Gilbane Building Company
Mixed ruling on construction-site fall hazards
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This order from 1993 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.
Plain-English summary
Gilbane Building Company was the construction manager responsible for overall safety at a large Pennsylvania project. The judge held Gilbane liable under the multi-employer worksite doctrine for hazards affecting subcontractor employees. He affirmed serious violations for a scaffold without guardrails and guardrail posts spaced more than eight feet apart, explaining that tying off to a wire rope did not replace the scaffold guardrails required by the standard. He also affirmed an other-than-serious violation for suspending temporary lights by wiring not designed for that use. Lifeline allegations were vacated because the rope served as a restraint that kept the employee away from the fall edge, and a separate guardrail-strength allegation was vacated for lack of proof. Total penalties were $4,500.
Decision snapshot
- Cited standard(s): 29 C.F.R. §§ 1926.104(c), 1926.451(d)(10), 1926.500(f)(1)(i), 1926.500(f)(1)(iv), and 1926.405(a)(2)(ii)(F)
- Outcome: Three items were affirmed, three related allegations were vacated, and total penalties of $4,500 were assessed.
- Key point: A controlling construction manager may be liable for subcontractor hazards, and personal tie-off does not substitute for scaffold guardrails when the standard specifically requires guardrails.
Full text (OSHRC public release)
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, WV. - 9th Floor
Washington, DC 20036-3419
fAX.
PHONE:
COM ,202)606-5050
COM(202)60&5100
F-7-S!202)60~5050
FTS(202)606-5100
SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 92-2782
GILBANE BUILDING COMPANY
Respondent.
NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was
docketed with the Commission on September 2, 1993. The decision of the Judge
will become a final order of the Commission on October 4, 1993 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such petition should be received by the Executive Secretary on or before
September 22, 1993 in order to permit sufficient time for its review. See
Commission Rule 91, 29 C.F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Revrew Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-34 19
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO5
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
havmg questions about review rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE COMMISSION
Date: September 2, 1993 Ray H. Darling, Jr.
Executive Secretary
DOCKET NO. 92.2782
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO5.
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
Marshall H. Harris, Esq.
Re ional Solicitor
Of&e of the Solicitor U.S. DOL
14480 Gatewa Build&g
3535 Market J treet
Philadelphia, PA 19104
‘James F. Sassaman, Director of
Safety
GBCA
36 South 18th Street
P.O. Box 15959
Philadelphia, PA 19103
John W. DiNicola, Es uire
Candice M. Gogean- r? oel, Esquire
Gilbane Building Company
7 Jackson Walkwa
Providence, RI 02B40
John H. Fwe, III
Administra&e Law Jud e
Occupational Safety an CKHealth
Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419
00102933280:03
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, NW. - 9th Floor
Washington, DC 20036-3419
PHONE:
COM(202)606-5100
FTS(202)60~5100
..
SECRETARY OF LABOR, ..
..
Complainant, ..
0
.
v. 0. Docket No. 92.2782
GILBANE BUILDING COMPANY
Respondent.
Appearances:
For Complainant For Respondent
Anita Eve Wright, Esq. James F. Sasaman
Office of the Solicitor Director of Safety
U.S. Department of Labor General Building Contractors Association, Inc
Philadelphia, Pennsylvania Philadelphia, PennsyMnia
John W. DiNbAa, Esq.
Vice President and General Counsel
Gilbane Building Company
Providence, Rhode Island
Before: Administrative Law Judge John H Frye, III
I INTRODUCTION
Respondent, Gilbane Building Company, is a construction contractor which had
overall responsibility as construction manager for the Sterling Drug project located in
Collegeville, Pennsylvania. As, a result of OSHA’s general schedule inspection of that
project conducted between April 21 and May 6, 1% Respondent was issued one serious
and one other-than-serious citation. The serious citation alleged five violations and the
other-than-serious alleged one violation of the Occupational Safety and Health Act of
1970, 29 U.S.C. 06 651-678, as amended (Act). Respondent contested these allegations.
Following the filing of a complaint and answer, a hearing was held on March 11, 1993.
This decision resolves the matters in contest between the parties concerning these
citations.
II OPINION
Respondent was issued the violations which are the subject of this proceeding
under the multi-employer worksite doctrine because Respondent was responsible for the
overall safety of employees at the worksite, despite the lack of direct exposure of any of
its employees to the alleged hazards and without regard to whether Respondent created
the hazardous situation. See Secretary v. Grossman Steel & Aliuninunt Copomtion, 4
BNA OSHC 1185 (Rev. Corn. 1975); Secretaryv. Anningdohnson Cornpony, 4 BNA
OSHC 1193 (Rev. Corn. 1975). Respondent has not contested the pfoposition that it was
responsible for overall safety at the worksite, nor has it contested the penalties assessed.
Respondent has defended against the citations by arguing that its witness, William
A. Boozer, is more credible than OSHA’s witness, CSHO Henry T. Doherty, Jr., and by
pointing to Respondent’s earnest and resolute promotion of safety on this jobsite. (See
Respondent’s brief, pp.2.5.) It is clear that Respondent has an outstanding and
successful safety program. CSHO Doherty recognized this. (See TR 80; RX 1.)
However, Respondent has advanced no reason generally to discount CSHO
Doherty’s testimony. Both he and Mr. Boozer were forthright, experienced in.
construction, and knowledgeable with regard to OSHA requirements. Moreover, the fact
that three violations were found in a project as large as the one in question should not be
taken as indicating that Respondent’s safety program is deficient or that OSHA made an
effort to allege violations where none existed. It strains credulity to assert that any
project of the size and complexity of this one could be conducted with no violations of
OSHA requirements.
2
1. Citation 1, Items l(a) and l(b) - Alleged Violation Of 29 CFR
1926.104(c) Pertaining to Lifelines.
Item l(a) was issued for a violation of 29 CFR 1926.104(c)’ because a
subcontractor’s employee allegedly used a fibrous rope, lacking a wire core, as a ifeline
in an area where it was subject to cutting by a drywall cart and by abrasion from the
cement column to which it was tied. The compliance officer testified that the employee
wore a safety belt with a lanyard which was hooked to an eye in the fibre core rope. The
employee received drywall as it was unloaded onto the fourth floor through the wall
opening, placed the drywall onto a cart, and moved it to work or storage areas on the
floor. (TR. 21-23; GX 2(a)). Item l(b) was issued because the employee allegedly used a
. defective wire rope for the same purpose. The Compliance Officer did not observe the
wire rope in use, but testified that the employee told him that he had used it but set it
aside in favor of the fibre rope which he liked better.2
At the hearing, some dispute arose as to whether the subject rope was a fall arrest
or a restraint device. CSHO Doherty testified that he made the determination that the
rope which is the subject of Citation 1, Item l(a) was a lifeline because he observed the
employee working in an area where he appeared to be exposed to a potential fall hazard.
1
Section104(c) provides:
We&es used on rock-scaling operations, or in area where the lifeline may be subjected to
cutting or abrasion, shall be a minimum of 7/84nch wire core manila rope. For all other
lifeline applications, a minimum of 3/4-inch manila or equivalent, with a minimum
breaking strength of 5,400 pounds, shall be used.
‘Respondent defended against this citation in part by casting doubt on the assertion that the wire rope was
used by the employee. Respondent’s witness, William Boozer, testified that he interviewed the masonry
contractor foreman following the conclusion of the inspection, and learned that the wire rope had been
used as part of a tag line system to control a load of scrap masonry material being moved so that the load
did not swing. (TR’l48).
3
CSH() Doherty had a conversation with the exposed employee, but he could not recall
whether the employee referred to the rope as his lifeline. However, because the
conversation included the discussion of safety belts and lanyards, he strongly believed that
the rope was identified as a lifeline during the conversation. (TR. 1164 17). To the
contrary, Respondent contended that the rope was an application of a restraint system
which Gilbane utilizes as a means to avoid the need for fall protection in its safety
program (Tr. at 134). Respondent’s witness William Boozer explained that the fibre
rope to which the employee had attached his lanyard was a restraint system which did
not permit the employee to reach a point where he needed a fall arrest system:
The rope was being used as a restraint device, it was tied to a column back
inside of the building, its measured out length, plus the length of the
lanyard of the gentleman who was tied to it was so measured out so that
the employee tied to it and could pull on it, he was maintained at least 3
feet back from the fall edge of the building.
(Tr. at 140). Mr. Doherty’s unverified assumption to the contrary must give way to this
unequivocal and unchallenged statement; the findings reflect the rope’s use as a restraint
system.
The Secretary maintains that OSHA regulations do not draw a distinction between
ropes used as fall protection and those used as part of a restraint system. Instead, a
lifeline is defined in Section 1926.107(c) as “a rope, suitable for supporting one person, to
which a lanyard or safety belt (or harness) is attached.” Thus, regardless of the
characterization given to the rope used by the employee with respect to Item l(a), the
rope met the definition set forth in Section 1926.107(a) and, given its exposure to cutting
and abrasion, use of the rope as a fall arrest system or a restraint device exposed the
4
employee to a fall hazard which could result in serious physical injuries in the event the
rope failed.
While the Secretary is correct that the standard in question does not separately
define a restraint system, that argument misses the point of the restraint system: to
prevent the employee’s access to a fall hazard which requires the use of a lifeline. It is
obvious that the physical capabilities of a restraint system need not be as great as those
of a lifeline to accomplish this purpose. The Secretary made no attempt to show that the
restraint system in use was not adequate to prevent the employee from gaining access to
a fall hazard. Consequently, Citation 1, Items l(a) and l(b) must be vacated for failure \
. to show employee access to a hazard.
2 l Citation 1, Item 2 - Alleged Violation Of 29 CFR 1926.451(d~(lO)
Pertaining to Fall Protection on Scaffolding.
CSHO Doherty testified that while conducting his inspection, he observed an
employee of a subcontractor working on scaffolding which did not have guardrails. The
employee ascended the scaffold and reached the M-foot level work platform where he
tied his lanyard off to a wire rope strung throughout the scaffolding for that purpose.
Based on these observations, CSHO Doherty issued a citation alleging a violation of 29
CFR 1926.451(d)(lO) for failing to equip the scaffold with standard guardrails.’
3Section 1926.451(d)(10) provides in relevant part:
Guardrails made of lumber, not less than 2 X 4 inch= (or other material providing equivalent
protection), and approximately 42 inches high, with a midrail of 1 X 6 inch lumber (or other
material providing equivalent protection), and toeboards, shall be installed at all open sides and
ends on all scaffolds more than 10 feet above the ground or floor.
5
It is undisputed that there were no standard guardrails on the scaffold.
Respondent asserts that because the scaffold was erected with a static line with an
adequate number of cable clamps to which the employees tied off, guardrails were not
required. (TR. M-152, and 166470).
A similar argument was made and rejected in Secretary v. Dick Corporation, 7
BNA OSHC 1951 (Rev. Corn. 1979). Relying on the provisions of the standard, in that
case respondent interpreted 0 1926.45l(d)( 10) as requiring employers either to equip
their scaffolds with standard guardrails or to provide their employees with some form of
“equivalent protection.” The Commission rejected this argument, finding that the
standard requires that tubular welded frame scaffolds be equipped with guardrails. The
Commission noted that under the clear terms of the standard, the “equivalent
protection” language relied upon by the employer only referred to the material used in
constructing the required guardrails. Thus, the standard does not permit employers to
substitute other means of fall protection for guardrails.
Respondent relies on Secretary v. Wetem Wateqxvo@g Company, Iizc., 5 BNA
OSHC 1496, 1500 (Rev. Corn. 1977), for the proposition that safety belts and lanyards
are an alternative to guardrails. Western Waterproofingis distinguishable. In that case,
Respondent wan cited for failing to install required guardrails. It defended on the basis
that it lacked control over the site of the missing guardrails and lacked capability to
install them. It had, however, taken the alternative step of supplying employees with
safety belts and lanyards. The Commission found this to be an adequate defense under
the Arming-Johnsonand Grossman Steel cases, supra. Here, Respondent does not deny
that it controls the worksite and could install guardrails. Citation 1, Item 2, is affirmed.
The proposed penalty in the amount of $2,000.00 penalty is appropriate and is affirmed.
3. Citation 1, Items 3(a) and 3(b) - Alleged Violation Of 29 CFR
1926.5~(f)(1~~~~ and 1926SOONM1Mivj Pertaining to Construction of
Guardrails.
Respondent was issued a citation alleging violations of 29 CFR 1926.5OO(f)(I)(i),
because posts supporting the wood railing surrounding the fourth floor duct shaft were
installed at intentals in excess of eight feet, and 29 CFR 1926.5OO(f)(l)(iv), because the
rails were allegedly incapable of withstanding a load of at least 200 pounds with a
minimum of deflection.4
It is undisputed that the posts were spaced at 9 l/2 foot intervals. CSHO Doherty
testified that posts placed in excess of the &foot intervals set forth in the standard allows
the railings to bend and break and creates a potential for fall hazards. (TR. 48-4% GX
8(a)). He also testified that in the event the railing failed, an employee working and
traveling in close proximity to the railing would be exposed to a potential 30 foot fall
hazard to a concrete floor. (TR. 49-50 and 63).
In addition to the posts, CSHO Doherty found that, in order to obtain the
necessary length, the top rail had been spliced a’oout three feet from its juncture with one
of the posts. (TR. 52). Because the posts were 9 l/2 feet apart and there was a splice at
qsection1926500@(1)(i) states:
For wood railings, the posts shall be of at least 2-inch by 44nch stock spaced not to exceed 8 feet;
the top rail shall be of at least 2-inch by 4-inch stock; the intermediaterail shall be of at least l-
inch by 6-inch stock
Section 1926SOO(f)(l)(iv) states:
The anchoring of posts and framing of members for railings of all types shall be of such
construction that the completed structure shall be capable of withstanding a load of at least 200
pounds applied in any direction at any point on the top rail, with a minimum of deflection.
7
the end of the top railing, the compliance officer believed that the railing would not meet
the 200 pound deflection test. (m. 53). Given the construction of the railing, the
Secretary submits that greater tautness was achievable in the top rail at this site and that
the amount of deflection exceeded the smallest degree possible for the railing. However,
the Secretary offered no evidence of a test to verify this assumption.
Respondent concedes that the posts were more than eight feet apart. However,
Respondent argues that the Secretary must demonstrate that the railing in question failed
to meet the minimum deflection test of 3 1926SOO(f)(l)(iv). Respondent’s witness, pulr.
Boozer, testified that the splice in question was overlapped three feet and secured by
several 20-penny nails which were bent over to prevent their pulling out under pressure.
Mr. Boozer also testified that, if properly done, the splice should make the railing stiffer
and that he had found that railing systems mounted on posts spaced as these posts were
sometimes passed and sometimes failed a deflection test. (TR 154-58.)
In view of the fact that the posts were not properly spaced, the Secretary has
established a violation of 0 1926.500(f)(l)(i). H owever, nothing in the language of 0
1926SOO(f)(l)(iv) supports the Secretary’s position that failure to meet the required
spacing for the posts or the existence of a splice dictates the conclusion that the
deflection requirements must be presumed to be violated. Mr. Boozer’s testimony that a
proper splice can actually strengthen a railing and that the nine and one-half foot spacing
may or may not result in excess deflection is uncontradicted and credible. I conclude
that the Secretary has not established a violation of 0 1926SOO(f)(l)(iv).
8
me Secretary proposed a grouped penalty in the amount of $5,ooO.O0 as
proposed for Items 3(a) and 3(b)? In view of the fact that the Secretary established a
violation only with respect to Item 3(a), I find that a penalty of $2,500.00 is appropriate.
4 l Citation 2. Item 1 - Alleged Violation Of 29 CFR
1926.405(a)(2)(ii) Pertaining to &Pension of TemDorarv Lightin&
CSHO Doherty issued a non-serious citation alleging a violation of 29 CFR
1926.405(a)(l)(ii)(F) for allowing temporary lighting to be suspended by electrical cords
which were not designed for such suspension. He testified that he saw temporary lights
suspended by THHN wire. He believed the wiring could break or become damaged
from contact with lifts or with personnel using the lifts in the area of the wiring, resulting
in an exposed energized line. (TR. 5840; GX 11(a) and 11(b)). The cited condition was
non-serious because it posed a hazard of shock or bums, not death or serious injury.
(TR. 60).
Respondent contends that this citation should be reclassified as de minimis in light
of Mr. Boozer’s testimony that, in order to reach the wiring and be exposed to the
hazard, employees would have to utilize platforms which are insulated, thus making the
possibility of injury remote. (See TR 179.) However, Mr. Boozer also testified that the
wiring was subject to manipulation by 1200 construction workers. (See TR 181432.) I
find that the item is properly classified.
‘Respondent urges that, if afirmed, Item 3(a) should be reclassified as “other-than-serious” and as “de
minimis.” Respondent has advanced no persuasive argument for these positions.
9
III . FINDINGS OF FACT
1. Respondent, Gilbane Building Company (“Gilbane”), is a Rhode Island
. corporation engaged in the construction industry.
2. On April 21, through May 6, 1992, Gilbane maintained a workplace at the
Sterling Winthrop Inc. project at 1032 Black Rock Road, in Collegeville, Pennsylvania,
which consisted of nine buildings comprising the Sterling Research Group.
30 Gilbane had approximately eighty (80) employees at the Collegeville
worksite. Approximately 25 of the 80 employees were superintendents, who acted as
safety inspectors. (TR. 131).
4 l Gilbane was the construction manager for the 32 trade contractors on the
worksite. (TEL 14). Gilbane had a safety incentive program in effect at the worksite to
encourage compliance with safety rules by contractors and/or subcontractors. In the
event safety procedures were not followed by contractors or their employees, Gilbane
issued safety citations. Gilbane also exercised the authority to fire employees on the spot
for safety infractions. (TR. 132).
5 l On April 21, 1992, CSHO Doherty arrived at the Collegeville worksite to
initiate a general schedule safety inspection of the construction work being performed by
Gilbane and the construction contractors and/or subcontractors at the site. (TR. 14-15).
6 l Upon arriving at the inspection site, CSHO Doherty conducted an opening
conference with and explained the nature of the inspection to William Boozer, Loss
Control Manager for Gilbane, and the project managers for Gilbane and Sterling Drug.
10
d
(m. 15). William Boozer, Carl Shipley, Lisa Powers, and an unnamed person, present
on behalf of Gilbane attended the conference. (m. 16 and 18).
7. As the result of the inspection of the worksite, violations were issued to
Gilbane under the multi-employer worksite doctrine. CSHO Doherty determined that
Gilbane was in charge of the overall safety of employees at the worksite, was the
controlling contractor, conducted daily safety inspections of the worksite, and had the
ability. to correct or to direct that violations be corrected. (TR. 20 and 65).
8l Citation 1, Item l(a) charges a serious violation of 29 CFR 1926.104(c) an
employee of a subcontractor allegedly used a lifeline made of a fibrous rope lacking a
wire core in an area where it was subject to cutting and abrasion and, at another time,
used lifeline made of a defective wire rope. (TR. 21-22, 32-36, 198-99; GX 2(a), 2(b), and
4) .
90 The employee worked in close proximity to a 36 foot fall hazard through a
wall opening. (TR. 29 and 31; GX 1).
100 The employee used the ropes as a restraint system which maintained a
minimum distance of three feet between the fall hazard and the employee. The ropes
did not serve as lifelines. (TR. 134-37, 140-45; RX 4, RX 5, R?C 6.)
110 Citation 1, Item 2, alleges a violation of 29 CFR 1926.451(d)( 10) that
requires standard railings on any tubular welded frame scaffold over 10 feet high. In the
east atrium of Building 4 of the worksite an employee of a contractor was working at the
14 foot level of a scaffold that did not have a standard railing. The employee had
11
secured his lanyard to the 5/16 wire rope strung throu&out the scaffold for fall
protection. (TR. 41; GX 6).
120 Citation 1, Item 3(a), charges a violation of 29 CFR 1926.500(f)(l)(i) that
requires that wooden guard railings be supported by posts which are spaced not more
than eight feet apart. The wood railing guarding a potential 30 foot fall hmrd down a
duct shaft to a concrete floor was supported by posts spaced 9 l/2 feet apart. An
employee of the dry wall contractor was exposed to this hazard. (TR. 48-50 and 53).
130 Citation 1, Item 3(b), charges a violation of 29 CFR 1926SOO(f)(l)(iv) that
requires that guard rails be capable of withstanding a load of at least 200 pounds applied
in any direction at any point on the top rail with a minimum of deflection. The guard
rail referred to in Finding 12 was supported by posts spaced 9 l/2 feet apart and the top
rail was spliced at a point three feet from a post by overlapping the rails by three feet
and securing them with several 20-penny nails which were bent over to prevent their
being pulled out. (TR. 53, 154-58; GX 8(a) and 8(b)).
14. Citation 2, Item 1, charges a violation of 29 CFR 1926405(a)(2)(ii)(F)
which prohibits the suspension of temporary lights by their electrical cords unless the
cords are designed for this purpose. THHN wire, which is not designed to suspend
lights, was used to suspend temporary lights. (TR. 57-58; GX 11(a) and 11(b)).
Iv 0 CONCLUSIONS OF LAW
1. Respondent is engaged in a business affecting commerce and is subject to
the requirements of the Act.
12
2. Respondent did not violate 29 CFR 1926.104(c) as charged in Citation 1,
Items l(a) and l(b).
3. Respondent violated 29 CFR 1926.451(d)(lO) for failing to erect guardrails
on the tubular-welded frame scaffold at the worksite. The violation is properly classified
as serious.
4. A penalty in the amount of $2,000.00 for the violation was calculated in
conformity with the requirements of Section 17(j) of the Act and is an appropriate
penalty.
5. Respondent violated 29 CFR 1926.500(f)(l)(i) for failing to install posts
spaced at eight-foot intervals under the railing at the fourth floor duct shaft. The
violation is properly classified as serious.
6 l A penalty in the amount of $2,500.00 for this violation was calculated in
conformity with the requirements of Section 17(j) of the Act and is an appropriate
penalty.
70 Respondent was not shown to have violated 29 CFR 1926.5OO(f)(l)(iv) with
regard to the anchoring of posts and framing of members for the guardrail around the
duct shaft.
8 l Respondent violated 29 CFR 1926.405(a)(l)@)(F) by suspending
temporary lights by their electrical cords which were not designed for such suspension.
The violation is properly classified as other-than-serious.
9. In conformity with the requirements of Section 17(j) of the Act, no penalty
was proposed foru Citation 2, Item 1.
. 13
10. Respondent is liable for these violations and proposed penalties under the
multi-employer worksite doctrine.
V. ORDER
1. Citation 1, Items 2 and 3(a), are affirmed as serious violations of the Act.
2. Citation 2, Item 1 is affirmed as an other-than-serious violation of the Act.
3. Total civil penalties of $4,SOOmOO
are assessed.
Dated: m r; 2 ‘993
Washington, D.Cm
14
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