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State House News for Finance Officers

March 16, 2018

 

Pension Changes

On February 26th, the Senate was scheduled to vote on Senate, No. 5 (Sweeney D-3/Kean R-21), but instead held the measure to consider potential amendments that the upper house will likely adopt at its voting session on March 26th.  In the meantime, GFOA, the New Jersey Association of Counties (NJAC), and the New Jersey State League of Municipalities (NJLM) met on March 15th with representatives from the offices of the Speaker of the General Assembly and prime sponsor of the companion version Assembly, No. 3671 (Johnson D-37/Dancer R-12) to discuss our long-standing concerns with the measure. 

Funded entirely by property taxpayer dollars, county and municipal governments across the State will spend an estimated $913.0 million in 2018 to subsidize the Police and Firemen’s Retirement System (PFRS), while PFRS members will contribute approximately $334.0 million to the defined benefit plan.  In other words, property taxpayers will finance over 73.0% of PFRS in 2018, while PFRS members will pay 27.0%.  It is also important to note that employee contributions are statutorily capped at 10% of an employee’s annual salary, whereas employer contributions are based on actuarial recommendations and equal 27.35% of an employee’s annual salary in 2018.  If the Fund falls short of projections due to underperformance of investments, benefit enhancements, or other factors, the risk of loss is borne by taxpayers as local government employers must make up the difference. 

With this in mind, we’re primarily concerned with the fact that this legislation would inequitably vest the Board’s far-reaching power with labor by a 7-5 majority; and, would enable the new Board of Trustees to enhance members benefits before requiring PFRS to attain any target funded ratio as required under current law.  One of the many hallmarks of P.L. 2011, C.78 is the prohibition enhancing member benefits in any of the State’s six pension systems until the systems achieve a target funded ratio of 80% by fiscal year 2019 and maintain the ratio thereafter. This legislation removes that requirement only for PFRS; and, would further fail to establish a true fiduciary duty to prudently manage fund assets for Board of Trustee members since counties and municipalities would continue to assume the risk of loss with PFRS as it would remain a defined benefit plan and not a defined contribution plan such as a 401(k).

 

As has been well documented, the local pension systems funded by counties and municipalities are healthy and actuarially sound as local governing bodies have met their obligations as employers, and have made the statutorily required full pension contributions for over a decade.  As such, we’re urging the Legislature to consider the following recommendations that will serve to protect the long-term health and viability of PFRS; and, will importantly establish critical safeguards that demand the new Board of Trustees manage valuable property taxpayer dollars in an effective and efficient manner:  create a 15-member PFRS Board of Trustees comprised of an equal number of labor and management representatives with 1 independent member;  authorize NJAC and NJLM to make direct management appointments to the new Board of Trustees as is the case with the labor representatives; prohibit the new Board of Trustees from enhancing member benefits until the system achieves a target funded ratio of 80% in 2019 as required under current law;  and, require a vote of 2/3 of the full membership of the new Board of Trustees to enhance members benefits and only after the system achieves a target funded ratio of 80%.

If the Legislature and Governor fail to amend the measure accordingly, we recommend changing PFRS to a defined contribution plan where employees make greater contributions and assume a greater risk of loss as is the case with 401(k) investments. Separate, but certainly related, we’re also urging State leaders to permanently extend the 2% cap on binding interest arbitration awards, which local leaders hail as a critical tool for controlling personnel costs; negotiating reasonable successor contracts; and, avoiding arbitration awards granted by third party bureaucrats who are not accountable to taxpayers. Given the inaction on extending the 2% cap on binding interest arbitration awards, the sun-setting of employee health benefit controls implemented under Chapter 78, the restricting of SALT deductions on federal income taxes, and the long-term ramifications of enacting this legislation without the recommended safeguards, county and municipal leaders fear they are facing a perfect storm of uncontrollable property tax growth and substantial service cuts.   S-5 is on Second Reading in the Senate, and A-3671 is currently in the Assembly State and Local Government Committee awaiting consideration. 

Workplace Democracy Enhancement Act

On March 5th, the Senate Labor Committee favorably reported Senate Bill No. 2137 (Sweeney D-3), which would establish the “Workplace Democracy Enhancement Act.”

We plan on meeting with the sponsors to discuss our concerns that this legislation would impose mandatory requirements on public employers to ensure that public sector unions fulfill their statutorily required duties by having access to and being able to communicate with the employees they represent.  We’re concerned that the measure would unlevel the playing field in favor of labor in the collective bargaining process and would disrupt daily operations by in part permitting representative employee organizations to meet with employees on the premises during the work day, the right to conduct worksite meetings during lunch and other non-work breaks, the right to meet with newly hired employees within 30 calendar days, and other similar requirements.  These items should be left to the collective bargaining process.  We’re also concerned that this legislation would unintentionally create a taxpayer funded data mining operation; and, may violate an employee’s privacy and First Amendment rights by requiring public employers provide employee contact information before the employee joins representative employee organization. 

In summary, the bill would require public employers to provide exclusive representative employee organizations with access to members of the negotiations units.  The rights of the organization to access required by the bill would include:  the right to meet with individual employees on the premises of the public employer, during the work day, to investigate and discuss grievances, workplace-related complaints, and other workplace issues; the right to conduct worksite meetings during lunch and other non-work breaks, and before and after the workday to discuss workplace issues, collective negotiations, the administration of collective negotiations agreements, other matters related to the duties of the organization, and internal union matters involving the governance or business of the organization; and, the right to meet with newly hired employees, without charge to the pay or leave time of the employees, for a minimum of 30 minutes, within 30 calendar days from the date of hire of each employee, during new employee orientations, or if the employer does not conduct new employee orientations, at individual or group meetings.

The bill would further require public employers within 10 calendar days of hiring to provide the organization the following information about new employees: the name, job title, worksite location, home address, work telephone number, date of hire, work email address, and any personal email address and home and personal cellular telephone numbers on file with the public employer.  Public employers would also be required to provide updates to the employee organizations of that information every 120 calendar days. The bill specifies that home addresses, phone numbers, email addresses, birth dates, employee negotiation units and groupings, and communications between employee organizations and their members, are not government records and are exempt from the disclosure requirements of P.L.1963, c.73 (C.47:1A-1 et seq.). The bill would grant employee organizations the right to use the public employer email systems to communicate with their members, and government buildings to meet with their members, regarding negotiations and administration of collective negotiations agreements, grievances and other workplace-related complaints and issues, and internal organization matters.  The meetings may not be for the purposes of supporting or opposing candidates for partisan political office or distributing literature regarding partisan elections

The bill would require public employers to negotiate, upon employee organization request, contractual provisions to memorialize the parties’ agreement to implement the provisions of the bill listed above.  The bill would set forth procedures and time line regarding the resolution of any disagreement in the negotiations. The bill would further prohibit a public employer from encouraging employees to resign, relinquish membership in an employee organization, or revoke authorization of the deduction of fees to an employee organization, or encouraging or discouraging employees from joining, forming or assisting an employee organization.  Violations would be regarded as an unfair practice, and, upon a finding that the violation has occurred, the Public Employment Relations Commission, is directed to order the public employer to make whole the employee organization for any losses suffered by the organization as a result of the unfair practice. S-2137 is on Second Reading in the General Assembly, and the Assembly Labor Committee will consider Assembly No. 3686 (Coughlin D-19) at its meeting on Monday. 

Earned Sick Leave

On March 12th, local officials testified before the Assembly Labor Committee seeking amendments to Assembly No. 1827 (Lampitt D-6/Mukherji D-33), which would mandate employers provide earned sick leave to employees.

Although we although appreciate the intent of the legislation, we’re concerned that the measure would provide additional benefits to public employees already protected by generous leave policies through collective bargaining agreements, statutory law, and past practices. Although the Committee did not accept our recommendation to exempt public employers from the legislation, the committee second referenced the bill to the Assembly Appropriations Committee, and attempted to address our concerns by amending the measure to include the following language that we’re still in the process of reviewing: 

This act shall not be construed to preempt, limit, or otherwise affect the applicability of any provision of any State law or regulation regarding earned sick leave for employees of public employers that provides rights or benefits to employees which provide a greater length of earned sick leave to employees than those required by this act, but shall supersede any provision of any State law or regulation which provides a lesser length of earned sick leave  to the employees than what is required by this act, notwithstanding the provisions of those other laws or regulations. 

With respect to the bill in its entirety, the measure would provide that an employee would accrue one hour of earned sick leave for every 30 hours worked.  The employer would not be required to permit the employee to accrue or use in any benefit year, or carry forward from one year to the next, more than 40 hours of earned sick leave.  Accrual would begin on the effective date of the bill for any employee who commenced employment, but had not accrued leave, before the effective date, and the employee may use the earned sick leave beginning on the 120th day after employment commenced.  If employment commences after the effective date, the accrual of earned sick leave will begin when employment commences and the employee may use the earned sick leave beginning on the 120th day after employment commences, unless the employer agrees to an earlier date.  The employee may subsequently use earned sick leave as soon as it is accrued.

The bill would further provide that employers may choose the increments in which their employees may use earned sick leave, provided that the largest increment of earned sick leave that an employee may be required to use for each shift for which earned sick leave is used shall be the number of hours the employee was scheduled to work during that shift.  The employer would be required to pay the employee for earned sick leave at the same rate of pay, and with the same benefits, as the employee normally earns.  Earned sick leave may be used for: time needed for diagnosis, care, or treatment of, or recovery from, an employee’s mental or physical illness, injury or other adverse health condition, or for preventive medical care for the employee; time needed for the employee to care for a family member during diagnosis, care, or treatment of, or recovery from, the family member’s mental or physical illness, injury or other adverse health condition, or preventive medical care for the family member; absence needed due to circumstances resulting from the employee or a family member being a victim of domestic or sexual violence, if the leave is to obtain medical attention, counseling, relocation, legal or other services; time during which the employee is not able to work because of a closure of the employee’s workplace, or the school or place of care of a child of the employee, in connection with an epidemic or other public health emergency, or because of an official determination that the presence in the community of the employee, or a member of the employee’s family, would jeopardize the health of others; time needed by the employee in connection with a child of the employee to attend a school-related conference, meeting, or event requested or required by a school official or responsible professional staff member, or to attend a meeting regarding care for the child.

The bill would permit employers to require employees to provide advanced notice of up to seven days prior to leave when the need to take the leave is foreseeable, and to make a reasonable effort to schedule the leave in a non-disruptive manner.  The bill permits an employer to require reasonable documentation of the need for the leave if it is for three or more consecutive days, and provides guidelines for what constitutes reasonable documentation for specified reasons for leave.  Under the bill, employers may prohibit employees from using foreseeable earned sick leave from being used on certain dates, and require reasonable documentation if sick leave that is not foreseeable is used during those dates. The bill would also permit an employer to offer payment to an employee for unused earned sick leave in the final month of the benefit year, which the employee may accept.  If the employee declines a payment for unused earned sick leave, or agrees to a partial payment, the employee may have the unused leave carried forward to the following year.  If the employee accepts the full payment, the entire accrual for the following year must be made available at the beginning of that year. 

The bill would also prohibit retaliatory personnel actions against an employee for the use or requested use of earned sick leave or for filing of a complaint for an employer violation.  The bill would set requirements for record keeping and for notifying workers of their rights under the bill.  In cases of employer non-compliance with the requirements of the bill, including the requirements regarding retaliation, record keeping, and notification to employee of their rights, the bill would provide certain penalties based on the penalties for non-compliance with State laws regarding the payment of wages.   The bill would finally prohibit counties and municipalities, after the effective date of the bill, from setting new requirements regarding earned sick leave and preempts existing local requirements.   The companion version Senate, No. 2171 (Weinberg -37) is currently in the Senate Labor Committee awaiting consideration.

Transportation Trust Fund Capital Projects

On March 12th, the Senate Transportation favorably reported and second referenced to the Senate Budget and Appropriations Committee Senate, No. 876 (Sweeney D-3/Oroho R-24), which would revise the process for administering capital projects under the New Jersey Transportation Trust Fund.

In summary, the bill would authorize the Transportation Trust Fund Authority to hire engineering consultants to generate bi-annual reports which identify, for each transportation project and public transit transportation project, the progress achieved in expending capital funds and the progress achieved in completing capital projects.  The Authority may also hire an outside consultant to generate a bi-annual report on all non-project line items in the annual capital program that are not included in the engineering consultant’s report.  This report would focus on the progress achieved in expending funds appropriated in the capital program and provide a description of how those funds are being expended, including but not limited to, contracts, employment levels, and measurable outcomes relating to each capital program line item.

The bill would also require the Department of Transportation (DOT) to develop an annual highway project priority list for each county. The highway project priority list is a list of State highway projects, chosen by the county in which the projects are located, from a candidate list provided by the department to the county of all structurally deficient State bridges and State highway pavement areas in less than acceptable condition.  The dollar amount of projects that a county can add to the list each year would be limited by the amount of grant money a county is statutorily scheduled to receive each year through the local county aid program.  The Commissioner would be required to consider each highway project priority list for the inclusion of those projects into the capital program subject to the availability of funds.  If the State is unable to begin a project on the highway project priority list that was included in the capital program within three fiscal years, the county may confer with the Department, and, if the Department finds that allowing the county to take over the project is cost-effective and will expedite completion of the project, the Department may transfer the project to the county.  However, the Department would remain responsible for the cost of the project and provide payments to the county for the cost of the project on a reimbursement basis.  If the department and county agree that a county is better suited to complete a project on the list, the Department and county could also form an agreement and transfer the project to a county in less than three years.  For all projects on the list, regardless of whether a county has taken over completion of a project, local aid program funds are not to be used for these projects.  All projects are State projects and are to be funded with department capital appropriations.  Projects on the list that are transferred to a county are still required to adhere to all existing State procurement laws, including those applying to bidding and business set-asides.

The measure would also require Department to bundle the design of certain transportation design projects funded, in whole or in part, by the Transportation Trust Fund.  Projects that are eligible to be bundled are projects of similar complexity, project type, or geographic proximity, that are of similar size or design, where the bundling of design projects will not require more stringent environmental review, and whose inclusion in the program will save the department time or money.  The purpose of the program is to save costs and time by allowing multiple transportation projects to be designed under a single contract.  Contracts issued under the design bundling program are still required to adhere to all existing procurement laws, including those applying to bidding and business set-asides. The companion version Assembly No. 2607 (DeAngelo D-14) is currently in the Assembly Transportation and Independent Authorities Committee awaiting consideration. 

Property Tax Credits

 

On March 12th, the Assembly State and Local Government Committee favorably reported Senate, No. 1893/Assembly, No. 3499 (Sarlo D-36/Sweeney D-3)(McKeon D-27/Jasey D-27), which would permit local governing bodies to establish one or more charitable funds, each for a specific purpose, and would further permit property tax credits in association with certain donations. 

 

Once a local governing body establishes a charitable fund, the bill would allow anyone to make donations to it accordingly.  However, if a donation is made on behalf of a real property within the jurisdiction of the local unit, the property could be entitled to a property tax credit on the next property tax bill assessed after the donation is processed.  A local unit that intends to establish a charitable fund would do so by ordinance or resolution of the governing body, as appropriate.  A charitable fund ordinance or resolution would designate a fund administrator to assume responsibility for the collection and distribution of donations to the fund.  The ordinance or resolution would establish an annual limit on tax credit funding that may be made available as a result of local charitable donations, and an annual donation cap, which would be updated prior to the beginning of each fiscal year.  The limit on tax credit funding would equal 90 percent of the annual donation cap, or a different percentage as determined appropriate by the Director of the Division of Local Government Services (“DLGS”) in the Department of Community Affairs.  The annual donation cap would not limit all donations, only donations that could be creditable in relation to property tax payments.  A charitable fund ordinance could also limit the extent to which a large charitable donation on behalf of an individual property owner could count against the annual donation cap. 

 

Under the bill, a donation to a charitable fund could be made by or on behalf of a local property owner by directing the payment to the appropriate fund administrator.  If the donor intends to obtain a property tax credit in association with the donation, the donor would indicate to which parcel of property the donation should apply.  A donation could be credited across more than one parcel.   Following receipt of a local charitable donation, the fund administrator would issue a receipt to the donor.  The fund administrator would also notify the donor in the event that the annual donation cap has been reached, in order to provide notice that the donation is either being moved to the spillover fund or is otherwise held by the local unit, awaiting the donor’s direction.  Following this notification, the fund administrator would provide the donor with at least 60 days to direct the fund administrator to instead allocate the donation to another charitable fund or to rescind the donation. Following donation receipt, the fund administrator also would notify the appropriate tax collector within five business days of the amount of the donation and the size of the credit made available as a result of the donation. 

 

The legislation would also authorize charitable fund donations to be used for the payment of fees that may be required by a tax collector for their responsibilities under the bill, and the payment of administrative costs associated with the establishment of the fund.  Additionally, charitable fund would be used for purposes consistent with the specified charitable purpose, as designated in the ordinance or resolution establishing the fund.  The bill would further direct municipal tax collectors to allow a local property owner a credit to be applied to property taxes in association with certain charitable donations.  A credit would be equal to 90 percent of the amount of donations contributed on behalf of the owner’s specified parcel of property to a charitable fund within the local unit, or a different percentage as determined appropriate by DLGS.  The tax collector would apply the credit against the first property tax bill with respect to the specified parcel of property that is assessed on or after the fifth business day following receipt of the notification sent by the fund administrator.  If the total amount of all tax credits on a property exceed the amount of tax owed for the property to the local unit associated with a charitable fund, and the tax collector is unable to apply a full credit against the bill, then the tax collector would carry the remaining portion of the credit forward to one or more future bills.  However, no tax credit would be carried forward for more than five years.  The tax collector would indicate on a tax bill the value of the tax credits that apply to the bill and the value that would be applied to future bills.  In association with each credit, the bill permits the tax collector to require a fee from the fund administrator to be allocated towards the tax collector’s administrative expenses.  The General Assembly is expected to pass the measure at one of its upcoming voting sessions, and Governor Phil Murphy is expected to sign the bill into law. 

 

Senate Votes to Roll Back Parts of Dodd-Frank Banking Law

Donna Borak and Ted Barrett, CNN, March 14, 2018

The Senate on Wednesday passed sweeping changes to a swath of rules adopted in the wake of the 2008 financial crisis. The measure crafted by Idaho Sen. Mike Crapo, the top Republican on the Senate Banking Committee, passed 67 to 31, marking a rare occurrence of old-fashioned legislating on a bipartisan bill that nevertheless sharply divided Democrats. The legislation will now move to the House, where it will need to be reconciled with possible fixes proposed by Rep. Jeb Hensarling, chairman of the House Financial Services Committee.  A White House press secretary said in a statement that President Donald Trump supports Crapo's bill and would sign it into law. Still, the White House left the door open to possible changes that could be made by House lawmakers as long as the bipartisan bill reaches the president's desk "as soon as possible." The proposal provides long-awaited relief to thousands of community banks and dozens of regional lenders including Zions Bancorp, BB&T and SunTrust. It will also loosen regulations for mortgage lenders, expand access to free credit freezes for Americans and change rules for student loan defaults.

"This bill shows that we can work together and can do big things that make a big difference in the lives of people across this country," said Crapo on the Senate floor ahead of the vote. The bill's passage was a defeat for progressive Democrats, who strongly opposed easing regulations for some banks, warning that doing so would likely trigger another financial crisis.  "This legislation threatens to undo important rules protecting us from risk," Sen. Sherrod Brown, the top Democrat on the banking panel, said earlier this week on the Senate floor. "This legislation again puts taxpayers on the hook for bailouts."

Progressives pointed to several critical changes in the bill that would release more than two dozen regional banks from stricter oversight by the Fed and would make it easier for Wall Street banks to fight off existing regulations.

"Buried down in the details of the bill are more landmines for American families" Sen. Elizabeth Warren, a Massachusetts Democrat, said on the Senate floor ahead of the chamber's vote. "Washington has become completely disconnected from the real problem in people's lives." The bill raises the threshold at which banks are considered too big to fail. That trigger, once set at $50 billion in assets, would rise to $250 billion. It would leave only a dozen US banks -- including JPMorgan Chase, Bank of America and Wells Fargo -- facing the strictest regulations. The measure would also shield more than two dozen banks from some Fed oversight under the 2010 Dodd-Frank regulatory law. Those banks would no longer be required to have plans to be safely dismantled if they fail. And they would have to take the Fed's bank health test only periodically, not once a year.

Moderate Democrats accused progressives of overstating provisions in the bill and the likely impact it could have on the economy. Instead, they argued they have to respond to the distinct political and banking needs in their states, which they say have been hurt by consolidation in the banking industry since the law was passed. "They don't understand where we live," said Sen. Heidi Heitkamp, a moderate Democrat from North Dakota who is up for re-election, on the chamber floor. "They don't understand who we are. They don't understand we live in communities and that we support and protect each other. Instead, they write one regulation that's supposed to be one-size-fits-all."

Many of the measure's Democratic cosponsors hail from rural states won by Trump. Their support for the long-sought changes may demonstrate to their voters, many who voted for Trump, that they can work with the President and not reflexively oppose anything he supports. Ahead of Wednesday's vote, Sen. Mark Warner, a Virginia Democrat, defended his support for the bill, arguing he would never back remedies that would put the financial system at risk. "Let me be clear that I will do nothing and support no legislation that seriously undermines or cuts back on the provisions and the systemic protections that were put in place," Warner said on the chamber floor. "But eight years later ... there is widespread agreement that some of the standards we set in Dodd-Frank needed time for review."

Those cap changes include exempting community banks with $10 billion or less in assets from having to comply with the so-called Volcker Rule, a regulation that bars financial institutions from making risky bets with money insured by taxpayers.  It also stops banks that originate 500 or fewer mortgages each year from having to collect racial data on their loans. Under a 1975 law, financial institutions are required to report the race, ethnicity and ZIP codes of borrowers so regulators can make sure they aren't discriminating in lending.  Some new consumer protections were also added to the bill including offering Americans free credit freezes and barring lenders from declaring a student loan in default when a co-signer dies or declares bankruptcy.

It's not just progressives who've highlighted negative consequences from the changes to the bill. The nonpartisan Congressional Budget Office weighed in with its take on Monday, before the initial vote, and came to the conclusion that the bill, if passed, would increase the chances of another 2008-style collapse. "CBO's estimate of the bill's budgetary effect is subject to considerable uncertainty, in part because it depends on the probability in any year that a systemically important financial institution (SIFI) will fail or that there will be a financial crisis," the report states, before adding the caveat: "CBO estimates that the probability is small under current law and would be slightly greater under the legislation."

 

Bipartisan Bill Introduced to Restore Tax-Exempt Bond Provision Scrapped in Tax Reform

Jack Peterson, NACo, February 15, 2018

On February 13, Reps. Randy Hultgren (R-Ill.) and Dutch Ruppersberger (D-Md.), the chair and vice chair of the U.S. House Municipal Finance Caucus, introduced legislation to restore the tax-exempt status of advance refunding (AR) bonds, a financing tool allowing states and local governments to take advantage of favorable interest rates and refinance existing municipal bonds. AR bonds were eliminated in the tax reform package passed at the end of 2017. The bill is cosponsored by four additional members: Reps. Luke Messer (R-Ind.), Ed Royce (R-Calif.), Dan Kildee (D-Mich.) and Michael Capuano (D-Mass.).

Prior to the repeal of AR bonds in the Tax Cuts and Jobs Act (P.L. 115-97), governmental bonds – including municipal bonds – were permitted one advance refunding during the lifetime of the bond to refinance the bond. This allowed public issuers to take advantage of fluctuations in interest rates to realize considerable savings on debt service, which ultimately benefited taxpayers. The Tax Cuts and Jobs Act made the repeal of AR bonds effective at the end of 2017, meaning counties had only a few days to issue advance refundings for any outstanding bonds that qualified – a process that usually takes months or years.

The ability to advance refund outstanding bonds provided substantial savings to taxpayers and counties throughout the country. In 2016, the advance refunding of more than $120 billion of municipal securities saved taxpayers at least $3 billion, with taxpayers saving nearly $12 billion from 2012 to 2016. Best practices advanced by the Government Finance Officers Association (GFOA) recommended minimum savings thresholds on a present value basis of 3 percent to 5 percent when advance refunding municipal securities. The repeal of AR bonds in the Tax Cuts and Jobs Act generated over $17 billion in federal revenue at the expense of local governments and infrastructure development.

The legislation from Reps. Hultgren and Ruppersberger would restore AR bonds and give a needed boost to locally driven infrastructure projects across the country. However, U.S. House Ways and Means Committee Chairman Kevin Brady (R-Texas), who helped author the tax reform legislation and has oversight over AR bonds, expressed skepticism about restoring AR bonds, saying he’d prefer to focus on leveraging existing funding for infrastructure projects and shifting the current uses of private activity bonds.

 

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