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ICYMI: Slate: Government by Gobbledygook PDF Print E-mail
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Written by Jeff Giertz   
Tuesday, 24 January 2012 14:47

In case you missed it…


Into this stew dives Iowa Democrat Rep. Bruce Braley, who unveiled his Plain Regulations Act on Wednesday, saying, “Gobbledygook dominates the regulations issued by government agencies, making it almost impossible for small businesses to understand the rules of the road.” Forcing the government to write in plain English is a great idea. So good, in fact, that it’s enough to make you wonder why it hasn’t happened already.



Government by Gobbledygook

Federal regulations are wordy, jargon-filled and incomprehensible. Will a new bill remedy that?



When businesspeople complain about regulations, you should generally be skeptical. The regulations, after all, are there precisely because some businesses can make more money by despoiling the environment, endangering public health and safety, and threatening the financial system. A regulation that’s not annoying someone by wrecking his money-making scheme would be completely pointless.


But there is one category of complaints about regulations that should earn your sympathy: the complaints that too many government regulations are unreadable. Incomprehensible rules undermine, rather than enhance, the goal of preventing misconduct. They create unique burdens on smaller organizations or new entrants into a line of work. Hard-to-understand rules are a lawyer’s best friend, and the need for companies to lawyer up is a huge advantage to large or established entities.


Consider, for example, the relevant federal rules about renovating an old building suspected of containing lead paint. I hesitate to even quote examples of confusing regulatory language lest my column itself become unreadable, but surely the U.S. government can do better than: “On or after July 6, 2010, all renovations must be performed in accordance with the work practice standards in §745.85 and the associated recordkeeping requirements in §745.86(b)(1) and (b)(6) in target housing or child-occupied facilities, unless the renovation qualifies for the exception identified in §745.82(a).” You’ll be glad to know, however, that §745.82(a) does, among other things, offer an exemption for “emergency renovations” (which has a word salad definition of its own)—with the sub-exception that “emergency renovations are not exempt from the cleaning requirements of §745.85(a)(5), which must be performed by certified renovators or individuals trained in accordance with §745.90(b)(2), the cleaning verification requirements of §745.85(b), which must be performed by certified renovators, and the recordkeeping requirements of §745.86(b)(6) and (b)(7).” Got it? Me neither.



Into this stew dives Iowa Democrat Rep. Bruce Braley, who unveiled his Plain Regulations Act on Wednesday, saying, “Gobbledygook dominates the regulations issued by government agencies, making it almost impossible for small businesses to understand the rules of the road.” Forcing the government to write in plain English is a great idea. So good, in fact, that it’s enough to make you wonder why it hasn’t happened already.


The answer turns out to be that it has. Many times.


Braley himself authored the Plain Writing Act of 2010, which passed in the fall of that year and was signed into law by President Obama. The act requires the federal government to present newly written forms and other documents in a “clear, concise, well-organized” manner. This, too, was a good idea, and has produced some genuine progress: Check out the before and after versions of this Medicare fraud letter. At the same time, clarity is perhaps in the eye of the beholder. I’m not sure I would consider this new NOAA draft statement of priorities to be model English, despite having been written in the post-Plain Writing Act era.


Braley’s new bill proposes extending the plain-English requirement to new regulations. Legal demands for clearer writing date back at least to the 1970s, when Jimmy Carter issued executive orders requiring regulations to be “cost-effective and easy-to-understand by those who were required to comply with them.” The Reagan administration decided to rescind those orders, but they made a comeback in the Clinton years. Executive Order 12866 demands that regulations be “simple and easy to understand, with the goal of minimizing uncertainty and litigation,” and Executive Order 12988 contains eight separate references to “clear language.” Vice President Al Gore presented regular No Gobbledygook Awards as part of his reinventing-government initiative.

And yet after all these executive borders, we still need Rep. Braley and his bills.


Perhaps the beginning of wisdom here would be to admit that writing well is hard. It’s even harder when a regulation serves both as an instruction for citizens and businesses and as a potential object of litigation. Making text easy to understand and minimizing the possibility of lawsuits are two different jobs. “Legalese” is a term of disparagement, but lawyers write that way for a reason. And it’s not as if government is the only place where bad writing afflicts us. We’ve all been baffled by instruction manuals, annoyed by consultant jargon, and confused by health insurance forms. Some of us are full-time professional writers and still wrestle with the question of how to explain complicated subjects in a way that’s accessible, informative, and accurate. If getting the job done were as simple as editors handing out a memo ordering everyone to write better, the media would be a very different place.


What’s really needed is more resources and more support. The website maintained by an informal group of federal employees who call themselves the Plain Language Action and Information Network, is a useful tool, but it’s a bit threadbare. The government could use an active and feisty core of dedicated writers, editors, and graphic designers to punch up key documents. The EPA lead rule, for example, probably needs to stay wordy and unreadable for legal purposes but could be easily punched up by a flowchart that would help you figure out which category you belong in.

The Internet should be a godsend for clarity, enabling agencies to bury wordy definitions beneath links or helping you find the relevant rule by asking questions the way TurboTax does. But to do that stuff, someone would have to roll up her sleeves and do the work. That would require some money and some new personnel, which are in short supply. Also, that hard and boring work lacks the populist common sense appeal of simply mandating clearer writing and making fun of gobbledygook.

Braley Statement on Illinois Senator Mark Kirk PDF Print E-mail
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Written by Jeff Giertz   
Tuesday, 24 January 2012 10:02
Washington, DC – January 23, 2012 - Today, Rep. Bruce Braley (IA-01) released this statement following reports that US Senator Mark Kirk of Illinois suffered a stroke:

“I was surprised to hear that Senator Kirk suffered a stroke this weekend.  Carolyn and I have Mark in our thoughts and prayers.  We hope his recovery is swift and he can return to service in the US Senate soon.”

# # #

Q&A on Controversial Recess Appointments with U.S. Senator Chuck Grassley PDF Print E-mail
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Written by Grassley Press   
Tuesday, 24 January 2012 10:00

Q:      Why are recess appointments in the news?

A.     On Jan. 4, President Obama bypassed the Senate and appointed Richard Cordray as director of the Consumer Financial Protection Bureau and three members of the National Labor Relations Board.  His move is highly controversial over whether he exceeded his constitutional power to make appointments during a Senate recess and so exceeded the power of his office.


Q.        What’s at stake when the President circumvents the Senate with nominations?

A.        Our constitutionally outlined system of checks and balances among the three branches of our government is undermined when the President ignores the Constitution in making appointments.  The Constitution expressly assigns the Senate an advice and consent role in presidential nominations.   The President nominates, the Senate acts to confirm or disprove the nomination.  The Constitution says each house of Congress makes its own rules of proceeding.  The Administration argues the Senate was in recess during the President’s appointments, but that’s a red herring.  In effect, the Senate is in session when it says it’s in session, not when the President says the Senate is in session.  And, according to its own rules, the Senate was not in an extended recess during the President’s action.  The Constitution does provide for the President to make appointments when the Senate is in a prolonged recess, but there are restrictions on those powers.  And in addition to constitutional limitations, practice, tradition, and legal opinions all have influenced the process.  If constitutional constructions are flouted, the President could choose to make all of his own appointments and skip the Senate’s advice and consent role.  Similarly, if the Senate were to declare the law of the land without seeking a presidential signature or veto, that would be a clear violation of constitutional strictures.   The White House would protest, just as the Senate is protesting now.  The Constitution works to keep any one branch of the government from getting too powerful.  It’s what keeps our country a republic, not a monarchy, the form of government our founders fled, fought, and rejected.


Q:        Why are you unconvinced by the Justice Department’s opinion about the ability of the President to make recess appointments in certain circumstances?

A:        The conclusion of the Justice Department’s Office of Legal Counsel is at odds with the text of the U.S. Constitution and the administration’s own previous statements.  It fundamentally alters the careful separation of powers between the executive and legislative branches that the framers crafted in the Constitution.  It relies on no Supreme Court decision for its conclusion that the Constitution allows the President to make these appointments.  In fact, many of the Administration’s conclusions are unsupported in law or the Constitution.  The Justice Department recognizes that the courts might well disagree.  And the action flies in the face of more than 90 years of historical practice.  Taken together with a laundry list of other assertions of the power to act without Congress, this clearly is an escalation in a pattern of contempt for the elected representatives of the American people.  The Senate will need to take action to check and balance President Obama’s blatant attempt to circumvent the Senate and the Constitution, a claim of presidential power that the Bush Administration refused to make.  No president since Theodore Roosevelt has tested the limitations on a president’s power to make recess appointments as President Obama has.   It was seen as a blatant power grab when Theodore Roosevelt did it, and it strikes many of us the same way from President Obama.


Monday, January 23, 2012

Recess Appointments, Gerrard Nomination PDF Print E-mail
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Written by Grassley Press   
Monday, 23 January 2012 16:30

Prepared Floor Statement of Senator Chuck Grassley

Ranking Member, Senate Committee on the Judiciary

On The Nomination of John Gerrard and

President Obama’s Four Recent “Recess” Appointments

Monday, January 23, 2012


Mr. President,

Just over a month ago, on December 17, the Senate entered into a unanimous consent agreement to consider the nomination of John M. Gerrard, of Nebraska, to be United States District Judge for the District of Nebraska.

We are proceeding with this nomination, which I will support, despite the President’s actions on his so-called recess appointments.  I note that during the last session we acted responsibly in considering the President’s nominees.  Even the Majority Leader acknowledged this.  He stated, “We have done a good job on nominations the last couple of months. Actually, in the last 3 months, we have accomplished quite a bit.”

I will have more to say about the recess appointments.

But with regard to this nomination I hope my colleagues understand that even though we are proceeding under regular order today, it is only because this unanimous consent agreement was locked in before the President demonstrated his monarchy mentality by making those appointments.  I am not going to hold this nominee accountable for the outrageous actions of the President.

However, as this is a matter of concern to my Republican colleagues, as it should be for all Senators, we must consider how we will respond to the President and restore a constitutional balance.

As I stated, since the adoption of the unanimous consent agreement governing the nomination before us, President Obama has upset the nominations process.   Article II, Section 2 of the Constitution provides for only two ways in which Presidents may appoint certain officers.

First, it provides that the President nominates, and by and with the advice and consent of the Senate, appoints various officers.  Second, it permits the President to make temporary appointments when a vacancy in one of those offices happens when the Senate is in recess.  On January 4, the President made four appointments.  They were purportedly based on the Recess Appointments Clause.  He took this action even though the Senate was not in recess.  This action is of the utmost seriousness to all Americans.

These appointments were blatantly unconstitutional.  They were not made with the advice and consent of the Senate.  And they were not made “during the recess of the Senate.”

Between the end of December and today, the Senate has been holding sessions every three days.  It did so precisely to prevent the President from making recess appointments.  It followed the same procedure as it had during the term of President Bush.  President Bush declined to make recess appointments during these periods.

But President Obama chose to attempt to make recess appointments despite the existence of these Senate sessions.

In addition to being unconstitutional, these so-called recess appointments break a longstanding tradition.  They represent an attempted presidential power grab against this body.

A President has not attempted to make a recess appointment when Congress has not been in recess for more than three days in many decades.  In fact, for decades, the Senate has been in recess at least 10 days before the President has invoked this power.

Other parts of the Constitution beyond Article II, Section 2 show that these purported appointments are invalid.  Article I, Section 5 provides, “Each House may determine the Rules of its Proceedings….”

In December and January, we provided that we would be in session every three days.  The Senate was open and provided the opportunity to conduct business.

That business included passing legislation and confirming nominations.  In fact, the Senate did pass legislation, which the President signed.  According to the Constitution – each Housenot the President determines whether that House is in session.  The Senate said we were in session.  The President recognized that fact by signing legislation passed during the session.

Article I, Section 5 also states, ”Neither House, shall, during the session of Congress, without the consent of the other, adjourn for more than three days….”

The other body did not consent to our recess for more than three days.  No concurrent resolution authorizing an adjournment was passed by both chambers.  Under the Constitution, we could not recess for more than three days.  We did not do so.  The President’s erroneous belief that he can determine whether the Senate was in session would place us in the position of acting unconstitutionally.

If he is right, we recessed for more than three days without the consent of the other body.  By claiming we were in recess, the President effectively dares us to say that we failed to comply with our oath to adhere to the Constitution.  Yet, it is the President who made appointments without the advice and consent of the Senate while the Senate was in session.  It is the President who has violated the Constitution.

Of course, the President does not admit that he violated the Constitution.  He has obtained a legal opinion from the Office of Legal Counsel at his own Department of Justice.

That opinion reached the incredible conclusion that the President could make these appointments, notwithstanding our December and January sessions.

That opinion is entirely unconvincing.  For instance, to reach its conclusion that the Senate was not available as a practical matter to give advice and consent, it relies on such unpersuasive material as statements from individual senators.

The text of the Constitution is clear.

It allows no room for the department to interpret it in any so-called “practical” way that departs from its terms.

The Justice Department also misapplied a Judiciary Committee report from 1905 on the subject of recess appointments.  That report said that a Senate “recess” occurs when “the Senate is not sitting in regular or extraordinary session as a branch of the Congress, or in extraordinary session for the discharge of executive functions; when its members owe no duty of attendance; when its Chamber is empty; when, because of its absence, it cannot receive communications from the President or participate as a body in making appointments.”  Obviously, that report does not support the Department of Justice.  During these days, the Senate was sitting in session.  It could discharge executive functions.  The chamber was not empty.  It could receive communications.  It could participate as a body in making appointments.  In fact, it sat in regular session and passed legislation.

There is nothing in the 1905 report that justifies the President substituting his judgment for the Senate’s regarding whether the Senate is in session.  In any event, a Senate Judiciary Committee report from 1905 does not govern the United States Senate in 2012.  The Senate as constituted today decides its Rules and Proceedings.

The Department is on shaky legal ground when it claims that “whether the House has consented to the Senate’s adjournment of more than three days does not determine the Senate’s practical availability during a period of pro forma sessions and thus does not determine the existence of a ‘Recess’ under the Recess Appointments Clause.”  There is no basis – none -- for treating the same pro forma sessions differently for the purposes of the two clauses.  The department simply cannot have it both ways.

And the Justice Department’s opinion contains other equally preposterous arguments.  For instance, the opinion claims that the Administration’s prior statements to the Supreme Court -- through former Solicitor General Elena Kagan -- that recess appointments can be made only if the Senate is in recess for more than three days are somehow distinguishable from its current opinion.  Or that the pocket veto cases do not apply.

Or even if they did, the “fundamental rights” of individuals that the courts described in those cases include the right of the President to make recess appointments.

There was a time when Presidents believed that they could take action only when the law gave them the power to do so.  They obtained advice from the Justice Department on the question whether there was legal authority to justify the action they wished to take.  But Theodore Roosevelt started to change the way Presidents viewed power.

He believed that the President could do anything so long as the Constitution did not explicitly preclude him from acting.  When he used that theory to create wildlife refuges against a rapidly expanding industrial base, there was no objection.  But a dangerous precedent was set.  When he claimed that he could make recess appointments during a “constructive recess” of the Senate, the Senate rejected this view in that 1905 report.

When a President thinks he can do anything the Constitution does not expressly prohibit, the danger arises that his advisers will feel pressure to say that the Constitution does not stand in the way.

At that point, a President is no longer a constitutional figure with limited powers as the founders intended.  Quite the contrary, the President looks more and more like a king that the Constitution was designed to replace.

This OLC opinion reflects the changes that have occurred in the relationship between the Justice Department and the President on the question of presidential power.  Formerly, the Justice Department gave legal advice to the President based on an objective reading of texts and judicial opinions.  It was not an offshoot of the White House Counsel’s office.  This more objective view of the limits of presidential power also provided a level of protection for individual liberty, the principle at the core of our constitutional separation of powers.  The President might refuse to accept the advice.

He might choose to fire the officer who gave him advice with which he disagreed.  He could seek to appoint a new officer who would provide the advice he preferred.  But he risked paying a political price for doing so.   An official who thought that loyalty to the Constitution exceeded his loyalty to the President could refuse to comply, at great personal risk.  That is what Elliot Richardson did during the Saturday Night Massacre of the Watergate era.

During the Reagan Administration, OLC issued opinions that concluded that the President lacked the power to undertake certain acts to implement some of his preferred policies.   The President did not undertake those unilateral actions.

President Obama originally submitted a nominee for OLC that was wholly objectionable.  The Senate had good reason to believe that she would not interpret the law without regard to ideology.  We refused to confirm her.

The President ultimately withdrew her nomination and nominated instead Virginia Seitz.   We asked important questions at her confirmation hearing and through questions for the record.  Ms. Seitz responded that OLC should adhere to its prior decisions in accordance with the doctrine of stare decisis.  And she stated that if the Administration contemplated taking action that she believed was unconstitutional, she would not stand idly by.  Relying on those assurances, the Senate confirmed Ms. Seitz.

Mr. President, Ms. Seitz is the author of this wholly erroneous opinion that takes an unprecedented view of the Recess Appointments Clause.  And I suppose it is literally true that Ms. Seitz did not stand idly by when the Administration took unconstitutional action:  rather, she actively became a lackey for the Administration.  She wrote a poorly reasoned opinion that placed loyalty to the President over loyalty to the rule of law.

That opinion, and her total deviation from the statements she made during her confirmation process, show extreme disrespect for the institution of the Senate and the constitutional separation of powers.  I gave the President and Ms. Seitz the benefit of the doubt in voting to confirm her nomination.  However, after reading this misguided and dangerous legal opinion, I’m sorry the Senate confirmed her.  It’s likely to be the last confirmation she ever experiences.

Mr. President, the Constitution outlines various powers that are divided among the different branches of our federal government.  Some of these powers are vested in only one branch, such as granting pardons or conducting impeachment proceedings.  Other powers are shared, such as passing and signing or vetoing bills.  The appointment power is a shared power between the President and the Congress.  When one party turns a shared power into a unilateral power, the fabric of the Constitution is itself violated.  And a response is called for.

In Federalist 51, Madison wrote that the separation of powers is more than a philosophical construct.  He wrote that the “separate and distinct exercise of the different powers of government” is “essential to the preservation of liberty.”  The Framers of the Constitution wrote a document that originally contained no Bill of Rights.  They believed that liberty would best be protected by preventing government from harming liberty in the first place.  That was the reason for the separation of powers.

And they designed a working separation of powers through checks and balances to ensure a limited government that protected individual rights.  Madison wrote, “Ambition must be made to counteract ambition.  The interest of the man must be connected with the constitutional rights of the place.”

That is what the Framers intended in a case such as this.  When the President unconstitutionally usurped the power of the Senate, the Senate’s ambition would check the President’s.  In this way, the Constitution is preserved.  The power of the government is limited. And the liberties of the people are protected.

But the Framers did not anticipate the modern Presidency.  It took Justice Jackson’s famous concurrence in the Youngstown case to address presidential powers in today’s world.    When the Judiciary Committee held its confirmation hearings on President Bush’s Supreme Court nominations, my friends on the other side of the aisle posed many questions about the Jackson concurrence.  That opinion sheds light on these so-called recess appointments.

For instance, President Obama argued in a nationally televised rally that his actions were justified because “[e]very day that Richard [Cordray] waited to be confirmed . . . was another day when millions of Americans were left unprotected. . . . And I refuse to take ‘no’ for an answer.”

Justice Jackson anticipated these hyperbolic statements.  He wrote: “The tendency is strong to emphasize the transient results upon policies….and lose sight of enduring consequences upon the balanced power structure of our Republic.”

President Obama has definitely let transient policy goals overtake the Constitution.  His argument is that the end justifies the means.

His argument is that he can say no to the Constitution.  Or, in essence, that the Constitution does not apply to him.  But the Constitution demands that the means justify the ends, and that adherence to established procedure is the best protection for liberty. A monarch or a king could say “no” to the Constitution.  But under our Constitution, the President may not.

It is the Constitution, and not the President, that refuses to take ‘no’ for an answer.

Justice Jackson was also aware that the modern President’s actions “overshadow any others [and] that, almost alone, he fills the public eye and ear.”  By virtue of his influence on public opinion, he wrote, the President “exerts a leverage upon those who are supposed to check and balance his power which often cancels their effectiveness.”

Some people believe that President Obama challenged the Senate for partisan purposes.  But Justice Jackson understood the true partisan dynamic that is now playing out.  He recognized that the President’s powers are political as well as legal.  Many presidential powers derive from his position as head of a political party.  Jackson wrote,

“Party loyalties and interests sometimes more binding than law, extend his effective control into branches of government other than his own, and he often may win, as a political leader, what he cannot command under the Constitution.”  Finally, he concluded, “[O]nly Congress itself can prevent power from slipping through its fingers.”

Mr. President, outside these walls, in the reception room, are portraits of great senators of the past.  The original portraits were selected by a committee that was headed by then Senator John F. Kennedy.  They included such figures as Webster, Clay, Calhoun, LaFollette, and Taft.  Yes, these senators were partisans.  But they were selected because of the role they played in maintaining the unique institution that is the Senate in our constitutional system.  In particular, they protected the Senate and the country from the excessive claims of presidential power that were made by the chief executives of their time.  Where are such members today?

Where is a member of the President’s party today who is like a more recent Senate institutionalist, Robert C. Byrd?   He defended the powers of the Senate when Presidents overreached, even Presidents of his own party.  Where are the members who recognized that our sessions every three days rightly prevented President Bush from making recess appointments but who stand idly by as President Obama makes recess appointments without a recess?

I remind my colleagues of my experiences as chairman or ranking member of the Finance Committee.  I refused to process nominees to positions that passed through that committee to whom President Bush gave recess appointments.  That is how I used the authority that I had to protect the rights of the Senate.

Mr. President, I do not believe that we should let the powers vested in the elected representatives of the American people slip through our fingers because we place partisan interests above the Constitution.  I have shown how the Framers understood that supposedly expedient departures from the Constitution risked individual liberty.  The constitutional text in this situation is clear.  It must be upheld.  We must take appropriate action to see that it is done.

Nor should we wait for the courts.

Although the NLRB appointments are already the subject of litigation, we should take action ourselves rather than rely on others. The stakes are too high.  On the other hand, even the OLC opinion recognizes, as it must, the litigation risk to the President.

For more than 200 years, Presidents have made very expansive claims of power under the Recess Appointments Clause.  The President and the Senate have worked out differences to form a working government.

Now, the Obama Administration seeks to upend these precedents and that working relationship.  It may well find, as did the Bush Administration, that when overbroad claims of presidential power find their way to court, that not only does the President lose, but that expansive arguments of presidential power that had long been a part of the public discourse can no longer be made.

Although I believe that this ironic result will ultimately occur here as well, the Senate must defend its constitutional role on its own, as intended by the framers of the Constitution that we all swore an oath to uphold.


Grassley's Weekly Schedule PDF Print E-mail
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Written by Grassley Press   
Monday, 23 January 2012 16:27
Monday, January 23, 2012

Here is information about Senator Grassley’s schedule this week in Washington.  The Senate is in session.

Senator Grassley will hold meetings with Iowans representing March for Life, ASCD (formerly the Association for Supervision and Curriculum Development), the Iowa Corn Growers, the Visiting Nurse Association, and Farm Credit Services of America.

Senator Grassley will be a guest on public affairs programs hosted by Sam Clovis of KSCJ Radio in Sioux City, Trent Rice of KASI Radio of Ames, Captain Steve and Tommy Lang of KCJJ Radio in Iowa City, and Ryan Schlader of WMT Radio in Cedar Rapids.

On Tuesday, January 24, at 9 p.m. (ET), Senator Grassley will attend the State of the Union address by the President in the chamber of the U.S. House of Representatives.

On Wednesday, January 25, Senator Grassley will participate in day-long meeting at Mount Vernon of the Senate Republican Conference, the formal organization of Republican senators.

On Thursday, January 26, at 3:30 p.m. (ET) Senator Grassley will meet in his office with Zarar Ahmad Moqbel Omani, the Minister of Counter Narcotics in Afghanistan, as well as Eklil Hakimi, the Ambassador of Afghanistan to the United States.  Senator Grassley co-chairs the U.S. Senate Caucus on International Narcotics Control.  The caucus held a hearing last summer regarding Afghanistan’s counter narcotics operations.  Afghanistan is one of the biggest producers of opium and heroin and proceeds from sales of the drugs have been a funding source for the Taliban.

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