[Congressional Record (Bound Edition), Volume 151 (2005), Part 14]
[Senate]
[Pages 18900-18904]
[From the U.S. Government Publishing Office, www.gpo.gov]




               PROTECTION OF LAWFUL COMMERCE IN ARMS ACT

  Mr. KENNEDY. Mr. President, I wish to speak on another subject, the 
underlying legislation, the gun immunity

[[Page 18901]]

bill. This bill is deceptively named the Protection of Lawful Commerce 
in Arms Act, but it will make it virtually impossible to bring lawsuits 
against the gun industry, even in circumstances in which the industry's 
conduct contributes to unlawful gun violence.
  The bill purports to exempt suits in which the manufacturers and 
sellers engage in illegal or negligent conduct, but these exemptions 
are poorly defined and clearly would not cover many types of bad 
conduct.
  The Senate majority leader says this bill is of urgent importance, 
taking precedence over the Defense bill because the Department of 
Defense faces the real prospect of having to outsource side arms for 
our soldiers to foreign manufacturers. But the real story is that the 
Republican leadership and the Bush administration will do whatever it 
takes to give the gun industry all that it wants.
  The NRA wants gun dealers and manufacturers to be protected from 
lawsuits. The NRA expects--the NRA demands--that this body remove the 
last resort for victims of gun violence against negligent and often 
complicit gun dealers and manufacturers by barring all types of cases.
  Let's be clear about what this bill does not do.
  It does not help our law enforcement officials fight crime or 
terrorism.
  It does not meet the urgent need to strengthen any of our gun control 
laws.
  It does not affect--it does not address at all--the rights or ability 
of law-abiding citizens to purchase and own a gun.
  It does not have anything to do with the second amendment, no matter 
how you interpret the language of that amendment.
  This bill has one motivation: payback by the Bush administration and 
the Republican leadership of the Congress to the powerful special 
interests of the National Rifle Association.
  As the New York Times reported less than 2 weeks ago, Wayne LaPierre, 
the executive vice president of the NRA, made it clear that the NRA 
expected total support from its allies--or else.
  Mr. LaPierre said, ``It's simply bad politics to be on the wrong side 
of the second amendment at election time,'' asserting that Vice 
President Al Gore lost the 2000 Presidential election because he 
supported gun control, including a Federal ban on assault weapons.
  That is the same assault weapons ban that President Bush told the 
American people he supported but then allowed to expire.
  We know what happened when the NRA pushed this special interest bill 
last year. When the Senate voted to reauthorize the assault weapons ban 
as part of the bill, the NRA called their supporters and instructed 
them to vote against the bill for which it had just lobbied. What a 
disgraceful spectacle, Members of this great body reversing themselves 
on the Senate floor minutes before a vote because of a single call from 
the NRA.
  That same kind of raw special interest power is now being used again 
to take the Senate away from the important business of protecting our 
men and women who are fighting in Iraq and Afghanistan so that a few 
unsavory gun dealers and gun manufacturers can channel powerful killing 
machines into the hands of criminals and terrorists in this country 
without any regulation or judicial oversight whatever.
  The manufacturing of guns, unlike the manufacturing of nearly every 
other consumer product in the country, is not subject to consumer 
product safety standards. As it stands, manufacturers and sellers in 
the industry are free to design, make, and market these products with 
no independent review of their potential risk.
  The gun industry is the only industry whose products are not subject 
to basic consumer health and safety regulation. Why stop with the gun 
industry? Why not make tire manufacturers immune from lawsuits or car 
manufacturers or bicycle manufacturers or toy manufacturers? Obviously, 
it would be absurd to shield any negligent manufacturers from liability 
for their action. But when it comes to shielding the gun industry, the 
NRA is calling the tune and too many Members of this body are 
tragically dancing to it.
  The other side also tells us that it is too burdensome on the gun 
industry to fight these lawsuits. After all, we are told there are 
thousands of gun laws on the books and the Government can enforce them. 
Let us look at some of those gun laws and how the gun lobby has 
systematically made it more difficult, and in some cases even 
impossible, for the Government to police negligent gun dealers and 
manufacturers while making it easier for criminals to get their hands 
on guns.
  Federal gun dealers are regulated under Federal law and required to 
perform background checks of gun buyers, but at the urging of the gun 
lobby several years ago, Congress drastically narrowed the definition 
of gun dealer. Now there are many unregulated individuals who do not 
meet the new definition. These reckless and unlicensed dealers are now 
selling millions of guns to people, including criminals and terrorists, 
without background checks. All of that is legal because the U.S. 
Congress kowtowed to the NRA.
  In the case of Afghanistan, our troops found an al-Qaida manual that 
instructed terrorists on how to buy guns legally in the United States 
without having to undergo a background check. Al-Qaida understands that 
we have created a mess that allows, even encourages, criminals and 
terrorists to traffic in guns. But we will not do anything about the 
so-called gun show loophole because the NRA has snapped its fingers and 
said no.
  We are told by the other side that victims of gun violence do not 
need recourse to the courts because the Government is already 
inspecting and overseeing the businesses of gun dealers. But is that 
the whole story? Absolutely not. At the direction of the NRA, Congress 
limited Federal inspection of gun dealers to once a year, and passed 
laws making it virtually impossible for agents to conduct inspections 
more than once a year. If an agent happens to inspect a negligent or 
even grossly negligent gun dealer in January, the dealer does not have 
to worry about the feds showing up for at least another year.
  Federally regulated financial institutions can be inspected without 
notice whenever and as often as the regulators deem appropriate. 
Meatpacking companies, shipyards, iron foundries, gas refineries can 
all be inspected without notice whenever and as often as the regulators 
deem appropriate, but not gun dealers. Congress and the NRA have said 
they can be inspected only once a year.
  What difference does that make in the life of the average citizen? It 
makes a lot of difference. Just ask the innocent victims of the DC 
sniper attacks. When the regulators cannot keep tabs on gun dealers it 
means the companies like Bull's Eye Shooter Supply Store, the dealer 
that supplied the Bushmaster rifle to the DC snipers, can get away with 
supposedly losing the rifle that ended up in the hands of DC snipers 
and losing more than 200 other guns that ended up who knows where.
  The DC sniper victims had only the courts to turn to for recourse 
because Congress made it impossible for Federal agents to police 
unsavory gun dealers such as Bull's Eye. Now the NRA is telling us, 
take away the courts, too. Why? An obvious answer is that gun dealers 
and manufacturers want to sell more guns.
  Our laws are designed by the NRA to increase the sales of guns by 
dealers and manufacturers even if they are sold to or by criminals. The 
NRA is lavishly rewarded for lobbying successes and so are the Members 
of Congress who do their bidding. It is hard to reach any other 
conclusion. The unholy alliance and control of the legislative process 
against the safety of our citizens is immoral and it is a disgrace. But 
let us look at the other outrageous actions that this body has taken 
because the NRA has demanded it.
  Congress has cut Federal funding for the agency that oversees gun 
dealers and manufacturers. In fact, the GAO has recently reported that 
the ATF is so underfunded that it would take 22 years to inspect the 
records of all gun dealers in this country just once. The GAO report 
has also found that terrorists and people on the terrorist watch

[[Page 18902]]

list are not automatically barred from purchasing guns and are 
routinely buying guns in this country. This must stop.
  The gun industry must have some accountability. That is why I am 
offering my amendment that would ensure that cases could be brought 
against gun manufacturers and dealers aiding or abetting a 
representative of a designated foreign terrorist organization. One can 
find a list of the designated foreign terrorist organizations on the 
Internet, and it includes al-Qaida and Hamas among others.
  How can Congress deny victims the right to challenge a manufacturer 
or dealer that provided guns to a foreign terrorist organization which 
caused them harm?
  This administration continuously says that we are engaged in a war on 
terror, but it takes a position that the war on terror does not allow 
us to prevent terrorists from buying guns in this country. Because of 
the actions of this administration, this Congress is caving to the NRA. 
Terrorists can now add assault weapons to their arsenals, all to 
appease the NRA so they will give campaign contributions and get out 
the vote. This is not only a disgrace, it is criminal and it has to 
stop.
  The hypocrisy is mind-boggling. After 9/11, the worst terrorist 
attack in the history of the Nation, the Justice Department, over the 
objection of the FBI, at the urging of the NRA, decided that the 
Government had to destroy within 24 hours the background check records 
of all gun purchases. What is the rationale for the destruction of 
background checks of records in 24 hours? Former Attorney General 
Ashcroft and the NRA decided that it was a violation of privacy rights 
of law-abiding citizens to have their records held on file for 90 days, 
as they have been for years since the passage of the Brady bill.
  This is the same John Ashcroft who, in the immediate aftermath of 9/
11, prohibited--that is right, he prohibited--the FBI from examining 
the gun purchasing records of any of the 19 hijackers or any of the 
1,200 other terrorist suspects who were detained for questioning. What 
kind of society are we turning into? We are supposed to be protecting 
this Nation from terrorism, not aiding and abetting terrorists.
  Within days of the 9/11 attacks, we knew who the hijackers were. We 
knew where they sat on the planes. We saw some of their faces on 
surveillance videos. We know what they had charged on their credit 
cards. We know where they had gone to school. We know where they lived, 
where they traveled. We know that they had tried to get pilots 
licenses. We know they had looked for ways to transport hazardous 
chemicals, but we did not know where they or their terrorist friends 
had purchased their firearms because we were worried about their 
privacy rights and their rights to bear arms. Give me a break.
  Every day, law-abiding Americans have their every move videotaped by 
surveillance cameras. They are required to take off their shoes and 
jackets and be searched at airports, have their luggage inspected and 
opened. Yet our Government worries about the privacy rights of 
terrorist gun owners and refuses to let the FBI look at gun purchase 
records of suspected terrorists? The Justice Department refuses to stop 
suspected terrorists from buying guns, and then it destroys those 
records in 24 hours? Something is rotten here, and it has to stop.
  I ask again, whose side are we on? Instead of addressing the real 
issues that can make our country and our communities safer, we are 
considering a bill that will close the courthouse door to victims of 
gun crimes and give a free pass to the handful of gun dealers and gun 
manufacturers who sell firearms to terrorists and criminals. We are 
doing it to appease the special interests of the NRA.
  Law-abiding citizens who sell or purchase firearms do not want to 
give criminals a free pass, but that is exactly what this bill will do. 
If we vote for it, we will be aiding and abetting these wrongdoers, 
just as Congress has done for years at the command of the NRA. This 
bill gives greater protection to the gun industry than Congress gave to 
the health care industry, to teachers and volunteers under the headline 
of tort reform. The legislation is so extreme that it requires the 
immediate dismissal of any cases pending in either State or Federal 
court.
  By doing so, the bill denies victims their day in court. It amounts 
to an unprecedented interference with the judicial branch of Government 
and is an outrageous violation of the rule of law.
  The bill's supporters misrepresent the real goal of the lawsuits 
filed against this industry. These lawsuits are not filed in an effort 
to bankrupt the industry. Like all tort suits, the victims turn to the 
courts to obtain compensation for their injuries and demand responsible 
conduct.
  Let's be clear and debunk a few myths that the other side is 
spinning. The gun industry is not uniquely burdened with lawsuits. They 
just do not like what the public discovers about the industry and its 
practices when documents are produced in litigation.
  This immunity bill is not aimed only at frivolous lawsuits. The truth 
is, it bars almost all actions for negligence. If this bill had become 
law last year, the families of the victims of the DC snipers would have 
been barred from suing and receiving the settlement from the gun dealer 
in Washington State that lost and could not account for more than 200 
guns in its inventory, like the assault rifle used by the DC snipers, 
that were used in the commission of other crimes.
  If passed, the bill forces the dismissal of a lawsuit filed by the 
family of Massachusetts victim Danny Guzman, an innocent bystander shot 
on Christmas Eve in 1999. Danny was killed by a gun stolen by an 
employee working in a gun manufacturing plant. Danny, here in the 
picture with his cousin, was a true victim of negligent conduct. This 
gun factory lacked adequate security, recordkeeping, and other 
reasonable safeguards to prevent employees from taking guns in their 
pockets out of the plant. The lack of security was so bad that the 
owners of the plant did not even know the guns were missing. Danny's 
mother and his two surviving daughters sued the manufacturer claiming 
that it had negligently hired criminals to work in its plant and had 
such irresponsible security that allowed them to walk out of the plant 
with guns that did not have serial numbers. One of these guns was used 
to shoot Danny. This case should not be dismissed.
  This bill will result in the automatic dismissal of a case just filed 
in Pennsylvania. Anthony Oliver, a 14-year-old boy, was killed by a 
handgun that discharged accidentally when he was playing with his 
friends. Anthony's life was cut short due to the gun seller's reckless 
conduct. His family filed a case against the gun companies that 
negligently allowed one of Anthony's friends to obtain a handgun. The 
dealer who sold the gun had a history of supplying guns to criminals 
and not even taking the minimum step to screen the purchasers. Over a 
4-year period, Lou sold over 400 guns traced to criminals. Under this 
bill, Anthony's family will not get their day in court, and the 
irresponsible activities of this gun dealer and its supplier will not 
be stopped. This case should not be dismissed.
  This bill would also bar municipal lawsuits. If this case passes, 
four pending cases involving New York City, the District of Columbia, 
Gary, IN, and Cleveland, OH, will all be dismissed. This bill is not 
about protecting the gun industry from bankruptcy. This bill is a 
blatant special interest bill to protect gun manufacturers and sellers 
who provide guns to criminals and even terrorists.
  With this bill, Congress is aiding and abetting in the perpetuation 
of these crimes. Enough is enough is enough. I urge my colleagues to 
join me in saying no to this shameful bill and get back to the serious 
issues that face our country.
  Mr. DURBIN. Will the Senator yield for a question?
  Mr. KENNEDY. I am glad to.
  Mr. DURBIN. I first commend the Senator from Massachusetts for 
explaining what is before the Senate, not only today but yesterday and 
the day before. Would the Senator be kind

[[Page 18903]]

enough to tell those who are observing and following this debate which 
bill we took off the calendar, which bill we were considering, to move 
this bill on the calendar, this special interest bill to protect gun 
manufacturers and gun dealers from being held personally responsible 
for their wrongdoing? Would the Senator from Massachusetts tell us what 
bill we pushed off the calendar to bring on this special interest bill?
  Mr. KENNEDY. The Senator from Illinois knows that one of the most 
important bills that we consider at any time of the year is the Defense 
authorization legislation. That is the legislation which provides basic 
resources and support for our armed services, not only in Iraq and 
Afghanistan but all over the world. It is the basic document which is 
the expression of our national priority in terms of national security 
and national defense.
  As one who has been here for some years, having been a member of the 
Armed Services Committee, we met in the day and in the evening to 
report that bill out in a timely way so that it could be considered 
before the August recess. That is what we heard, as members of the 
Armed Services Committee, and we were in the process of doing that at 
the end of last week. As a matter of fact, there was one amendment 
offered by the chairman of the committee to restore money for up-
armoring humvees, which I welcomed the opportunity to support. The 
chairman of the Armed Services Committee had opposed that up-armoring 
at the time we had the supplemental. That is very important, making 
sure our men and women serving in Iraq are going to have the body armor 
and have the best in terms of their protection. That is what is in that 
legislation. That is what we were considering. That is what we hoped to 
deal with.
  All of a sudden, out of the blue, the Republican leadership says, No, 
we are going to pull that bill down and we will put it back on the 
calendar and consider this special interest legislation, which they 
have called up. They now use parliamentary procedures in order to even 
deny those of us who want to amend that legislation the opportunity to 
do so.
  I don't know whether the Senator was here a few moments ago when our 
majority leader was talking about stem cell research, which we wanted 
to take up, which offered such hope and opportunity to conquer 
diseases. The majority leader said: We want everyone's views on our 
side of the aisle to be considered.
  It is interesting. They want that on the stem cell research, but not 
on this special interest legislation.
  It is deplorable. I know of at least 20 amendments from Members of 
our side and the other side, amendments that would provide additional 
help and support for the National Guard, for our reservists in the 
armed services of this country, that would have provided additional 
strengthening for our fighting men and women. To deflect that to 
consider this special interest legislation that is just going to serve 
the gun manufacturers makes no sense.
  I know this is an extended answer. As the Senator remembers, we spent 
2 weeks on the credit card industry legislation and bankruptcy. We 
spent 2 weeks in order to protect the credit card industry. We spent 2 
weeks after that on class action legislation. We spent more than a week 
debating highways. We have spent 3 days on the Defense authorization 
bill. And then we have the Republican leadership pull that down? It 
makes no sense to me.
  I wonder what the service men and women think about our priorities 
when an action like that is taken.
  Mr. DURBIN. If the Senator would further yield for a question, I 
would say to the Senator, through the Chair, that the Army Times, the 
publication for our U.S. Army and its soldiers who are risking their 
lives in Iraq, ran a headline story that the Senate pushed off the 
Department of Defense authorization bill, which included amendments 
which were being offered to provide additional financial assistance to 
the widows and orphans of those soldiers who lost their lives in 
combat, took away the bill which included an amendment to allow 
additional payment for totally disabled veterans, and instead moved on 
the floor this bill for one special interest group, the gun lobby.
  The Senator has made it clear the Republican leadership considers 
this bill, a National Rifle Association sponsored bill, more important 
than the Department of Defense authorization bill.
  I ask the Senator from Massachusetts if he could tell me if he knows 
of any other industry, any business in America which enjoys the same 
kind of immunity from liability for their wrongdoing--any other 
business with immunity from liability that the gun industry and gun 
dealers are asking for in this legislation.
  Mr. KENNEDY. The Senator knows the answer to that; that is, there is 
none. This will be special, unique to a single industry that prides 
itself, as the spokesman for the NRA said--you better support this or 
else; basically saying that to the Congress of the United States.
  Just to complete the thought about the sense of priorities, as 
legislators we basically express the priorities for the people of our 
State and the Nation. We express those priorities in our budget, on 
what we ought to be expending resources, and we express priorities by 
what we address on the floor of the Senate.
  One of those amendments that was going to be offered to the Defense 
authorization bill--I know the Senator from Michigan was going to 
provide assurance that there was going to be mandatory spending to 
protect the veterans who are coming back from Iraq so they are 
guaranteed the kind of health care they are guaranteed before they go 
over there and fight and become wounded and need those kinds of 
services. That is offered in light of the fact that we are not 
providing the resources to serve our veterans.
  That is something worthy of debate on the floor of the Senate. It 
seems to me that has a lot more priority for debate and discussion and 
decision by this body than the special interest legislation that we are 
considering with the National Rifle Association.
  I ask whether the Senator would not agree with me on that?
  Mr. DURBIN. I agree. I ask the Senator from Massachusetts another 
question about this bill. The Senator raises an important point. If a 
gun dealer in the United States sells a gun to someone----
  The PRESIDING OFFICER. If the Senator from Illinois will suspend, the 
Senator from Massachusetts wanted to be informed when he had 3 minutes 
left. He has 3 minutes 10 seconds.
  Mr. KENNEDY. I thank the Chair.
  Mr. DURBIN. If a gun dealer in the United States has a history of 
selling guns to criminals--in other words, someone comes in and buys 
100 Saturday night specials, ``fill up my trunk with guns''--obviously, 
not a sportsman or hunter or someone interested in personal defense, 
but someone who comes in and buys clearly for guns to be sold through 
straw purchasers to others--if the gun dealer has not even taken the 
time to check the FBI's Most Wanted list when making a sale across the 
counter, is this legislation saying that dealer, so negligent in his 
conduct, cannot be held personally responsible, or responsible as a 
business, in court for the victims of the gun violence that follows 
from that negligent act?
  Mr. KENNEDY. The Senator makes an absolutely accurate point. We have 
here a list from the FBI of the Most Wanted fugitives. There is an 
amendment to say at least they have to look at the FBI's Most Wanted 
fugitives. Under this legislation, if the gun dealer sells it to one of 
the Most Wanted, they still get a free pass.
  Under the current legislation, we are not even asking them to look on 
the Internet for those who are going to be listed on the Internet as 
members of terrorist organizations. We are not even asking them to do 
that. If they do, and they sell it, as we saw from the al-Qaida book 
over in Afghanistan saying go on in there and purchase it because you 
are not going to be bothered--we are not even holding them accountable 
to do that. Is that what we want to do, when we have seen what has 
happened in London, and what is

[[Page 18904]]

happening, and we appropriate more and more resources for homeland 
security, not even to require that the gun dealer is going to check the 
Most Wanted list of the FBI?
  We can't even offer that amendment so it will be voted on. We are 
being blocked by the power interests on the other side from even having 
the Senate consider that amendment. That is the power of the NRA. They 
are not letting any of these kinds of amendments dealing with the Most 
Wanted list or the terrorist list--we can't even get it before the 
Senate. That is the lock, the hold that the NRA has. It is disgraceful.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Massachusetts yields the 
floor. The Democratic side has 30 seconds remaining.
  The Senator from Illinois.
  Mr. DURBIN. Mr. President, I ask unanimous consent to be recognized 
to conclude the morning business.
  I think the Senator from Massachusetts has laid out the case. Can you 
imagine? We took the bill off the floor for the Department of Defense, 
for our soldiers and their families, and said we didn't have time to 
finish it this week because we had to go to this bill, the National 
Rifle Association's most important bill, which says that gun 
manufacturers and gun dealers selling their firearms to those on the 
FBI Most Wanted list, or to those in terrorist organizations, would not 
be held accountable for their misconduct? Where are the priorities of 
this Senate?
  The PRESIDING OFFICER. The time on the Democratic side has expired. 
Who seeks recognition? The Senator from Utah.
  Mr. HATCH. Mr. President, I have heard a lot of arguments on the 
floor in my day, but some of these arguments are some of the worst ever 
heard. I don't know, maybe I missed something. We were moving ahead on 
the Defense authorization bill when all of a sudden we couldn't get 
cloture. We couldn't move ahead because of the very people who have 
been making these arguments, in a holy fashion, that they want to help 
our soldiers. Yet they filibuster by preventing cloture and preventing 
a full acceptance of the Department of Defense authorization bill, and 
then turn around and say we stopped them from amending the bill. If 
they were stopped, it is because their amendments were not germane.
  I have never heard arguments like this, that we are just going to 
give gun dealers an absolute right to violate the law. They haven't 
read this legislation at all.
  And then they bring in an antiter-
rorism argument. What they do not tell the American public is that 
there are millions of guns out there in the underworld that people can 
get. But that doesn't justify holding liable gun manufacturers--who 
manufacture guns for our soldiers, by the way; if they all go broke we 
will not have the guns for our soldiers--when somebody takes one of 
their guns and misuses it. The person misusing it ought to be liable, 
not the gun manufacturer who cannot supervise the persons to whom they 
legitimately sold guns.
  Let's face it. The folks on that side of the aisle hate guns. They 
talk in terms of, We want to take care of our hunters and our gun 
collectors and people who love guns who are decent, law-abiding 
citizens. But look over the years how they have argued against anything 
that makes sense with regard to the right to manufacture weapons that 
we have always had in this country, and the right to keep and bear 
arms, which is explicitly in the Constitution. These are the same 
people who are constantly arguing about things that are not explicitly 
in the Constitution, claiming that they should be given the 
sanctification of constitutional protection. Yet something that is 
expressly written in the Constitution, they turn around and blast.
  I could spend a lot of time on that, but that is not what I came over 
here to do. All I can say is I find it amazing that an argument would 
be made, after they voted against cloture--in other words, proceeding 
with the Defense authorization bill, they voted against proceeding--and 
now they are saying, Why didn't we proceed. I missed something maybe. 
But I don't think so. This is just typical: Politics trumps everybody. 
No one is saying, with regard to this issue of the gun manufacturer's 
right to manufacture guns that are legal, they have a legal right to do 
so--nobody is making the argument that dealers who are honest and 
decent and honorable should not be able to sell those guns to decent, 
honorable people. We have plenty of restrictions already in law against 
illegality with regard to the sale of weapons.
  My gosh, is there no end to politics in these issues? This argument 
that this modest bill gives criminals a free pass and aids and abets 
terrorists is as phony an argument as I have heard. And the argument 
that it lets manufacturers off the hook for their wrongdoing--if they 
do wrong, they are on the hook under this bill.
  They are not doing wrong. That is the problem. What is wrong is the 
chief fundraiser of our friends on the left happens to be--the chief 
hard-money funder in this country happens to be the personal injury 
trial lawyer for liberals. And those people literally are the reason 
why we have these, I think, misconceived arguments.
  I could not sit here without saying something about it because it is 
hard to believe that they can stand and make these kinds of arguments. 
Much as I respect my fellow Senators, it is mind-boggling that they can 
make an argument that we are preventing going ahead with the DOD bill 
when they are the ones who stopped it. My gracious. Let me shift gears. 
I could talk for hours on that subject.

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