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House of Assembly - Fifty-Second Parliament, First Session (52-1)
2010-09-15 Daily Xml
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MINING (MISCELLANEOUS) AMENDMENT BILL

Introduction and First Reading

Received from the Legislative Council and read a first time.

Second Reading

The Hon. J.D. HILL (Kaurna—Minister for Health, Minister for Mental Health and Substance Abuse, Minister for the Southern Suburbs, Minister Assisting the Premier in the Arts) (15:50): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

South Australia possesses a wealth of mineral resources. These are owned by the people of South Australia and need to be managed in the community's best interests.

The Government of South Australia is committed to the principles of effective and efficient regulation of our mineral resources sector.

The Government is also seeking to develop our mineral resources within the framework of South Australia's Strategic Plan—Key Objective 1: Growing Prosperity which sets targets for mineral resources exploration, production and processing.

Our Strategic Plan recognises the importance of our resources sector in growing the State's future economic prosperity through increased business investment, regional development and opportunities for employment and skilling, balanced against key environmental and social objectives.

The broad-scale benefits achieved through the development of our mineral resources will also substantially contribute to the other Strategic Plan Key Objectives: Improving Wellbeing, Attaining Sustainability, Fostering Creativity and Innovation, Building Communities and Expanding Opportunities.

Best practice management of South Australia's mineral assets, including streamlined regulation of exploration and mining activities, attracts investment that delivers outcomes of sustainable benefit and prosperity.

The Government recognises that the exploration and mining sectors require predictable procedures for access to land, security of exploration and/or mining tenure and predictable regulatory processes, in order to commit to higher risks for investment in mineral resource exploration, new mine development and life-of-mine operations.

The Government also recognises that landholders and communities require clear and timely advice on their rights under the Mining Act 1971 and on the responsibilities of exploration and mining companies who are seeking access to their land.

This Bill proposes enhancements to the Mining Act 1971 to streamline tenement applications, assessments and approvals. The Bill incorporates provisions for improving administration of regulatory compliance, enforcement and penalties under the Act, leading to effective and efficient utilisation of the State's minerals resources.

Key Objectives for the Bill

The Bill has been developed in accordance with three key objectives:

Reducing Red Tape—Repeal or amend legislative requirements that impede industry in the conduct of normal business operations.

Greater Transparency—Require industry to provide more information on proposed and current mining operations and improve notification protocols for access to land for landholders and the community. Greater transparency in government processes.

Effective Regulation—Ensure the Regulator is authorised to effectively regulate mining operations and is adequately resourced to provide a quality and timely service to industry and the community.

Consultation

Extensive consultation has been undertaken with industry, community, relevant government agencies, local government and mineral tenement holders in the development of this Bill.

During the consultation process PIRSA initiated workshops and presentations with industry, business and farming representative organisations to explain and respond to questions related to the draft Bill. The Government has sought to address all issues and comments raised during consultation in the final Bill

Impacts

The Bill together with Government policies and publically available guidelines aims to ensure that landowners and the community are well informed through more effective and transparent government processes.

The Bill will not have a significant regulatory impact on industry and formalises in the Act and the Regulations existing policies and good practice. New provisions will authorise PIRSA officers to identify and address any illegal mining activities. Illegal mining is absolutely not acceptable in our State. It can damage the environment and decrease royalty collection and creates unfair competition with approved mining operations and legitimate businesses in the minerals sector.

The Bill provides for the penalty for illegal mining to be significantly increased from a maximum of $5,000 up to a maximum of $250,000. The scale of this penalty was fully supported in submissions on the draft Bill by community and industry respondents.

The penalties throughout the Act have not been reviewed for 30 years and over that time the level of individual penalties has been eroded due to inflation. The introduction of the new structure for penalties and the increase in the dollar value will not affect any parties unless they breach the Act.

By increasing the Regulator's control through implementing environmental and rehabilitation directions, along with an increase in the penalties, the Government considers that the provisions of the Bill will deliver positive outcomes for the environment.

The requirement for a mining program which incorporates environmental protection and rehabilitation underpinned by a more comprehensive definition of the environment will enable the Regulator to deliver improved regulatory control of mining operations and prevent illegal mining. The formalisation of this program, which will include consultation with landowners and the community to reach agreed outcomes, should ensure appropriate management of potential impacts on the environment.

The provisions in the Bill will deliver a more transparent process and enhanced regulation of mining which will result in fewer nuisances and risks to public safety. The Bill introduces three new fees: an annual administration fee (which will be $100.00 per tenement), an annual regulation fee (which will be $200.00 per tenement) and an assessment fee (which will be $500.00 per application for a Mining Lease, Retention Lease or Miscellaneous Purposes Licence). The administration fee replaces approximately 20 administrative fees which were revoked as a result of the Mining Variation Regulations 2008 coming into operation on 1 July 2008. The annual administration fee will offset some of the costs associated with the collection of annual rental, refunding of rental to freehold landowners, renewal notifications and processing, maintaining the Mining Register and data maintenance including spatial data. The annual regulation fee will be used to offset some of the costs associated with regular inspections of tenements. This fee will not be applied to Extractive Minerals Leases, Retention Leases or Exploration Licences. The assessment fee will offset some of the costs associated with extensive stakeholder consultation, liaison with proponents, environmental assessments and the establishment of appropriate tenement conditions. The changes in this fee structure and administrative changes will reduce the risk to business resulting from administrative errors in the lodgement of valid applications and documentation.

The Bill provides for the Minister to be able to request an expert report from a tenement holder, verifying the information contained within a return under Part 3 of the Act. This provision was introduced to provide additional assurance to the State regarding the accuracy of the mining returns and royalty payments submitted by tenement holders. To support this provision the penalty for submitting a return which is false or misleading has also been increased from a maximum of $1,250 to a maximum of $120,000.

The Government is committed to ensuring through this Bill that the regulation of mineral exploration and mining in South Australia will conform to best practice regulatory principles in other leading resource development jurisdictions.

The Bill, together with Regulations, Polices and Guidelines, aims to achieve effectiveness and efficiency through a streamlined, fit for purpose, regulatory approach, appropriate for the circumstances while achieving a reduction in red tape.

The provisions of the Bill will lead to better quality information and a higher level of accountability for explorers and mining developers, ensuring responsibility and accountability are clearly assigned and understood by resource companies, other land users and the community. To support this provision the requirement to serve notices for entry onto land and for the use of declared equipment has been extended to include tenement holders under the Petroleum and Geothermal Energy Act 2000.

The Bill provides significant enhancements to compliance, enforcement and penalty provisions which will ensure that explorers and mining operators achieve approved environmental outcomes.

The Government is committed, to effective engagement with all stakeholders, land users and the community on mineral exploration and resource development. The Government values the informed involvement of all stakeholders and strongly supports companies to achieve a social licence to explore and/or a social licence to operate.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

This clause is formal.

2—Commencement

The measure will be brought into operation by proclamation.

3—Amendment provisions

This clause is formal.

Part 2—Amendment of Mining Act 1971

4—Amendment of section 6—Interpretation

These amendments relate to the definitions under the Act.

In relation to the definition of appropriate court, the jurisdictional limit for money claims in the Warden's Court is to be increased from $150,000 to $250,000.

In relation to the definition of declared equipment, drilling equipment within a class prescribed by the regulations will come within the ambit of this definition.

In relation to the definition of mining or mining operations, express provision will be made to include on-site operations undertaken to make minerals recovered from the site a commercially viable product, other operations involving such minerals, or other operations involving minerals brought on to the site for processing, operations for the rehabilitation of land, or other related operations. It is also to be made clear that the surface removal of loose rock material disturbed by agricultural operations will not constitute mining under the Act.

For the purposes of the Act (other than Parts 9B or 11B), environment is to be defined to include—

(a) land, air, water (including both surface and underground water and sea water), organisms, ecosystems, native fauna and other features or elements of the natural environment; and

(b) buildings, structures and other forms of infrastructure, and cultural artefacts; and

(c) existing or permissible land use; and

(d) public health, safety or amenity; and

(e) the geological heritage values of an area; and

(f) the aesthetic or cultural values of an area.

5—Amendment of section 8A—Opal development areas

It is intended to no longer provide for miner's rights under the Act.

6—Amendment of section 9—Exempt land

It is intended to no longer provide for miner's rights under the Act.

7—Insertion of sections 9AA and 9A

Section 9AA introduces a revised provision relating to waivers. Section 9A will allow the Minister, by notice in the Gazette, to declare any land to be exempt from mining, a specified class of mining, a specified provision of the Act, or the whole of the Act other than specified provisions identified by the regulations (for example, with respect to illegal mining).

One effect of a declaration will be that a person will not have the right to apply for a mining tenement in respect of land subject to the operation of the declaration unless authorised to do so by the Minister (unless the tenement is a subsequent tenement arising from a mining tenement in force at the time that the declaration takes effect).

8—Insertion of sections 14 to 14F

It is proposed to allow the Minister to appoint Public Service employees as authorised officers under the Act. An authorised officer will be able to take action—

(a) to monitor compliance with the Act; or

(b) to gather information about a suspected offence against the Act; or

(c) to gather information about personal injury or loss of property related to mining operations; or

(d) to gather information about the actual or potential environmental impact of actual or potential mining operations; or

(e) to gather other information relevant to the administration or enforcement of the Act.

The powers of an authorised officer will include to be able to enter land and carry out inspections, to require persons to answer questions or to provide information (although a person will be able to refuse to answer a question or provide information if to do so might tend to incriminate the person of an offence), and to require persons to produce records for inspection.

The Minister will be able to publish the results of any authorised investigation under these provisions.

9—Amendment of section 15—Power to conduct geological investigations etc

Various penalties under the Act are to be revised.

10—Amendment of section 15A—Register of mining tenements etc

It is intended to no longer provide for miner's rights under the Act.

11—Substitution of sections 20 to 22

As mentioned above, the Act will no longer provide for minor's rights. Rather, a person will be able to prospect for minerals under new section 20(1), subject to complying with the other requirements of the Act.

New section 21 will allow a mineral claim to be established in a manner approved by a mineral claim, in addition to the current practice of pegging a claim.

12—Amendment of section 23—Area of claim

The Minister will be empowered to approve a mineral claim that exceeds the maximum permissible area prescribed by the regulations.

13—Substitution of section 24

It is necessary to revise the provisions relating to the registration of a claim, especially as pegging will no longer be the only method by which a claim is established.

It will also be made clear that a mining registrar must not register a mineral claim if to do so would be inconsistent with an order of the Warden's Court (and a registration will be cancelled if the registration becomes inconsistent with such an order).

14—Amendment of section 25—Rights conferred by ownership of mineral claim

Certain contraventions of the Act will now be dealt with under an administrative penalty regime.

15—Amendment of section 27—Land not to be subject to successive mineral claims

Section 27 of the Act currently provides that if a mineral claim is surrendered, lapses or is forfeited, the person who held that claim cannot establish a new claim over any part of the same area at any time over the succeeding period of 2 years without the approval of the Warden's Court. The amendment will allow the Minister to also give an approval to the previous holder of the claim.

16—Amendment of section 28—Grant of exploration licence

Section 28(7) is no longer thought to be necessary.

17—Amendment of section 29—Application for exploration licence

New section 29(1a) will provide that if or when an area ceases to be subject to an exploration licence, an application for a corresponding licence may not be made during a succeeding period specified by the Minister by notice published in a manner and form determined by the Minister.

It is also intended to clarify and facilitate the arrangements that apply in relation to applications for an exploration licence.

Another amendment will expressly provide that the Minister may at any time, and without consultation with the applicant or taking any other step, refuse an application at any stage if the Minister considers that there are sufficient grounds for not assessing the application further after taking into account the public interest and such other matters as the Minister thinks fit.

18—Amendment of section 30—Incidents of licence etc

It is to be made clear that the Minister may, in granting an exploration licence, limit or define the extent or scope of operations authorised under the licence.

Another amendment will enable the Minister to add, vary or revoke a term or condition of an exploration licence at any time during the term of the licence considered appropriate by the Minister. A right of appeal will lie to the ERD Court if action is taken without the agreement of the holder of the licence.

It will also now be an offence to contravene, or to fail to comply with, a condition of a licence.

19—Amendment of section 30A—Term and renewal of licence

This is a consequential amendment.

20—Amendment of section 30AB—Subsequent exploration licence

An application for a subsequent exploration licence that has been in operation for a term, or aggregate term, of 5 years must be made at least 3 months before the expiration of the term of the licence.

21—Amendment of section 32—Licensee to keep and, on request, furnish Director with geological records etc

Certain contraventions of the Act will now be dealt with under an administrative penalty regime.

22—Amendment of section 33—Cancellation, suspension etc of licence

A right of appeal to the ERD Court exists if the Minister suspends or cancels an exploration licence under section 33. An amendment will allow the Minister or the ERD Court to be able to stay the operation of the cancellation or suspension pending the outcome of an appeal. Another amendment will allow the Minister to reinstate an exploration licence to a date that coincides with the initial date of the cancellation or suspension, or such late date as may appear to the Minister to be appropriate in the circumstances.

23—Amendment of section 34—Grant of mining lease

It is to be made clear that the Minister may, in granting a mining lease, limit or define the extent or scope of operations authorised under the lease.

Another amendment will authorise the Minister to add, vary or revoke a term of condition of a lease at any time if, in the Minister's opinion, such action is necessary to prevent, reduce, minimise or eliminate undue damage to the environment associated with mining operations conducted pursuant to the lease.

If the Minister acts under this provision during the term of the lease and without the agreement of the holder of the lease, a right of appeal will lie to the ERD Court.

It will now also be an offence to contravene or fail to comply with a condition of a lease.

24—Amendment of section 35—Application for lease

An application for a mining lease will be required to include a mining proposal—

(a) specifying the mining operations that the applicant proposes to carry out in pursuance of the lease (including details of the mining methods proposed and a description of the existing environment); and

(b) setting out—

(i) an assessment of the environmental impacts of the proposed mining operations; and

(ii) an outline of the measures that the applicant proposes to take to manage, limit or remedy those environmental impacts; and

(iii) a statement of the environmental outcomes that are accordingly expected to occur; and

(c) a draft statement of the criteria to be adopted to measure the expected environmental outcomes; and

(d) the results of any consultation undertaken in connection with the proposed mining operations.

25—Amendment of section 35A—Representations in relation to grant of lease

This clause revises the arrangements for making representations in relation to the grant of a lease.

26—Insertion of section 35B

The Minister will be required to furnish a notification relating to a decision to grant or refuse an application for a mining lease to any person who made a written representation in relation to the application.

27—Amendment of section 38—Term and renewal of mining lease

New section 38(4) will clarify the Minister's powers to extend the date by which an application for the renewal of a mining lease may be made.

28—Amendment of section 39—Rights conferred by lease

These amendments will clarify the ability of the Minister to issue a mining lease that authorises the recovery, use and sale or disposal of extractive minerals produced during operations under the lease, or a mining lease in respect of extractive minerals that authorises the recovery, use and sale or disposal of other minerals.

29—Amendment of section 41—Suspension or cancellation of lease

A right of appeal to the ERD Court exists if the Minister suspends or cancels a mining lease under section 41. An amendment will allow the Minister or the ERD Court to be able to stay the operation of the cancellation or suspension pending the outcome of an appeal. Another amendment will allow the Minister to reinstate a mining lease to a date that coincides with the initial date of the cancellation or suspension, or such late date as may appear to the Minister to be appropriate in the circumstances.

30—Amendment of section 41A—Grant of retention lease

An amendment will authorise the Minister to add, vary or revoke a term of condition of a lease at any time if, in the Minister's opinion, such action is necessary to prevent, reduce, minimise or eliminate undue damage to the environment associated with mining operations conducted pursuant to the lease.

If the Minister acts under this provision during the term of the lease and without the agreement of the holder of the lease, a right of appeal will lie to the ERD Court.

It will now also be an offence to contravene or fail to comply with a condition of a lease.

31—Amendment of section 41B—Application for retention lease

This is a consequential amendment.

32—Insertion of section 41BA

The Minister will be required to undertake a public consultation process before granting a retention lease. The new provision is similar to current section 35A of the Act relating to mining leases.

33—Amendment of section 41D—Term and renewal of retention lease

New section 41D(4) will clarify the Minister's powers to extend the date by which an application for the renewal of a retention lease may be made.

34—Amendment of section 52—Grant of miscellaneous purposes licence

It is to be made clear that the Minister may, in granting a miscellaneous purposes licence, limit or define the extent or scope of operations authorised under the licence.

Another amendment will authorise the Minister to add, vary or revoke a term of condition of a licence at any time if, in the Minister's opinion, such action is necessary to prevent, reduce, minimise or eliminate undue damage to the environment associated with mining operations conducted pursuant to the licence.

If the Minister acts under this provision during the term of the licence and without the agreement of the holder of the licence, a right of appeal will lie to the ERD Court.

It will now also be an offence to contravene or fail to comply with a condition of a licence.

35—Amendment of section 53—Application for miscellaneous purposes licence

An application for a miscellaneous purposes licence will be required to include a management plan—

(a) specifying the nature and extent of the operations or activity that the applicant proposes to carry out in pursuance of the licence; and

(b) setting out—

(i) an assessment of the environmental impacts of the proposed operations or activity; and

(ii) an outline of the measures that the applicant proposes to take to manage, limit or remedy those environmental impacts; and

(iii) a statement of the environmental outcomes that accordingly are expected to occur; and

(c) a draft statement of the criteria to be adopted to measure the expected environmental outcomes; and

(d) the results of any consultation undertaken in connection with the proposed operations or activity.

36—Amendment of section 54—Compensation

A right of an owner of land to compensation may include an additional component to cover reasonable costs incurred in connection with conducting negotiations or resolving any dispute.

37—Amendment of section 55—Term and renewal of miscellaneous purposes licence

Section 55(4) will clarify the Minister's powers to extend the date by which an application for the renewal of a miscellaneous purposes licence may be made.

38—Amendment of section 56—Suspension and cancellation of miscellaneous purposes licence

A right of appeal to the ERD Court exists if the Minister suspends or cancels a miscellaneous purposes licence under section 56. An amendment will allow the Minister or the ERD Court to be able to stay the operation of the cancellation or suspension pending the outcome of an appeal. Another amendment will allow the Minister to reinstate a miscellaneous purposes licence to a date that coincides with the initial date of the cancellation or suspension, or such late date as may appear to the Minister to be appropriate in the circumstances.

39—Amendment of section 57—Entry on land

This is a consequential amendment.

40—Amendment of section 58A—Notice of entry

Various penalties under the Act are being revised.

A notice of entry under section 58A of the Act will need to be in a form determined or approved by the Minister.

It will also be a requirement to give notice to the holder of a licence (if any) under the Petroleum and Geothermal Energy Act 2000.

41—Amendment of section 59—Use of declared equipment

An amendment will provide that the Minister may authorise the use of declared equipment under a program approved under Part 10A of the Act.

It will be a requirement to give notice of the proposed use of declared equipment to the holder of a licence (if any) under the Petroleum and Geothermal Energy Act 2000.

42—Repeal of section 60

This is a consequential amendment.

43—Amendment of section 61—Compensation

A right of an owner of land to compensation may include an additional component to cover reasonable costs incurred in connection with conducting negotiations or resolving any dispute.

44—Amendment of section 62—Bond and security

Various penalties under the Act are being revised.

45—Insertion of section 62A

New section 62A will allow an owner of land to apply to the Land and Valuation Court for an order that his or her interest in the land be purchased by the holder of a mining tenement where operations under the tenement are substantially impairing the owner's use and enjoyment of the land.

46—Amendment of section 63—Extractive Areas Rehabilitation Fund

The limit on the expenditure of money standing to the credit of the fund in relation to preventing or limiting damage to the environment is to be removed.

47—Amendment of section 63C—Registration of access claim

48—Amendment of section 67—Jurisdiction relating to tenements and monetary claims

49—Repeal of section 68

50—Amendment of section 69—Forfeiture of claim

51—Amendment of section 70—Forfeiture and transfer of lease

These are consequential amendments.

52—Insertion of Parts 10A and 10B

These amendments relate to a number of matters.

The first set of amendments will require all mining operations under a mining tenement to be conducted in accordance with a program under new Part 10A.

The second set of amendments will provide for "environmental directions" and "rehabilitation directions" to be issues in specified circumstances.

53—Amendment of section 73A—Lodging of caveats

An amendment to section 73A(1) of the Act will provide that a caveat may be lodged by a person claiming a legal or proprietary interest in a mining tenement.

An applicant for a caveat will now be required to specifically state the nature of the interest claimed and the grounds on which the claim is founded.

54—Amendment of section 73E—Royalty

55—Amendment of section 73I—Compliance orders

56—Amendment of section 73K—Rectification authorisations

57—Amendment of section 73M—Declaration of Warden's Court concerning variation or revocation of declaration of an area as a private mine

58—Amendment of section 73O—Powers of authorised officers

59—Amendment of section 74—Penalty for illegal mining

These are consequential amendments.

60—Insertion of section 74AA

The Minister is to be given power to issue a direction for the purpose of—

(a) securing compliance with a requirement under the Act, a mining tenement (including a condition of a mining tenement) or any authorisation under or in relation to a mining tenement; or

(b) preventing or bringing to an end specified operations that are contrary to the Act or a mining tenement (including a condition of a mining tenement); or

(c) without limiting any other provision, requiring the rehabilitation of land on account of any mining operations conducted without an authority required under the Act.

61—Amendment of section 74A—Compliance orders

62—Amendment of section 75—Provision relating to certain minerals

These are consequential amendments.

63—Amendment of section 76—Returns

The holder of a mining tenement at the time that the tenement expires, or is cancelled or surrendered, will be required to furnish a return to the Director of Mines within 3 months after the expiry, cancellation or surrender (or within such longer period as the Director may allow).

64—Amendment of section 77—Records and samples

Certain contraventions of the Act will now be dealt with under an administrative penalty regime.

65—Amendment of section 77A—Period of retention of records

Various penalties under the Act are being revised.

66—Insertion of sections 77B, 77C and 77D

This clause contains provisions that will facilitate the provision of additional information, samples, materials or reports.

67—Amendment of section 78—Persons under 16 years of age

68—Amendment of section 82—Surrender of lease or licence

These are consequential amendments.

69—Amendment of section 83—Dealing with licences

These amendments relate to dealings with licences.

One amendment will provide that a mortgage is within the ambit of section 83(1).

If a lease or licence is subject to a mortgage or charge, the Minister must not consent to the transfer or assignment of the lease or licence under the Act without taking reasonable steps to give notice of the proposed consent to the holder of the mortgage or charge.

70—Amendment of section 86—Removal of machinery etc

71—Repeal of section 87A

72—Amendment of section 88—Obstruction etc of officers exercising powers under Act

73—Amendment of section 89—Obstruction etc of person authorised to mine

These are consequential amendments.

74—Insertion of section 89AA

This amendment will have the effect of providing that offences constituted under the Act will lie within the criminal jurisdiction of the ERD Court.

75—Amendment of section 90—Evidentiary provision

Additional provision is to be made to facilitate the provision of proof about the status of a person as the holder of a mining tenement or about the conditions of a mining tenement.

76—Insertion of sections 91 and 91A

New section 91 sets out a scheme for administrative penalties. The amount of an administrative penalty will be fixed by regulation and will not be able to exceed $10,000.

New section 91A will allow the Mining Registrar, in prescribed circumstances, to vary the boundaries or delineation of a mining tenement, to authorise the moving or replacing of any pegs, or to take other action to rectify the area, location or boundaries of a mining tenement. However, such action will only be possible under an agreement between the holder of the relevant tenement and the Minister, or under a determination of the Warden's Court.

77—Amendment of section 92—Regulations

Some of these amendments are consequential. Another amendment will allow the fixing of assessment and annual administration fees. Another amendment will specifically provide for the adoption of a code or standard under the regulations.

Schedule 1—Related amendment and transitional provision

Part 1—Amendment of Petroleum and Geothermal Energy Act 2000

1—Amendment of section 63—Right to compensation

A right to compensation under section 63 is not to extend to any loss associated with a reduction in the value of any minerals that may be recovered under the Mining Act 1971.

Part 2—Transitional provision

2—Transitional provision

This schedule sets out transitional provisions associated with the enactment of this measure relating to the recovery of extractive and other minerals.

Schedule 2—Statute law revision amendment of Mining Act 1971

This schedule contains various statute law revision amendments.

Debate adjourned on motion of Mr Pederick.


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