemental form is a
Class A misdemeanor. + }
SECTION 8. { + (1) Except as otherwise provided in subsection
(2) of this section, a person commits the crime of unlawful
possession of an iodine matrix if the person possesses an iodine
matrix.
(2) Subsection (1) of this section does not apply to:
(a) A person who possesses an iodine matrix as a prescription
drug, pursuant to a prescription issued by a licensed
veterinarian or physician;
(b) A person who is actively engaged in the practice of animal
husbandry of livestock as defined in ORS 609.125;
(c) A person who possesses an iodine matrix in conjunction with
experiments conducted in a chemistry or chemistry related
laboratory maintained by a:
(A) Regularly established public or private secondary school;
or
(B) Public or private institution of higher education that is
accredited by a regional or national accrediting agency
recognized by the United States Department of Education;
(d) A veterinarian, physician, pharmacist, retail distributor,
wholesaler, manufacturer, warehouseman or common carrier or an
agent of any any of these persons who possesses an iodine matrix
in the regular course of lawful business activities; or
(e) A person working in a general hospital who possesses an
iodine matrix in the regular course of employment at the
hospital.
(3) A person who sells or otherwise transfers an iodine matrix
to a person pursuant to a prescription issued by a licensed
veterinarian or physician, to a person engaged in the practice of
animal husbandry of livestock, to a chemistry or chemistry
related laboratory, to a general hospital or to a veterinarian,
physician, pharmacist, retail distributor, wholesaler,
manufacturer, warehouseman or common carrier or an agent of any
of these persons or entities, shall make a record of each sale or
transfer. The record must be made on a form provided by the
Department of State Police and must be retained by the person for
at least three years. Failure to make or retain a record required
under this subsection is a Class A violation.
(4) Unlawful possession of an iodine matrix is a Class A
misdemeanor. + }
SECTION 9. { + (1) A person who sells or otherwise transfers
more than the amount permitted by administrative rule adopted by
the Department of State Police of methyl sulfonyl methane to a
physician, pharmacist, veterinarian, retail distributor,
wholesaler, manufacturer, warehouseman or common carrier or an
agent of any of these persons shall make a record of each such
sale or transfer. The record must be made on a form provided by
the department and must be retained by the person for at least
three years. Failure to make or retain a record required under
this subsection is a Class A violation.
(2) The department shall adopt a rule establishing the minimum
amount of methyl sulfonyl methane the sale or transfer of which
requires a report under subsection (1) of this section. In
establishing the minimum amount, the department shall determine
an amount that is reasonably designed not to infringe upon
legitimate uses of methyl sulfonyl methane but that discourages
the use of methyl sulfonyl methane in the illicit production and
distribution of methamphetamine. + }
SECTION 10. { + (1) A person commits the crime of possession
of a precursor substance with intent to manufacture a controlled
substance if the person possesses one or more precursor
substances with the intent to manufacture a controlled substance
in violation of ORS 475.992 (1).
(2) Possession of a precursor substance with intent to
manufacture a controlled substance is a Class B felony. + }
SECTION 11. { + Until the Department of State Police adopts a
rule under section 9 of this 2001 Act, a person who sells or
otherwise transfers two pounds or more of methyl sulfonyl methane
shall make the reports required by section 9 of this 2001
Act. + }
SECTION 12. ORS 475.945 is amended to read:
475.945. This section grants authority to and establishes
duties of the Department of State Police in relation to the
requirements concerning precursor substances under ORS 475.940
{ - (1), 475.950 and 475.955 - } { + to 475.995 + }. The
following are applicable as described:
(1) The department may adopt rules in accordance with ORS
183.310 to 183.550 that add substances to those specifically
enumerated in ORS 475.940 { - (1) - } { + (3) + } if the
substance is a precursor to a controlled substance. Similarly,
the department may delete such substances as it has added by
administrative rule.
(2) Notwithstanding the time period established for reporting
under ORS 475.950, the department may authorize the submission of
such reports on a monthly basis with respect to repeated, regular
transactions between the furnisher and recipient involving the
same substance if the department determines that all of the
following exist:
(a) A pattern of regular supply of such substance exists as
between the manufacturer, wholesaler, retailer or other person
who sells, transfers or otherwise furnishes such substance and
the recipient of the substance.
(b) The recipient has established a record of use of the
substance for lawful purposes.
(3) The department shall establish a common { - reporting - }
form { + for reporting or recording + } for purposes of ORS
475.950 { + and sections 6 (3), 7 (3), 8 (3) and 9 (1) of this
2001 Act + }. The department may include as information required
to be reported { + or recorded + } on the form any information
the department determines will be convenient or useful to police
agencies in finding potentially illegal uses of precursor
substances. The reporting { + or recording + } form shall
require at least the following information:
(a) The name of the substance.
(b) The quantity of the substance sold, transferred or
furnished.
(c) The date the substance was sold, transferred or furnished.
(d) The name and address of the person buying or receiving the
substance accompanied by a verification of the person's
identification by means the department requires by rule.
(e) The name and address of the person selling, transferring or
furnishing the substance accompanied by a verification of the
person's identification by means the department requires by rule.
(f) The name of any agent acting on behalf of any party to the
transaction accompanied by a verification of the person's
identification by means the department requires by rule.
(4) The department shall establish a common reporting form for
purposes of ORS 475.955. The department may include as
information required to be reported on the form any information
the department determines will be convenient or useful to police
agencies in finding potentially illegal uses of precursor
substances. The reporting form shall require at least the
following information:
(a) The name of the person making the report.
(b) The name of the common carrier or person who transports the
substance and date of shipment of the substance.
(c) The date and circumstances of discovering the loss, theft
or discrepancy.
(5) The department shall furnish a copy of the report to the
local law enforcement agency in whose jurisdiction the
transaction occurred.
SECTION 13. ORS 475.955 is amended to read:
475.955. (1) A person commits the offense of failure to report
missing precursor substances if the person:
(a) Is a licensee or other person regulated by the provisions
of ORS 475.005 to 475.285 and 475.940 to 475.995;
(b) Discovers any theft or loss of any precursor substance
{ - described under ORS 475.940 (1) - } or any difference
between the quantity received and the quantity shipped; and
(c) Within three days after discovery of the theft or loss or
actual knowledge of the discrepancy, does not report the theft,
loss or discrepancy to the Department of State Police in the
manner provided by rule adopted under ORS 475.945.
(2) Penalties for providing false information on any report
required under this section are provided under ORS 465.965.
(3) The offense described in this section, failure to report
missing precursor substances, is a Class A misdemeanor.
SECTION 14. ORS 475.965 is amended to read:
475.965. (1) A person commits the offense of providing false
information on a precursor substances report { + or record + }
if the person knowingly provides false information in any report
{ + or record + } required under ORS 475.950 or 475.955 { + or
section 6, 7, 8 or 9 of this 2001 Act + }.
(2) The offense described in this section, providing false
information on a precursor substances report { + or record + },
is a Class A misdemeanor.
SECTION 15. ORS 475.005 is amended to read:
475.005. As used in ORS 475.005 to 475.285 and 475.940 to
475.995, unless the context requires otherwise:
(1) 'Abuse' means the repetitive excessive use of a drug short
of dependence, without legal or medical supervision, which may
have a detrimental effect on the individual or society.
(2) 'Administer' means the direct application of a controlled
substance, whether by injection, inhalation, ingestion or any
other means, to the body of a patient or research subject by:
(a) A practitioner or an authorized agent thereof; or
(b) The patient or research subject at the direction of the
practitioner.
(3) 'Administration' means the Drug Enforcement Administration
of the United States Department of Justice, or its successor
agency.
(4) 'Agent' means an authorized person who acts on behalf of or
at the direction of a manufacturer, distributor or dispenser. It
does not include a common or contract carrier, public
warehouseman or employee of the carrier or warehouseman.
(5) 'Board' means the State Board of Pharmacy.
(6) 'Controlled substance' means a drug or its immediate
precursor classified in Schedules I through V under the federal
Controlled Substances Act, 21 U.S.C. 811 to 812, as modified
under ORS 475.035. The use of the term 'precursor' in this
subsection does not control and is not controlled by the use of
the term ' precursor' in ORS 475.940 { - , 475.950 and
475.955 - } { + to 475.995 + }.
(7) 'Counterfeit substance' means a controlled substance or its
container or labeling, which, without authorization, bears the
trademark, trade name, or other identifying mark, imprint, number
or device, or any likeness thereof, of a manufacturer,
distributor or dispenser other than the person who in fact
manufactured, delivered or dispensed the substance.
(8) 'Deliver' or 'delivery' means the actual, constructive or
attempted transfer, other than by administering or dispensing,
from one person to another of a controlled substance, whether or
not there is an agency relationship.
(9) 'Device' means instruments, apparatus or contrivances,
including their components, parts or accessories, intended:
(a) For use in the diagnosis, cure, mitigation, treatment or
prevention of disease in humans or animals; or
(b) To affect the structure of any function of the body of
humans or animals.
(10) 'Dispense' means to deliver a controlled substance to an
ultimate user or research subject by or pursuant to the lawful
order of a practitioner, and includes the prescribing,
administering, packaging, labeling or compounding necessary to
prepare the substance for that delivery.
(11) 'Dispenser' means a practitioner who dispenses.
(12) 'Distributor' means a person who delivers.
(13) 'Drug' means:
(a) Substances recognized as drugs in the official United
States Pharmacopoeia, official Homeopathic Pharmacopoeia of the
United States or official National Formulary, or any supplement
to any of them;
(b) Substances intended for use in the diagnosis, cure,
mitigation, treatment or prevention of disease in humans or
animals;
(c) Substances (other than food) intended to affect the
structure or any function of the body of humans or animals; and
(d) Substances intended for use as a component of any article
specified in paragraph (a), (b) or (c) of this subsection;
however, the term does not include devices or their components,
parts or accessories.
(14) 'Manufacture' means the production, preparation,
propagation, compounding, conversion or processing of a
controlled substance, either directly or indirectly by extraction
from substances of natural origin, or independently by means of
chemical synthesis, or by a combination of extraction and
chemical synthesis, and includes any packaging or repackaging of
the substance or labeling or relabeling of its container, except
that this term does not include the preparation or compounding of
a controlled substance:
(a) By a practitioner as an incident to administering or
dispensing of a controlled substance in the course of
professional practice; or
(b) By a practitioner, or by an authorized agent under the
practitioner's supervision, for the purpose of, or as an incident
to, research, teaching or chemical analysis and not for sale.
(15) 'Marijuana' means all parts of the plant Cannabis family
Moraceae, whether growing or not; the resin extracted from any
part of the plant; and every compound, manufacture, salt,
derivative, mixture, or preparation of the plant or its resin. It
does not include the mature stalks of the plant, fiber produced
from the stalks, oil or cake made from the seeds of the plant,
any other compound, manufacture, salt, derivative, mixture, or
preparation of the mature stalks (except the resin extracted
therefrom), fiber, oil, or cake, or the sterilized seed of the
plant which is incapable of germination.
(16) 'Person' includes a government subdivision or agency,
business trust, estate, trust or any other legal entity.
(17) 'Practitioner' means physician, dentist, veterinarian,
scientific investigator, certified nurse practitioner, physician
assistant or other person licensed, registered or otherwise
permitted by law to dispense, conduct research with respect to or
to administer a controlled substance in the course of
professional practice or research in this state but does not
include a pharmacist or a pharmacy.
(18) 'Prescription' means a written or oral direction, given by
a practitioner for the preparation and use of a drug. When the
context requires, 'prescription' also means the drug prepared
under such written or oral direction. Any label affixed to a drug
prepared under written or oral direction shall prominently
display a warning that the removal thereof is prohibited by law.
(19) 'Production' includes the manufacture, planting,
cultivation, growing or harvesting of a controlled substance.
(20) 'Research' means an activity conducted by the person
registered with the federal Drug Enforcement Administration
pursuant to a protocol approved by the United States Food and
Drug Administration.
(21) 'Ultimate user' means a person who lawfully possesses a
controlled substance for the use of the person or for the use of
a member of the household of the person or for administering to
an animal owned by the person or by a member of the household of
the person.
SECTION 16. ORS 475.035 is amended to read:
475.035. (1) In arriving at any decision on changes in or
addition to classification when changes or additions are proposed
by the federal Drug Enforcement Administration or by any other
reliable source, the State Board of Pharmacy shall review the
scientific knowledge available regarding the substance, its
pharmacological effects, patterns of use and misuse, and
potential consequences of abuse, and consider the judgment of
individuals with training and experience with the substance.
(2) Whenever the board determines that a change in or an
addition to the schedule of a controlled substance is justified,
the board by rule may order the change and fix the effective date
thereof.
(3) If a substance is an ingredient of a controlled substance,
the ingredient shall be considered to be in the same schedule as
that controlled substance. Substances which are precursors of the
ingredient shall not be subject to control solely because they
are precursors of the ingredient. The use of the term 'precursor'
in this subsection does not control and is not controlled by the
use of the term 'precursor' in ORS 475.940 { - , 475.950 and
475.955 - } { + to 475.995 + }.
(4) The board shall administer ORS 475.005 to 475.285 and
475.940 to 475.995 in accordance with ORS 183.310 to 183.550.
(5) Authority to control under this section does not extend to
tobacco or to alcoholic beverages as defined in ORS 471.001.
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