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Document 52023PC0403

Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the Northwest Atlantic Fisheries Organisation and repealing Decision (EU) 2019/863

COM/2023/403 final

Brussels, 11.7.2023

COM(2023) 403 final

2023/0280(NLE)

Proposal for a

COUNCIL DECISION

on the position to be taken on behalf of the European Union in the Northwest Atlantic Fisheries Organisation and repealing Decision (EU) 2019/863


EXPLANATORY MEMORANDUM

1.Subject matter of the proposal

This proposal concerns a Decision establishing the position to be taken on the behalf of the European Union at meetings of the Northwest Atlantic Fisheries Organisation (NAFO) for the period 2024‑2028 in connection with the envisaged adoption of conservation and management measures.

2.Context of the proposal

2.1.Convention on Cooperation in the Northwest Atlantic Fisheries

The Convention on Cooperation in the Northwest Atlantic Fisheries (NAFO Convention) aims, by establishing the NAFO, to contribute, through consultation and cooperation, to the optimum utilisation, rational management and conservation of the fishery resources of the NAFO Convention area (the Regulatory Area). The Convention entered into force on 1 January 1979 and has been amended four times.

The fourth amendment, which entered into force on 18 May 2017, was designed to modernise NAFO, particularly by:

·incorporating an ecosystem approach to fisheries management;

·streamlining NAFO’s decision-making process;

·strengthening the obligations of the contracting parties, flag states and port states; and

·establishing a formal dispute settlement mechanism.

The EU is a party to the NAFO Convention, having approved it under Regulation (EEC) N3179/78 1 . It ratified the fourth amendment of the Convention by Council Decision 2010/717/EU 2 .

2.2.Commission of the Northwest Atlantic Fisheries Organisation

The Commission of the Northwest Atlantic Fisheries Organisation (NAFO Commission) is the body established by the NAFO Convention to be responsible for the management and conservation of fishery resources in the regulatory area. It adopts conservation and enforcement measures to achieve optimum utilisation of the fishery resources for which it is responsible under its purview.

As a member of the NAFO Commission, the EU is entitled to participate in, and vote on, its decisions. The NAFO Commission takes its decisions by consensus.

2.3.NAFO decisions

The NAFO Commission has the authority to adopt conservation and enforcement measures for the fisheries for which it is responsible and these are binding on the contracting parties.

In accordance with Article XIV.1 of the NAFO Convention, the measures enter into force 60 days after the date on which the contracting parties are notified of them by the NAFO. Any contracting party that presents an objection to a measure within 60 days of being notified is not bound by the measure.

3.Position to be taken on the EU’s behalf

The position to be adopted on behalf of the EU at the annual meetings of regional fisheries management organisations (RFMOs) is currently established according to a two‑tier approach. A Council Decision sets out the guiding principles of the EU’s position on a multiannual basis and it is subsequently adjusted for each annual meeting by Commission services non-papers to be endorsed by the Council.

For the NAFO, this approach is implemented by Council Decision (EU) 2019/863 of 19 May 2019, which sets out the EU’s position in the NAFO for the period 2019-2023. The Decision contains general principles, but also takes into account as far as possible the specific features of the NAFO. In addition, it sets out the standard process for establishing the EU’s position year by year, as requested by Member States.

Council Decision (EU) 2019/863 incorporated the principles of the new common fisheries policy, as laid down in Regulation (EU) No 1380/2013 of the European Parliament and of the Council 3 , also taking into account the objectives set out in the Commission Communication on the external dimension of the common fisheries policy 4 . Moreover, it adjusted the EU’s position to the Treaty of Lisbon.

Council Decision (EU) 2019/863 provides for an assessment, and where appropriate, revision of the EU’s position before the 2024 annual meeting. Therefore, this proposal sets out the EU’s position in the NAFO for the period 2024-2028, thereby replacing Council Decision (EU) 2019/863.

The current revision takes into consideration, in relation to fishing, the European Green Deal, notably Biodiversity 5 , Climate Adaptation 6 and Farm to Fork Strategies 7 . It also takes into account the Plastics Strategy 8 and the Zero pollution Action Plan 9 . Furthermore, it also takes into consideration, the International Ocean Governance Joint Communication 10 .

4.Legal basis

4.1.Procedural legal basis

4.1.1.Principles

Article 218(9) of the Treaty on the Functioning of the European Union (TFEU) provides for decisions establishing ‘the positions to be adopted on the EU’s behalf in a body set up by an agreement, when that body is called upon to adopt acts having legal effects, with the exception of acts supplementing or amending the institutional framework of the agreement’.

Acts having legal effects’ include acts that have legal effects by virtue of the rules of international law governing the body in question, and instruments that do not have a binding effect under international law, but are ‘capable of decisively influencing the content of the legislation adopted by the EU legislature 11 .

4.1.2.Application to the present case

The NAFO Commission is a body set up by an agreement, namely the NAFO Convention.

The acts that the NAFO Commission is called on to adopt constitute acts having legal effects. The envisaged acts are to be binding under international law in accordance with Article XIV of the NAFO Convention and are capable of decisively influencing the content of EU legislation, including:

·Council Regulation (EC) No 1005/2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing 12 ;

·Council Regulation (EC) No 1224/2009 establishing a Community control system for ensuring compliance with the rules of the common fisheries policy 13 ;

·Regulation (EU) 2017/2403 of the European Parliament and of the Council of 12 December 2017 on the sustainable management of external fishing fleets 14 , and

·Regulation (EU) 2019/833 of the European Parliament and of the Council of 20 May 2019 laying down conservation and enforcement measures applicable in the Regulatory Area of the Northwest Atlantic Fisheries Organisation, amending Regulation (EU) 2016/1627 and repealing Council Regulations (EC) No 2115/2005 and (EC) No 1386/2007 15

The envisaged acts do not supplement or amend the institutional framework of the NAFO Convention.

Therefore, the procedural legal basis for the proposed Decision is Article 218(9) TFEU.

4.2.Substantive legal basis

4.2.1.Principles

The substantive legal basis for a Decision under Article 218(9) TFEU depends primarily on the objective and content of the envisaged act in respect of which a position is taken on the EU’s behalf. If that act pursues two aims or has two components, and if one of those aims or components is identifiable as the main one, whereas the other is merely incidental, the Decision under Article 218(9) TFEU must be founded on a single substantive legal basis, namely that required by the main or predominant aim or component.

4.2.2.Application to the present case

The main objective and content of the envisaged act relate to fisheries. The legal basis setting out the principles to be reflected in this position is Regulation (EU) No 1380/2013.

Therefore, the substantive legal basis of the proposed Decision is Article 43(2) TFEU. The Decision will replace Council Decision (EU) 2019/863, which covers the period 2019-2023.

4.3.Conclusion

The legal basis of the proposed Decision should be Article 43(2) TFEU, in conjunction with Article 218(9) TFEU.

2023/0280 (NLE)

Proposal for a

COUNCIL DECISION

on the position to be taken on behalf of the European Union in the Northwest Atlantic Fisheries Organisation and repealing Decision (EU) 2019/863

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 43(2), in conjunction with Article 218(9) thereof,

Having regard to the proposal from the European Commission,

Whereas:

(1)By Council Regulation (EEC) No 3179/78 16 , the Union concluded the Convention on Cooperation in the Northwest Atlantic Fisheries (NAFO Convention), which established the Northwest Atlantic Fisheries Organisation (NAFO). Pursuant to Council Decision 2010/717/EU 17 , the Union concluded the fourth amendment to the NAFO Convention that established the Commission of the Northwest Atlantic Fisheries Organisation (NAFO Commission).

(2)The NAFO Commission adopts measures to ensure the long-term conservation and sustainable use of the fishery resources in the NAFO Convention area (‘the regulatory Area’) and to safeguard the marine eco-systems in which these resources occur. Such measures may become binding upon the Union. 

(3)Regulation (EU) No 1380/2013 of the European Parliament and of the Council 18  provides that the Union is to ensure that fishing and aquaculture activities are environmentally sustainable in the long-term and are managed in a way that is consistent with the objectives of achieving economic, social and employment benefits, and of contributing to the availability of food supplies. It also provides that the Union is to apply the precautionary approach to fisheries management, and is to aim to ensure that exploitation of living marine biological resources restores and maintains the population of harvested species above levels, which can produce the maximum sustainable yield. It further provides that the Union is to take management and conservation measures based on best available scientific advice, to support the development of scientific knowledge and advice, to gradually eliminate discards and to promote fishing methods that contribute to more selective fishing and the avoidance and reduction, as far as possible, of unwanted catches, to fishing with low impact on marine ecosystem and fishery resources. Besides, Regulation (EU) No 1380/2013 specifically provides that those objectives and principles are to be applied by the Union in the conduct of its external fisheries relations.

(4)In line with the Biodiversity 19 , Climate Adaptation 20 and Farm to Fork Strategies 21 , it is essential to protect nature and reverse the degradation of ecosystems. The risks stemming from climate change and loss of biodiversity must not jeopardise the availability of the goods and services that healthy marine ecosystems provide to fishers, coastal communities and humanity at large.

(5)The Plastics Strategy 22 refers to specific measures to reduce plastics and marine pollution as well as the loss or abandonment at sea of fishing gear. Furthermore, the Zero pollution Action Plan 23 aims at reducing by 50% plastic litter at sea and by 30% micro-plastics released into the environment.

(6)Under the International Ocean Governance Joint Communication 24 , marine biodiversity protection and conservation are key priorities under the EU’s external action The EU is the most prominent actor in Regional Fisheries Management Organisations (RFMOs) and fisheries bodies worldwide. There, the EU promotes the sustainability of fish stocks, promotes transparent decision-making based on sound scientific advice, enhances scientific research, and strengthens compliance. 

(7)It is appropriate to establish the position to be taken on the Union’s behalf in the meetings of the NAFO Commission for the period 2024-2028, as the NAFO conservation and enforcement measures may be binding on the Union and capable of decisively influencing the content of Union law, namely, Council Regulation (EC) No 1005/2008 25 ; Council Regulation (EC) No 1224/2009 26 ; and Regulation (EU) 2017/2403 of the European Parliament and of the Council 27 , and Regulation (EU) 2019/833 of the European Parliament and of the Council.

(8)Currently, the position to be taken on the Union’s behalf in the meetings of the NAFO Commission is established by Council Decision (EU) 2019/863. it is appropriate to repeal that Decision and establish a new Decision for the period 2024-2028.

(9)In view of the evolving nature of fishery resources in the Regulatory Area and the consequent need for the Union’s position to take account of new developments, including new scientific and other relevant information presented before or during the meetings of the NAFO Commission, procedures should be established for the year-to-year specification of the Union’s position for the period 2024-2028. Those positions should be in line with the principle of sincere cooperation among the Union institutions enshrined in Article 13(2) of the Treaty on the European Union.

HAS ADOPTED THIS DECISION:

Article 1

The position to be taken on the Union’s behalf in the meetings of the Northwest Atlantic Fisheries Organisation (NAFO) Commission is set out in Annex I of this Decision.

Article 2

The year-to-year specification of the Union’s position to be taken in the meetings of the NAFO Commission shall be conducted in accordance with Annex II.

Article 3

The Union’s position set out in Annex I shall be assessed and, where appropriate, revised by the Council upon a proposal from the Commission, at the latest for the annual meeting of the NAFO Commission in 2029.

Article 4

Decision (EU) 2019/863 is repealed.

Article 5

This Decision is addressed to the Commission.

Done at Brussels,

   For the Council

   The President

(1)

   Council Regulation (EEC) No 3179/78 of 28 December 1978 concerning the conclusion by the European Economic Community of the Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries (OJ L 378, 30.12.1978, p. 1).

(2)    Council Decision 2010/717/EU of 8 November 2010 on the approval, on behalf of the European Union, of the Amendment to the Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries (OJ L 321, 7.12.2010, p. 1).
(3)    Regulation (EU) No 1380/2013 of the European Parliament and of the Council on the Common Fisheries Policy, amending Council Regulations (EC) No 1954/2003 and (EC) No 1224/2009 and repealing Council Regulations (EC) No 2371/2002 and (EC) No 639/2004 and Council Decision 2004/585/EC (OJ L 354, 28.12.2013, p. 22).
(4)    COM(2011) 424, 13.7.2011.
(5)    Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, EU Biodiversity Strategy for 2030 Bringing nature back into our lives (COM/2020/380).
(6)    Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Forging a climate-resilient Europe — the new EU Strategy on Adaptation to Climate Change (COM(2021) 82 final).
(7)    Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, A Farm to Fork Strategy for a fair, healthy and environmentally-friendly food system (COM/2020/381)
(8)    Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, A European Strategy for Plastics in a Circular Economy COM(2018) 28 final.
(9)    Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Pathway to a Healthy Planet for All EU Action Plan: 'Towards Zero Pollution for Air, Water and Soil COM/2021/400 final
(10)    Joint communication to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Setting the course for a sustainable blue planet JOIN/2022/28 final.
(11)    Judgment of the Court of Justice of 7 October 2014, Germany v Council, C-399/12, ECLI:EU:C:2014:2258, paragraphs 61 to 64.
(12)    OJ L 286, 29.10.2008, p. 1.
(13)    OJ L 343, 22.12.2009, p. 1.
(14)    OJ L 347, 28.12.2017, p. 81.
(15)    OJ L 141, 28.5.2019, p. 1.
(16)    Council Regulation (EEC) No 3179/78 of 28 December 1978 concerning the conclusion by the European Economic Community of the Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries (OJ L 378, 30.12.1978, p. 1).
(17)    Council Decision 2010/717/EU of 8 November 2010 on the approval, on behalf of the European Union, of the Amendment to the Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries (OJ L 321, 7.12.2010, p. 1).
(18)    Regulation (EU) No 1380/2013 of the European Parliament and of the Council of 11 December 2013 on the Common Fisheries Policy, amending Council Regulations (EC) No 1954/2003 and (EC) No 1224/2009 and repealing Council Regulations (EC) No 2371/2002 and (EC) No 639/2004 and Council Decision 2004/585/EC (OJ L 354, 28.12.2013, p. 22).
(19)    Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, EU Biodiversity Strategy for 2030 Bringing nature back into our lives (COM/2020/380).
(20)    Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Forging a climate-resilient Europe — the new EU Strategy on Adaptation to Climate Change (COM(2021) 82 final).
(21)    Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, A Farm to Fork Strategy for a fair, healthy and environmentally-friendly food system (COM/2020/381)
(22)    Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, A European Strategy for Plastics in a Circular Economy COM(2018) 28 final.
(23)    Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Pathway to a Healthy Planet for All EU Action Plan: 'Towards Zero Pollution for Air, Water and Soil COM/2021/400 final.
(24)    Joint communication to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Setting the course for a sustainable blue planet JOIN/2022/28 final.
(25)    Council Regulation (EC) No 1005/2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing, amending Regulations (EEC) No 2847/93, (EC) No 1936/2001 and (EC) No 601/2004 and repealing Regulations (EC) No 1093/94 and (EC) No 1447/1999 (OJ L 286, 29.10.2008, p. 1).
(26)    Council Regulation (EC) No 1224/2009 of 20 November 2009 establishing a Union control system for ensuring compliance with the rules of the common fisheries policy, amending Regulations (EC) No 847/96, (EC) No 2371/2002, (EC) No 811/2004, (EC) No 768/2005, (EC) No 2115/2005, (EC) No 2166/2005, (EC) No 388/2006, (EC) No 509/2007, (EC) No 676/2007, (EC) No 1098/2007, (EC) No 1300/2008, (EC) No 1342/2008 and repealing Regulations (EEC) No 2847/93, (EC) No 1627/94 and (EC) No 1966/2006 (OJ L 343, 22.12.2009, p. 1).
(27)    Regulation (EU) 2017/2403 of the European Parliament and of the Council of 12 December 2017 on the sustainable management of external fishing fleets, and repealing Council Regulation (EC) No 1006/2008 (OJ L 347, 28.12.2017, p. 81).
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Brussels, 11.7.2023

COM(2023) 403 final

ANNEXES

to the

Proposal for a Council Decision

on the position to be taken on behalf of the European Union in the Northwest Atlantic Fisheries Organisation and repealing Decision (EU) 2019/863


ANNEX I

The position to be taken on the Union’s behalf in the Northwest Atlantic Fisheries Organisation (NAFO)

1.PRINCIPLES

In the framework of the NAFO, the Union shall:

(a)ensure that measures adopted within the NAFO are consistent with international law, and in particular with the provisions of the 1982 UN Convention on the Law of the Sea, the 1995 UN Agreement relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, the 1993 Agreement to promote compliance with international conservation and management measures by fishing vessels on the high seas, and the 2009 Food and Agriculture Organization Port State Measures Agreement;

(b)promote the objectives of the Agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ) and at the 15th Conference of the Parties to the Convention on Biological Diversity (COP 15), in particular as regards stepping up the protection of marine biodiversity and the protection of 30 % of the world’s ocean through marine protected areas;

(c)contribute to the implementation of European Green Deal, including the Biodiversity and Climate Adaptation Strategies, notably concerning the protection of nature, and Farm to Fork strategies, and a stronger Europe in the world;

(d)pursue the objectives of the Plastics Strategy and the Zero pollution Action plan, notably the reduction of plastics and marine pollution;

(e)act in accordance with the objectives and principles pursued by the Union within the common fisheries policy, notably through the precautionary approach and the aims related to the maximum sustainable yield as laid down in Article 2(2) of Regulation (EU) No 1380/2013, to promote the implementation of an ecosystem-based approach to fisheries management and limiting environmental impacts of fishing activities, to avoid and reduce, as far as, possible unwanted catches, and gradually eliminate discards, and to minimise the impact of fishing activities on marine ecosystems and their habitats, as well as, through the promotion of economically viable and competitive Union fisheries, to provide a fair standard of living for those who depend on fishing activities and take account of the interests of consumers;

(f)be in line with the Council Conclusions of 19 March 2012 on the Commission Communication on the external dimension of the common fisheries policy 1 ;

(g)be in line with the objectives of the Joint Communication on the EU’s International Ocean Governance agenda 2 regarding marine biodiversity conservation, as well as the Council conclusions on that Joint Communication; 3  

(h)work towards an appropriate involvement of stakeholders in the preparation phase for NAFO measures and ensure that measures adopted within the NAFO are in accordance with the objectives of the NAFO Convention;

(i)promote positions consistent with the best practices of regional fisheries management organisations (RFMOs);

(j)seek consistency and synergy with the policy that the Union is pursuing as part of its bilateral fisheries relations with third countries, and ensure coherence with its other policies notably in the field of external relations, environment, trade, development, research and innovation;

(k)aim to create a level playing field for the Union fleet within the NAFO regulatory area based on the same principles and standards as those applicable under Union law, and to promote the uniform implementation of those principles and standards;

(l)promote coordination between the NAFO, existing RFMOs and regional sea conventions (RSCs) and cooperation with global organisations, as applicable, within their mandates, where appropriate;

(m)promote cooperation mechanisms amongst non-tuna RFMOs similar to the so-called Kobe process for tuna RFMOs.

2.ORIENTATIONS

The Union shall, where appropriate, endeavour to support the adoption of the following actions by the NAFO:

(a)measures to promote the conservation and full restoration of biodiversity, the sustainability of the stocks, and the integration of climate change considerations in the decision-making process;

(b)conservation and management measures for fisheries resources in the NAFO regulatory area based on the best scientific advice available, and the precautionary approach including Total Allowable Catches and quotas or effort regulation in fisheries harvesting living marine biological resources regulated by the NAFO, which would achieve the maximum sustainable yield. Where necessary, specific measures for stocks, which suffer from overfishing shall be considered in order to keep the fishing effort in line with available fishing opportunities;

(c)measures to promote data collection, scientific research and science-based management decisions, the strengthening of its compliance committee, a culture of compliance and periodical independent performance reviews;

(d)measures to prevent, deter and eliminate illegal, unreported and unregulated (IUU) fishing activities in the regulatory area, including IUU vessel listing, and cross-listing with other RFMOs, and measures to promote the traceability of fish and fishery products based on the Voluntary Guidelines for Catch Documentation Schemes;

(e)monitoring, control and surveillance measures in the NAFO regulatory area in order to ensure efficiency of control and compliance with measures adopted within the NAFO, including the strengthening of control on transhipment operations based on the FAO Voluntary Guidelines for Transhipment;

(f)measures to minimise the negative impact of fishing activities on marine biodiversity and marine ecosystems and their habitats, including protective measures for vulnerable marine ecosystems in the regulatory area in line with the NAFO Convention, while taking into account the FAO International Guidelines for the Management of Deep-sea Fisheries in the High Seas, measures to avoid and reduce as far as possible unwanted catches, including in particular vulnerable marine species, and to gradually eliminate discards;

(g)measures to reduce marine pollution and prevent the discharge of plastics at sea and reduce the impact on marine biodiversity and ecosystems of plastics present at sea, including measures to reduce the impact of Abandoned, Lost or Otherwise Discarded Fishing Gear (ALDFG) in the ocean and to facilitate the identification and recovery of such gear based on the FAO Voluntary Guidelines on the Marking of Fishing Gear;

(h)measures aimed at the prohibition of fisheries conducted solely for the purpose of harvesting shark fins and requiring that all sharks are landed with each fin naturally attached;

(i)recommendations, where appropriate and to the extent permitted under the relevant constituent documents, encouraging the implementation of the Work in Fishing Convention of the International Labour Organisation (ILO);

(j)common approaches with other RFMOs, where appropriate, in particular those involved in fisheries management in the same region;

(k)developing approaches related to tackling impacts of non-fishing activities on the marine biological resources in the regulatory area;

(l)additional technical measures based on advice from the subsidiary bodies and working groups of NAFO.

ANNEX II

Year to year specification of the Union’s position to be taken

at meetings of the Northwest Atlantic Fisheries Organisation

Before each meeting of the NAFO Commission, when that body is called upon to adopt decisions having legal effects on the Union, the necessary steps shall be taken so that the position to be expressed on the Union's behalf takes account of the latest scientific and other relevant information transmitted to the Commission, in accordance with the principles and orientations set out in Annex I.

To this effect, and based on that information, the Commission shall transmit to the Council, or to its preparatory bodies, in sufficient time before each meeting of the NAFO Commission, a written document setting out the particulars of the proposed specification of the Union’s position for discussion and endorsement of the details of the position to be expressed on the Union's behalf.

If in the course of a NAFO Commission meeting it is impossible to reach an agreement, including on the spot, the matter shall be referred to the Council or its preparatory bodies in order for the Union’s position to take account of new elements.

(1)    7087/12 REV 1 ADD 1 COR 1.
(2)    JOIN/2022/28 final of 24.06.2022.
(3)    15973/22 of 13.12.2022.
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