Trans-Pacific Partnership

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Trans-Pacific Strategic Economic Partnership Agreement
{{{image_alt}}}
Leaders of TPP member states and prospective member states at a TPP summit in 2010.
TypeTrade agreement
Drafted3 June 2005[1][2]
Signed18 July 2005[3][4][5]
LocationWellington, New Zealand
Effective28 May 2006 (New Zealand and Singapore); 12 July 2006 (Brunei); 8 November 2006 (Chile)[6]
Condition2 ratifications
Parties4 (Brunei, Chile, Singapore and New Zealand)
DepositaryGovernment of New Zealand
LanguagesEnglish and Spanish, in event of conflict English prevails
 
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Trans-Pacific Strategic Economic Partnership Agreement
{{{image_alt}}}
Leaders of TPP member states and prospective member states at a TPP summit in 2010.
TypeTrade agreement
Drafted3 June 2005[1][2]
Signed18 July 2005[3][4][5]
LocationWellington, New Zealand
Effective28 May 2006 (New Zealand and Singapore); 12 July 2006 (Brunei); 8 November 2006 (Chile)[6]
Condition2 ratifications
Parties4 (Brunei, Chile, Singapore and New Zealand)
DepositaryGovernment of New Zealand
LanguagesEnglish and Spanish, in event of conflict English prevails

The 2005 Trans-Pacific Strategic Economic Partnership Agreement (TPSEP or P4) is a trade agreement[7] among Brunei, Chile, New Zealand, and Singapore. Its purported aims are to further liberalise the economies of the Asia-Pacific region.[8]

Since 2010, negotiations have been taking place[9] for the Trans-Pacific Partnership (TPP), a proposal for a significantly expanded version of TPSEP. The TPP is a proposed trade agreement under negotiation by (as of August 2013) Australia, Brunei, Chile, Canada, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States, and Vietnam.[10]

The TPP is ostensibly intended to be a "high-standard" agreement aimed at emerging trade issues in the 21st century.[11] These ongoing negotiations have drawn criticism and protest from the public, advocacy groups, and elected officials, in part due to the secrecy of the negotiations, the expansive scope of the agreement, and controversial clauses in drafts leaked to the public.

On November 13, 2013, a complete draft of the treaty's Intellectual Property Rights chapter was published by WikiLeaks.[12]

Membership and accession[edit]

  Current P-4 countries
  Negotiating countries

The negotiations to set up the TPSEP initially included three countries (Chile, New Zealand and Singapore), and Brunei subsequently joined the agreement. The original TPSEP agreement contains an accession clause and affirms the members' "commitment to encourage the accession to this Agreement by other economies".

In January 2008 the United States agreed to enter into talks with the P4 members regarding liberalisation of trade in financial services.[13] Then, on 22 September 2008, US Trade Representative Susan C. Schwab announced that the United States would begin negotiations with the P4 countries to join the TPP, with the first round of talks in early 2009.[14]

In November 2008, Australia, Vietnam, and Peru announced that they would join the P4 trade bloc.[15][16] In October 2010, Malaysia announced that it had also joined the TPP negotiations.[17][18][19]

In June 2012, Canada and Mexico announced joining TPP negotiations.[20][21][22][23][24] Mexico's interest in joining was initially met with concern among TPP negotiators about its customs policies.[25]

Two years earlier, Canada became an observer in the TPP talks, and expressed interest in officially joining,[26] but was not committed to join, purportedly because the United States and New Zealand blocked it due to concerns over Canadian agricultural policy (i.e. supply management)—specifically dairy—and intellectual property-rights protection.[25][27] Several pro-business and internationalist Canadian media outlets raised concerns about this as a missed opportunity. In a feature in the Financial Post, former Canadian trade-negotiator Peter Clark claimed that the US Obama Administration had strategically outmaneuvered the Canadian Harper Government. Wendy Dobson and Diana Kuzmanovic for The School of Public Policy, University of Calgary, argued for the economic necessity of the TPP to Canada.[28] Embassy warned that Canada's position in APEC could be compromised by being excluded from both the US-oriented TPP and the proposed China-oriented ASEAN +3 trade agreement (or the broader Comprehensive Economic Partnership for East Asia).[18][19][29]

Canada and Mexico formally became TPP negotiating participants in October 2012, following completion of the domestic consultation periods of the other nine members.[30][31][32]

Members[edit]

Country/RegionStatusDate
 BruneiOriginal SignatoryJune 2005
 ChileOriginal SignatoryJune 2005
 New ZealandOriginal SignatoryJune 2005
 SingaporeOriginal SignatoryJune 2005
 United StatesNegotiatingFebruary 2008
 AustraliaNegotiatingNovember 2008
 PeruNegotiatingNovember 2008
 VietnamNegotiatingNovember 2008
 MalaysiaNegotiatingOctober 2010
 MexicoNegotiatingOctober 2012
 Canada[33]NegotiatingOctober 2012
 JapanNegotiatingMarch 2013
 TaiwanAnnounced InterestSeptember 2013
 South KoreaAnnounced InterestNovember 2013

Potential members[edit]

  Currently in negotiations
  Announced interest in joining
  Potential future members

Japan joined as an observer in the TPP discussions 13–14 November 2010, on the sidelines of the APEC summit in Yokohama.[34] Japan declared its intent to join the TPP negotiations on 13 March 2013 in an official announcement by Prime Minister Shinzō Abe on 15 March 2013 .[35] The TPP formally invited Japan to enter negotiations in April,[36] and Japan could become a full negotiating partner in August 2013.[37]

South Korea expressed interest in joining in November 2010,[38] and was officially invited to join the TPP negotiating rounds by the United States after the successful conclusion of its bilateral trade agreement with South Korea in late December.[39] The country already has bilateral trade agreements with some TPP members, but areas such as vehicle manufacturing and agriculture would still need to be agreed, thus making any further multilateral TPP negotiation somewhat complicated.[40]

Other countries that have expressed interest in TPP membership are Taiwan,[41] the Philippines,[42] Laos,[43] Colombia,[44] Costa Rica,[43] and Indonesia.[45] Cambodia,[46] Bangladesh[47] and India[48] have also been mentioned as a possible candidate. Despite initial opposition, China also has some interest in eventually joining the TPP.[49]

On 20 November 2012, Thailand's government announced that it wishes to join the Trans-Pacific partnership negotiations during a visit by President of the United States Barack Obama and if it follows the process for Canada and Mexico, Thailand will be in the extraordinary position of having to accept any existing agreed text, sight unseen.[50]

History[edit]

The TPSEP was previously known as the Pacific Three Closer Economic Partnership (P3-CEP), its negotiations launched on the sidelines of the 2002 APEC Leaders' Meeting in Los Cabos, Mexico, by Prime Ministers Helen Clark of New Zealand, Goh Chok Tong of Singapore and Chilean President Ricardo Lagos. Brunei first took part as a full negotiating party in the fifth round of talks in April 2005, after which the trade bloc became known as the Pacific-4 (P4). Although all original and negotiating parties are members of the Asia-Pacific Economic Cooperation (APEC), the TPSEP and TPP are not APEC initiatives. However, the TPP is considered to be a pathfinder for the proposed Free Trade Area of the Asia Pacific (FTAAP), an APEC initiative.

The original agreement was concluded by Brunei, Chile, New Zealand and Singapore on 3 June 2005,[2] and entered into force on 28 May 2006 for New Zealand and Singapore, 12 July 2006 for Brunei, and 8 November 2006 for Chile.[51] It is a comprehensive agreement, affecting trade in goods, rules of origin, trade remedies, sanitary and phytosanitary measures, technical barriers to trade, trade in services, intellectual property, government procurement and competition policy. Among other things, it called for reduction by 90 percent of all tariffs between member countries by 1 January 2006, and reduction of all trade tariffs to zero by the year 2015.[8]

On the last day of the 2010 APEC summit, leaders of the nine negotiating countries endorsed the proposal advanced by United States president Barack Obama that set a target for settlement of negotiations by the next APEC summit in November 2011.[52] However, negotiations have continued through 2012 and into 2013.

Negotiations[edit]

After the inauguration of Barack Obama in January 2009, the anticipated March 2009 negotiations were postponed. However, in his first trip to Asia in November 2009, president Obama reaffirmed the United States' commitment to the Trans-Pacific Partnership, and on 14 December 2009, new United States Trade Representative Ron Kirk notified Congress that president Obama planned to enter TPP negotiations "with the objective of shaping a high-standard, broad-based regional pact".[53]

Since that time, 19 formal rounds of TPP negotiations have been held:[54][55]

In the United States, the majority of so-called free trade agreements are implemented as congressional-executive agreements.[56] Unlike treaties, congressional-executive agreements require a majority of the House and Senate to pass.[56] Under "Trade Promotion Authority" (TPA), established by the Trade Act of 1974, Fast track (trade) Congress authorizes the President to negotiate "free trade agreements... if they are approved by both houses in a bill enacted into public law and other statutory conditions are met."[56] In early 2012, the Obama administration indicated that a requirement for the conclusion of TPP negotiations is the renewal of "fast track" Trade Promotion Authority.[57] If "fast track" is renewed, then the normal treaty ratification and implementation procedure would be bypassed, and the United States Congress would instead be required to introduce and vote on an administration-authored bill for implementing the TPP with minimal debate and no amendments, with the entire process taking no more than 90 days.[58]

In April 2013 APEC members proposed, along with setting a possible target for settlement of the TPP by the 2013 APEC summit, that World Trade Organisation (WTO) members set a target for settlement of the Doha Round mini-package by the ninth WTO ministerial conference (MC9), also to be held around the same time in Bali.[59]

This call for inclusion and cooperation between the WTO and economic partnership agreements (also termed regional trade agreements) like the TPP comes after the statement by Pierre Lellouche who described the sentiment of the Doha round negotiations; "Although no one wants to say it, we must call a cat a cat...".[60]

Controversy[edit]

Intellectual property provisions[edit]

There has been criticism[61][62][63] of some provisions relating to the enforcement of patents and copyrights alleged to be present in leaked copies of the US proposal for the agreement:

The proposals have been accused of being excessively restrictive, providing intellectual property restraints beyond those in the Korea-US trade agreement and Anti-Counterfeiting Trade Agreement (ACTA).[64] A coalition of non-profit organisations, businesses and over 100,000 people have spoken out through a campaign called "Stop The Trap".[65]

In July 2013, over 30 Internet freedom organizations including the Electronic Frontier Foundation and OpenMedia.ca, came together to call for a 'Fair Deal' on the TPP's intellectual property provisions. The coalition says proposals in the TPP would take a major toll on society, by restricting innovation and by forcing ISPs to police copyright. Over 15000 citizens have joined the Fair Deal campaign.[66] An "Internet Censorship" petition hosted by OpenMedia.ca has also received over 100,000 signatures.[67]

A number of United States Congresspeople,[68] including Senator Bernard Sanders[69] and Representatives Henry Waxman, Sander M. Levin, John Conyers, Jim McDermott,[70] John Lewis, Pete Stark, Charles B. Rangel, Earl Blumenauer, and Lloyd Doggett,[71] have expressed concerns about the effect the TPP requirements would have on access to medicine. In particular, they are concerned that the TPP focuses on protecting intellectual property to the detriment of efforts to provide access to affordable medicine in the developing world, particularly Vietnam, going against the foreign policy goals of the Obama administration and previous administrations.[68] Additionally, they worry that the TPP would not be flexible enough to accommodate existing non-discriminatory drug reimbursement programs and the diverse health systems of member countries.[71]

At a public forum on 6 July 2011, legal experts in New Zealand presented their concerns that the agreement could undermine law regarding Māori culture, genetic modification, copyright, and remove the subsidised medicine New Zealanders have access to through Pharmac.[72]

Opponents of the Trans-Pacific Partnership say US corporations are hoping to weaken Pharmac's ability to get inexpensive, generic medicines by forcing New Zealand to pay for brand name drugs.[73] Doctors and organisations like Medicins Sans Frontieres have also expressed concern.[74] The New Zealand Government denies the claims, Trade Negotiations Minister Tim Groser saying opponents of the deal are "fools" who are "trying to wreck this agreement".[75]

Ken Akamatsu, creator of Love Hina and Mahou Sensei Negima!, expressed concern the agreement could decimate the derivative dōjinshi (self-published) works prevalent in Japan. Akamatsu argues that the TPP "would destroy derivative dōjinshi. And as a result, the power of the entire manga industry would also diminish." Kensaku Fukui, a lawyer and a Nihon University professor, expressed concerns that the TPP could allow companies to restrict or stop imports and exports of intellectual property, such as licensed merchandise. For example, IP holders could restrict or stop importers from shipping merchandise such as DVDs and other related goods related to an anime or manga property into one country to protect local distribution of licensed merchandise already in the country via local licensors.[76]

At a NicoNico live seminar called How Would TPP Change the Net and Copyrights? An In-Depth Examination: From Extending Copyright Terms to Changing the Law to Allow Unilateral Enforcement and Statutory Damages, artist Kazuhiko Hachiya warned that cosplay could also fall under the TPP, and such an agreement could give law enforcement officials broad interpretive authority in dictating how people could dress up. Critics also have derided the agreement could also harm Japanese culture, where some segments have developed through parody works.[77]

Moreover, on 19 September 2012, Suzanne Nossel, executive director for Amnesty International USA, stated that TPP negotiations should show the public their cards and the draft text of the agreement. She also felt apprehensive about the freedom of speech and health. This is because TPP has the risk of restraining development and production of generic medicine by protecting patents.

Negotiation secrecy[edit]

On February 28, 2012, 23 organizations concerned with openness, scientific integrity, and accountability sent a letter to President Obama urging him to increase the transparency of the Trans-Pacific Partnership (TPP) Free Trade Agreement (FTA) negotiating process, arguing that public access is imperative given the fears that the compact may significantly limit public protections.[78] The issues being negotiated extend include "patent and copyright, land use, food and product standards, natural resources, professional licensing, government procurement, financial practices, healthcare, energy, telecommunications, and other service sector regulations."[79] The secret process would establish policies binding on future U.S. Congresses and state legislatures on numerous non-trade subjects. The letter demands transparency on the front end of the pact. The signatories to this letter included OpenTheGovernment.org, Project On Government Oversight - POGO and ARTICLE 19, Global Campaign for Freedom of Expression and Information, among others.

In May 2012, a group of 30 legal scholars, critical of the Office of the United States Trade Representative's "biased and closed" TPP negotiation process and proposed intellectual property-related provisions, publicly called upon Ambassador Kirk to uphold democratic ideals by reversing the "dialing back" of stakeholder participation and to release negotiating texts for public scrutiny. The law professors claimed that leaked documents show that the USTR is "pushing numerous standards that [...] could require changes in current U.S. statutory law" and that the proposal is "manifestly unbalanced—it predominantly proposes increases in proprietor rights, with no effort to expand the limitations and exceptions to such rights that are needed in the U.S. and abroad to serve the public interest." Advocates also claim the USTR posts information on its web site that clouds the real picture on current trade agreements by omission of data found on other official US government web sites such as trade deficits, loss of domestic manufacturing facilities and jobs.

The group claimed that the negotiations excluded stakeholders such as "consumers, libraries, students, health advocacy or patient groups, or others users of intellectual property" and that it only offered "minimal representation of other affected businesses, such as generic drug manufacturers or Internet service providers."[80]

Kirk initially responded that he was "strongly offended by the assertion that our process has been non-transparent and lacked public participation" and that it was actually far more transparent than the negotiations for prior free trade agreements.[81]

Even though Kirk was offended by the accusation of non transparency, this is the official US government policy regarding trade negotiations. "As is common practice in US free trade negotiations, when TPP negotiations got underway in 2009, the United States and it's TPP negotiation partners entered into a confidentially agreement reflecting the customary understanding between countries engaged in trade negotiations that the negotiations should be carried out in private. The understanding calls for each government to disseminate it's negotiation proposals, as well as those from it's TPP partners solely to government officials and individuals who are part of the trade advisory process" This policy was on the USTR web site in 2012.

This prompted further criticism from the academic group that free-trade agreement negotiations, notorious for their secrecy, are "the wrong standard for assessing the legitimacy of the TPP intellectual property chapter negotiations. This is because the IP chapter in the TPP, like ACTA, is not a trade agreement. It does not adjust tariffs and quotas—it sets new international limits on domestic regulation, regardless of whether such regulation discriminates against, or even affects, trade."[81] The group further reiterated its claim that the secretive process is antithetical to the ideals of democracy, and is "no way to engender trust and faith in international law making with such a broad impact."[81] One critic pointed out that despite's Kirk's claim of transparency in the process, public-interest stakeholders have been completely excluded.[82] Another accused Kirk of sidestepping the issue of transparency, and pointed out that transparency is less about the degree of public input, and more about "the flow of information the other way—information about the workings of government being visible to the people it is supposed to represent."[83]

In a subsequent interview with Reuters, Kirk defended the secrecy, saying he believes the Office of the United States Trade Representative (USTR) has conducted "the most engaged and transparent process as we possibly could," but that "some measure of discretion and confidentiality" are needed "to preserve negotiating strength and to encourage our partners to be willing to put issues on the table they may not otherwise."[25] He dismissed the "tension" as natural and noted that when the Free Trade Area of the Americas drafts were released, negotiators were subsequently unable to reach a final agreement.[25]

On 23 May 2012, United States Senator Ron Wyden introduced S. 3225, proposed legislation that would require the Office of the United States Trade Representative to disclose its TPP documents to all members of Congress.[84] Wyden said the bill clarifies the intent of the 2002 legislation which was supposed to increase Congressional access to information about USTR activity, but which, according to Wyden, is being incorrectly interpreted by the USTR as justification to excessively limit such access.[85] Wyden asserted:

The majority of Congress is being kept in the dark as to the substance of the TPP negotiations, while representatives of U.S. corporations—like Halliburton, Chevron, PHRMA, Comcast, and the Motion Picture Association of America—are being consulted and made privy to details of the agreement. [...] More than two months after receiving the proper security credentials, my staff is still barred from viewing the details of the proposals that USTR is advancing. We hear that the process by which TPP is being negotiated has been a model of transparency. I disagree with that statement.[85]

Senator Elizabeth Warren (D-Mass) and Rep. Alan Grayson (D-Fla.) have criticized the Obama administration's secrecy policies on the Trans-Pacific Pact.[86][87]

On November 14 2013, in response to WikiLeaks publication of the Intellectual Property Rights chapter of the Trans-Pacific Partnership, Dr. Julia Willebrand, co-chair of the Green Party's International Committee, stated:[88]

The texts published by Wikileaks confirm our fears that the President has sided with multinational corporations over the needs of Americans and people in other nations. President Obama has kept the negotiations a secret, while allowing 600 corporate representatives to assist the U.S. Trade Representative in the TPP drafting process."

Investor–state arbitration[edit]

The leaked draft treaty also contains investor-state dispute settlement, which permits foreign investors who made an investment in the territory of a Party in accordance with its laws to submit a claim to arbitration under the arbitral rules of either International Centre for Settlement of Investment Disputes or United Nations Commission on International Trade Law. Tribunals are composed of three arbitrators. One is appointed by the investor, one by the state, and the third is usually chosen by agreement between the parties or their appointed arbitrators or selected by the appointing authority, depending on the procedural rules applicable to the dispute. The tribunal shall be subject to the consent of the disputing parties and conduct hearings open to the public. The tribunal will make available to the public documents relating to the dispute such as the notice of intent, the notice of arbitration, pleadings, memorials, minutes or transcripts of the hearings of the tribunal, where available; orders, awards and decisions of the tribunal.

Substantive standards of protection include regulation of direct and indirect expropriation, minimum standard of treatment, national treatment, most favoured nation treatment. Non-discriminatory regulatory actions by a Party that are designed and applied to achieve legitimate public welfare objectives, such as the protection of public health, safety, and the environment do not constitute violation of the treaty.

Critics of the investment protection regime argue that traditional investment treaty standards are incompatible with environmental law, human rights protection, and public welfare regulation, meaning that TPP will be used to force states to lower standards e.g., environmental and workers protection, or be sued for damages.[89] The Australian government's position against investor state dispute settlement has been argued to support the rule of law and national energy security.[90]

Polling[edit]

An NBC News-Wall Street Journal poll from September 2010 revealed that “the impact of trade and outsourcing is one of the only issues on which Americans of different classes, occupations and political persuasions agree” with 86% believing that outsourcing jobs “a top cause of our economic woes,” and 69% indicating that "free trade agreements between the United States and other countries cost the U.S. jobs." Only 17% of Americans in 2010 felt that "free trade agreements" benefit the U.S., compared to 28% in 2007.[citation needed] A 2011 opinion poll showed the American public has moved from "broad opposition" to "overwhelming opposition" toward NAFTA-style trade deals.[citation needed]

A poll conducted in December 2012 showed 64 percent of New Zealanders thought trade agreements that allow corporations to sue governments, such as the TPP, should be rejected.[91]

Anti-globalization[edit]

Anti-globalization advocates accuse the TPP of going far beyond the realm of tariff reduction and trade promotion, granting unprecedented power to corporations and infringing upon consumer, labour, and environmental interests.[92][93]

One widely republished article claims the TPP is "a wish list of the 1%" and that "of the 26 chapters under negotiation, only a few have to do directly with trade. The other chapters enshrine new rights and privileges for major corporations while weakening the power of nation states to oppose them."[93]

Protests and opposition[edit]

On 5 March 2012, a group of TPP protesters disrupted an outside broadcast of 7News Melbourne's 6 pm bulletin in Melbourne's Federation Square.[94]

In May of 2012 over 500 Occupy Dallas members marched from Addison Square to the Intercontinental Hotel, where former Dallas mayor and current USTR Ron Kirk was attending a TPP meeting. Even though local Dallas news media outlets were notified by several advocates of this news worthy event, it was not reported locally or by mainstream national media outlets. They claim the corporate owned news media often fails to report stories, that may be detrimental to corporate interest, the public needs to know in order to make good decisions and see it as threat to democracy. One Occupy member referenced monthly trade deficit numbers were reported in the 80's when those figures were small compared to current figures which have averaged over one million dollars every minute since 01/01/2000. Occupy Dallas members found out about this TPP meeting on the Al Jazeera International News Network.

On 7 July 2012, 200–300 people marched in a "Pots and Pans" protest march against TPP and the secret negotiations to the hotel where the negotiations were being held.[95] There was an alternative "People's Conference" held in the evening during the week.[96]

In September 2012 Internet freedom organisation OpenMedia and other groups launched the OpenTheTPP campaign. The website includes a tool that collects citizens comments they then project inside the TPP meetings for officials to see.

Avaaz, an online petition website, has a petition against the TPP. As of December 8th 2013, the petition has gained over 1,188,473 signatures. [97]

The Occupy movement has also formed a protest rally against the TPP.[98]

In New Zealand a coalition of people concerned about the TPP have formed a group called It's Our Future[99] aimed to raise public awareness about, and resistance against the TPP prior to the Auckland round of negotiations from 3–12 December 2012.[100]

Starting at first in New Zealand and then connecting with organizations and people internationally, a group of individuals from the fields of Internet policy, art, information technology and law got together to discuss a TPP campaign with a copyright focus. What resulted was the idea of a fair deal, one that opens up trade opportunities for TPP member states but doesn’t force copyright and other IP-related changes that could damage society. Over 30 organizations and 15,000 individuals have signed up in support of this Our Fair Deal[101] campaign.

The Citizens Trade Campaign (CTC) provided a list of questions that have yet to be answered:[102]

  • Labor rights: Will the Trans-Pacific Partnership FTA include labor standards based on International Labor Organization conventions, and if included, how will they be enforced?
  • Investment Provisions: Will the Trans-Pacific Partnership FTA include so-called “investor-state” provisions that allow individual corporations to challenge environmental, consumer and other public interest policies as barriers to trade?
  • Public Procurement: Will the Trans-Pacific Partnership FTA respect nations’ and communities’ right to set purchasing preferences that keep taxpayer dollars re-circulating in local economies?
  • Access to Medicines: Will the Trans-Pacific Partnership FTA allow governments to produce and/or obtain affordable, generic medications for sick people?
  • Agriculture: Will the Trans-Pacific Partnership FTA allow countries to ensure that farmers and farm workers are fairly compensated, while also preventing the agricultural dumping that has forced so many family farmers off their land?

Nobel Prize-winning economist Joseph Stiglitz warned that the TPP presented "grave risks".[103]

A second leaked set of draft documents indicates that public concern has had little impact on the negotiations.[104] These documents also indicate there are strong disagreements between the United States and negotiating parties on the issues of intellectual property, agricultural subsidies, and financial services.[105]

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