FILED
Oct 10 2017, 9:46 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr. John C. Duffey
Attorney General of Indiana Heather L. Emenhiser
Stuart & Branigin LLP
Larry D. Allen Lafayette, Indiana
Deputy Attorney General
ATTORNEYS FOR AMICUS CURIAE,
Indianapolis, Indiana
ASSOCIATION OF AMERICAN
RAILROADS
Harold Abrahamson
Jonathan Halm
Abrahamson, Reed, & Bilse
Hammond, Indiana
IN THE
COURT OF APPEALS OF INDIANA
State of Indiana, October 10, 2017
Appellant-Defendant, Court of Appeals Case No.
02A03-1607-IF-1524
v. Appeal from the Allen Superior
Court
Norfolk Southern Railway The Honorable Wendy Davis,
Company, Judge;
The Honorable David M. Zent,
Appellee-Plaintiff
Magistrate.
Trial Court Cause No.
02D05-1503-IF-2039,
02D06-1505-IF-2988,
02D05-1505-IF-3070,
02D06-1505-IF-3071,
02D04-1505-IF-3082,
02D04-1505-IF-3084,
Court of Appeals of Indiana | Opinion 02A03-1607-IF-1524 | October 10, 2017 Page 1 of 17
02D06-1505-IF-3183,
02D06-1505-IF-3246,
02D05-1505-IF-3248,
02D04-1505-IF-3251
02D04-1505-IF-3255,
02D06-1505-IF-3262,
02D04-1505-IF-3263,
02D05-1505-IF-3264,
02D05-1505-IF-3312,
02D04-1505-IF-3362,
02D06-1505-IF-3363,
02D06-1506-IF-6379,
02D04-1506-IF-6383,
02D04-1508-IF-9742,
02D06-1508-IF-9744,
02D06-1511-IF-13718,
02D04-1512-IF-15577
May, Judge.
[1] The State of Indiana (“State”) appeals the trial court’s grant of summary
judgment in favor of Norfolk Southern Railway Company (“Norfolk”). 1 The
State argues the trial court erred as a matter of law when it determined
Indiana’s Blocked Crossing Statute, Indiana Code section 8-6-7.5-1 (“Indiana
Blocked Crossing Statute”), is preempted by the Interstate Commerce
Commission Termination Act (“ICCTA”) and the Federal Railroad Safety Act
(“FRSA”). We reverse and remand. 2
1
The Association of American Railroads (“AAR”) appeared as Amicus Curiae.
2
We held oral argument in this case on August 29, 2017, in the Indiana Court of Appeals Courtroom. We
thank counsel for their able advocacy.
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Facts and Procedural History
[2] The facts here are not disputed. In 2015, the State issued twenty-three citations
to Norfolk for violations of Indiana’s blocked-crossing statute, Indiana Code
section 8-6-7.5-1 (“Indiana’s Blocked Crossing Statute”). Norfolk does not
dispute “that the trains in these causes blocked the crossings for more than ten
minutes on each occasion.” (App. Vol. II at 7.) Nevertheless, Norfolk
challenged the citations.
[3] On September 21, 2015, Norfolk filed a motion for summary judgment, arguing
Indiana’s Blocked-Crossing Statute is preempted by the ICCTA and the FRSA.
The State responded, and the trial court held a hearing on the matter on
January 12, 2016. On June 8, 2016, the trial court granted Norfolk’s motion for
summary judgment after concluding “I.C. 8-6-7.5-1 is preempted by the
Interstate Commerce Commission Termination Act (“ICCTA”), 49 U.S.C. §
10101, et seq., and the Federal Railroad Safety Act (“FRSA”), 49 U.S.C. §
20101, et seq.” (Id. at 9.)
[4] In its order granting summary judgment in favor of Norfolk, the trial court
outlined some of the relevant facts which led to the citations:
1. Trains block grade crossings in excess of ten minutes for
various reasons in the performance of Norfolk Southerns’ [sic]
railroad operations in New Haven.
2. For example, Norfolk Southern performs switching operations
in connection with its service to various industries. Performing
switching maneuvers typically at Rose Avenue and Hartzell
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Road, which are directly east of the East Wayne Yard. Safe
coupling of cars during switching operations must be completed
at slow speeds. Coupling cars at anything but a slow speed may
cause cars to derail. Switching operations typically take longer
than ten minutes to perform. Norfolk Southern could not
perform these switching operations without, at times, blocking
grade crossing [sic] in excess of ten minutes.
3. Further, inbound trains may be held while waiting for entry
into the East Wayne Yard and to allow other train traffic to pass.
This may result in grade crossing blockages in excess of ten
minutes. Trains may also stop as the result of a mechanical
defect with the train, resulting in grade crossing blockages in
excess of the [sic] minutes.
4. Doyle Road is the first siding track east of the East Wayne
Yard. Trains park on the siding to allow other train traffic to
pass on the mainline. This may result in grade crossing
blockages on Doyle Road in excess of ten minutes.
5. To attempt to limit the time a train may obstruct a grade
crossing to ten minutes Norfolk Southern would be required to
run trains at a faster speed so as to clear crossings more quickly,
to run shorter (and, therefore, more numerous) trains so they can
be stopped without obstructing grade crossings, or to break or
“cut” the train to open the grade crossing for motor vehicle
traffic.
6. Norfolk Southern can only open grade crossings for motor
vehicle traffic (during the time the train is stopped) by breaking or
“cutting” the train into two or more segments (train segments),
depending on the length of the train. Cutting a train requires a
temporary interruption of the train’s braking system.
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7. The crew must reassemble these train segments and perform
an airbrake safety test required by federal regulations before the
train can be moved - an airbrake test that can only be performed
once the train is completely reassembled. Reassembling the train
and performing the federally mandated airbrake test is a
procedure that requires more than ten minutes to complete.
8. Cutting and re-coupling train segments requires train crew
members to dismount from the locomotive engine, walk to where
the cut is to be made, and operate equipment necessary to
perform the coupling or un-coupling operation. Crew members
also have to set a sufficient number of handbrakes on that part of
the train uncoupled from the engine(s). To complete the
coupling process, employees must go between the ends of the
cars and re-attach the air hoses that are part of [the] train’s
braking system.
9. Requiring employees to cut and reassemble train segments
each time a train may block a grade crossing for more than ten
minutes would also delay Norfolk Southern’s train operations/
traffic because of the time involved in performing these
maneuvers.
(Id. at 7-8.)
Discussion and Decision
Summary Judgment Standard of Review
[5] We review decisions on summary judgment de novo and apply the same
standard applied by the trial court. AM Gen. LLC v. Armour, 46 N.E.3d 436, 439
(Ind. 2015). The movant must show the designated evidence raises no genuine
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issue of material fact and the moving party is entitled to judgment as a matter of
law. Id.
[6] Here, the trial court made findings and conclusions in support of its entry of
summary judgment. We are not bound by such findings and conclusions, but
they aid our review by providing reasons for the decision. Allen Gray Ltd. P’ship
IV v. Mumford, 44 N.E.3d 1255, 1256 (Ind. Ct. App. 2015). We will affirm a
summary judgment on any theory or basis found in the record. Id.
Indiana’s Blocked-Crossing Statute
[7] Indiana’s Blocked-Crossing Statute states:
It shall be unlawful for a railroad corporation to permit any train,
railroad car or engine to obstruct public travel at a railroad-
highway grade crossing for a period in excess of ten (10) minutes,
except where such train, railroad car or engine cannot be moved
by reason of circumstances over which the railroad corporation
has no control.
Ind. Code § 8-6-7.5-1. In State v. CSX Transp., Inc., we interpreted Indiana’s
Blocked-Crossing Statute:
The statute clearly states that it is illegal to obstruct public travel,
not to simply obstruct the railroad crossing. The plain meaning
of this language indicates that there must be evidence that the
public attempted to travel across the railroad crossing before a
violation of this statute occurs. Moreover, this court has
previously held that the elements of a violation of this statutory
provision are: 1) obstruction of public travel, 2) at a railroad
crossing, 3) for more than ten minutes. Norfolk & Western Railway
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Co. v. State, 180 Ind.App. 185, 387 N.E.2d 1343, 1344 (1979), reh.
denied, trans. denied.
673 N.E.2d 517, 519 (Ind. Ct. App. 1996).
[8] Here, the trial court concluded Indiana’s Blocked Crossing Statute is preempted
by the ICCTA and the FRSA. This issue of federal preemption of Indiana’s
Blocked-Crossing Statute is one of first impression. Our Indiana Supreme
Court recently reiterated our standard of review when a party argues
preemption:
It has “long been settled” that a preemption analysis begins with
the presumption that federal statutes do not preempt state law.
Bond v. United States, ––– U.S. ––––, 134 S. Ct. 2077, 2088, 189
L.Ed.2d 1 (2014). The presumption against preemption comes
from two concepts “central to the constitutional design” - the
Supremacy Clause and federalism. See Arizona v. United States,
567 U.S. 387, 132 S. Ct. 2492, 2500, 183 L.Ed.2d 351 (2012).
Although the Supremacy Clause 3 gives Congress the power to
preempt state law, federalism requires that we do not easily find
preemption. See id. at 2501. In fact, we find preemption only if it
is “the clear and manifest purpose of Congress.” Id.
[Appellants], then, must show that clear and manifest purpose in
order to overcome the presumption against preemption. Russ.
Media Grp., LLC v. Cable Am., Inc., 598 F.3d 302, 309 (7th Cir.
2010).
3
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall
be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the
Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2.
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Congress can preempt state law in three ways: express
preemption, field preemption, and conflict preemption. Basileh v.
Alghusain, 912 N.E.2d 814, 818 (Ind. 2009). Express preemption
exists when Congress states the statute’s preemptive effect. Id.
Field preemption applies when Congress creates “exclusive
federal regulation of the area.” Id. And conflict preemption
preempts a state law that conflicts with federal law. Arizona, 132
S. Ct. at 2501.
Kennedy Tank & Mfg. Co., Inc. v. Emmert Indus. Corp., 67 N.E.3d 1025, 1028 (Ind.
2017) (footnote in original).
[9] Further, the United States Supreme Court has described when federal law
preempts state law under the Supremacy Clause:
First, Congress can define explicitly the extent to which its
enactments pre-empt state law. Pre-emption fundamentally is a
question of congressional intent, and when Congress has made
its intent known through explicit statutory language, the courts’
task is an easy one.
Second, in the absence of explicit statutory language, state law is
pre-empted where it regulates conduct in a field that Congress
intended the Federal Government to occupy exclusively. Such
an intent may be inferred from a “scheme of federal regulation ...
so pervasive as to make reasonable the inference that Congress
left no room for the States to supplement it,” or where an Act of
Congress “touch[es] a field in which the federal interest is so
dominant that the federal system will be assumed to preclude
enforcement of state laws on the same subject.” Although this
Court has not hesitated to draw an inference of field pre-emption
where it is supported by the federal statutory and regulatory
schemes, it has emphasized: “Where . . . the field which
Congress is said to have pre-empted” includes areas that have
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“been traditionally occupied by the States,” congressional intent
to supersede state laws must be “‘clear and manifest.’”
Finally, state law is pre-empted to the extent that it actually
conflicts with federal law. Thus, the Court has found pre-
emption where it is impossible for a private party to comply with
both state and federal requirements, or where state law “stands as
an obstacle to the accomplishment and execution of the full
purposes and objectives of Congress.”
English v. Gen. Elec. Co., 496 U.S. 72, 78-9 (1990) (internal citations omitted,
ellipses in original). 4
ICCTA
[10] The trial court found Indiana’s Blocked-Crossing Statute is preempted by the
ICCTA, which was enacted in 1996 “to standardize all economic regulation
(and deregulation) of rail transportation under Federal law, without the
optional delegation of administrative authority to State agencies to enforce
Federal standards, as provided in the relevant provisions of the Staggers Rail
Act.” H.R. Rep. No. 104–311 (reprinted in 1995 U.S.C.C.A.N. 793, 807).
[11] The ICCTA’s preemption clause clarifies the role of the Surface Transportation
Board (“STB”), the relevant governing body of the ICCTA:
4
Throughout the proceedings, most notably during the oral argument, Norfolk maintained Indiana’s
Blocked-Crossing Statute is expressly preempted by the ICCTA and the FRSA, and it has insisted on
interpreting the trial court’s order as an “all or nothing” declaration of express preemption. Therefore, we
will not examine conflict preemption or field preemption.
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(b) The jurisdiction of the [STB] over
(1) transportation by rail carriers, and the remedies
provided in this part with respect to rates, classifications,
rules (including car service, interchange, and other
operating rules), practices, routes, services, and facilities of
such carriers; and
(2) the construction, acquisition, operation, abandonment,
or discontinuance of spur, industrial, team, switching, or
side tracks, or facilities, even if the tracks are located, or
intended to be located, entirely in one State, is exclusive.
Except as otherwise provided in this part, the remedies provided
under this part with respect to regulation of rail transportation are
exclusive and preempt the remedies provided under Federal or
State law.
49 U.S.C. § 10501.
[12] When a statute contains an express preemption clause, “the task of statutory
construction must in the first instance focus on the plain wording of the clause,
which necessarily contains the best evidence of Congress’ preemptive intent.”
CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993). The State argues the
ICCTA does not expressly preempt Indiana’s Blocked-Crossing Statute:
“Although the ICCTA provides remedies for violations of various rules, there
are not remedies for obstruction of traffic. . . . ICCTA only accounts for the
explicit remedies found within the act . . . [Therefore,] the silence as to
obstruction of traffic bars facial preemption.” (Br. of Appellant at 15.) We
agree.
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[13] The State relies on Adrian & Blissfield R. Co. v. Village of Blissfield, 550 F.3d 533
(6th Cir. 2008), in which the Sixth Circuit Court of Appeals explained the
STB’s test for determining preemption:
First, state actions are “categorically” or “facially” preempted
where they “would directly conflict with exclusive federal
regulation of railroads.” . . . CSX Transp., Inc., STB Fin. Docket
No. 34662, 2005 WL 1024490, at *3 (S.T.B. May 3, 2005)).
Courts and the STB have recognized “two broad categories of
state and local actions” that are categorically preempted
regardless of the context of the action: (1) “any form of state or
local permitting or preclearance that, by its nature, could be used
to deny a railroad the ability to conduct some part of its
operations or to proceed with activities that the Board has
authorized” and (2) “state or local regulation of matters directly
regulated by the Board-such as the construction, operation, and
abandonment of rail lines; railroad mergers, line acquisitions,
and other forms of consolidation; and railroad rates and service.”
CSX Transp., 2005 WL 1024490, at *2 (citations and footnote
omitted); see also [New Orleans & Gulf Coast Ry. Co. v.] Barrois, 533
F.3d [321,] 332 [(5th Cir. 2008)]; Emerson [v. Kansas City S. Ry.
Co.], 503 F.3d [1126] 1130 [(10th Cir. 2007)]; Green Mountain
[R.R. Corp. v. Vermont], 404 F.3d [638,] 642 [2d Cir. 2005)].
Because these categories of state regulation are “per se
unreasonable interference with interstate commerce,” “the
preemption analysis is addressed not to the reasonableness of the
particular state or local action, but rather to the act of regulation
itself.” CSX Transp., 2005 WL 1024490, at *3; see also Barrois,
533 F.3d at 332; Green Mountain, 404 F.3d at 644. Second, those
state actions that do not fall into one of these categories may be
preempted as applied: “For state or local actions that are not
facially preempted, the section 10501(b) preemption analysis
requires a factual assessment of whether that action would have
the effect of preventing or unreasonably interfering with railroad
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transportation.” Barrois, 533 F.3d at 332 (quoting CSX Transp.,
2005 WL 1024490, at *3).
As the Fifth Circuit recently noted, “the STB has clearly
identified where routine crossing disputes, such as the one at
issue in this case, fall in this scheme of ICCTA preemption.” Id.
“Routine crossing disputes,” “despite the fact that they touch the
tracks in some literal sense,” “are not typically preempted.” Id.
at 332-33 (noting “that ‘[t]hese crossing disputes are typically
resolved in state courts’” (quoting Maumee & W. R.R. Corp. &
RMW Ventures, LLC, STB Fin. Docket No. 34354, 2004 WL
395835, at *2 (S.T.B. Mar. 3, 2004))). We agree that “[t]he
STB’s position with respect to these routine crossing cases is
consistent with the historical, pre-ICCTA rule governing these
crossing disputes.” Id. at 333. As the [United States] Supreme
Court explained,
The care of grade crossings is peculiarly within the
police power of the states, and, if it is seriously
contended that the cost of this grade crossing is such as
to interfere with or impair economical management of
the railroad, this should be made clear. It was certainly
not intended by the Transportation Act to take from the
states or to thrust upon the Interstate Commerce
Commission investigation into parochial matters like
this, unless by reason of their effect on economical
management and service, their general bearing is clear.
Id. (quoting Lehigh Valley R.R. Co. v. Bd. of Pub. Util. Comm’rs, 278
U.S. 24, 35, 49 S. Ct. 69, 73 L.Ed. 161 (1928)).
Id. at 540.
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[14] Further, in Fayus Enterprises v. BNSF Ry. Co., 602 F.3d 444 (D.C. Cir. 2010),
reh’g en banc denied, cert. denied, 562 U.S. 1108 (Dec. 13, 2010), the D.C. Circuit
Court of Appeals reasoned, when examining another provision under the
ICCTA:
Plaintiffs correctly point out that the ICCTA does not preempt all
state and local regulations. The circuits appear generally, for
example, to find preemption of environmental regulations, or
similar exercises of police powers relating to public health or safety, only
when the state regulations are either discriminatory or unduly
burdensome. See, e.g., Adrian & Blissfield R.R. Co. v. Village of
Blissfield, 550 F.3d 533, 539 (6th Cir. 2008); Green Mountain R.R.
Corp. v. Vermont, 404 F.3d 638, 643-44 (2d Cir. 2005) (including
risk of permitting delay in assessment of burden); N.Y.
Susquehanna & W. Ry. Corp. v. Jackson, 500 F.3d 238, 252-55 (3d
Cir. 2007); Friberg v. Kansas City S. Ry. Co., 267 F.3d 439 (5th Cir.
2001) (finding common law nuisance preempted); Fla. E. Coast
Ry. Co. v. City of W. Palm Beach, 266 F.3d 1324, 1331 (11th Cir.
2001); cf. City of Auburn v. U.S. Gov’t, 154 F.3d 1025, 1030 (9th
Cir. 1998) (seeming to apply a broader preemption rule). Several
of the cases, in addressing these environmental regulations, note
that the ICCTA “does not preempt only explicit economic
regulation.” N.Y. Susquehanna & W. Ry. Corp., 500 F.3d at 252;
see also City of Auburn, 154 F.3d at 1030 (similar). By implication,
such cases recognize that the core of ICCTA preemption is
“economic regulation,” which we take to refer to regulation of
the relationship before us here, that of shippers and carriers.
Id. at 451 (emphasis added).
[15] The ICCTA does not include language regarding regulation of a blocked
crossing for traffic regulation purposes. Without State action, railroads would
be allowed to block major thoroughfares for an infinite amount of time because
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the federal regulation is silent. Based on the holdings in Fayus and Blissfield, and
cases cited therein as support, we hold Indiana’s Blocked-Crossing Statute is
not expressly preempted by the ICCTA, not only because there is no specific
language in the ICCTA preempting the regulation of railroad crossings, but also
because Indiana’s Blocked-Crossing Statute is a permissible exercise of the
State’s “police powers relating to public health or safety.” Fayus, 602 F.3d at
451.
FRSA
[16] The trial court found Indiana’s Blocked-Crossing Statute is also preempted by
the FRSA. The State directs us to the FRSA preemption clause, which states:
(a) National uniformity of regulation -
(1) Laws, regulations, and orders related to railway safety
and laws, regulations, and orders related to railroad
security shall be nationally uniform to the extent
practicable.
(2) A State may adopt or continue in force a law,
regulation, or order related to railroad safety or security
until the Secretary of Transportation (with respect to
railroad safety matters), or the Secretary of Homeland
Security (with respect to railroad security matters),
prescribes a regulation or issues an order covering the
subject matter of the State requirement. A State may
adopt or continue in force an additional or more stringent
law, regulation, or order related to railroad safety or
security when the law, regulation, or order -
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(A) is necessary to eliminate or reduce an essentially
local safety or security hazard;
(B) is not incompatible with a law, regulation, or an
order of the United States Government; and
(C) does not unreasonably burden interstate
commerce.
49 U.S.C. § 20106. Congress enacted the FRSA to “promote safety in every
area of railroad operations and reduce railroad related accidents and incidents.”
49 U.S.C. § 20101.
[17] In State v. Wheeling & Lake Erie Ry. Co., 743 N.E.2d 513 (Ohio Ct. App. 2000),
the Ohio Court of Appeals held Ohio’s blocked-crossing law was not expressly
preempted by the FRSA. The language of the statute is similar to that of the
Indiana Blocked-Crossing Statute:
No railroad company shall obstruct, or permit or cause to be
obstructed a public street, road, or highway, by permitting a
railroad car, locomotive, or other obstruction to remain upon or
across it for longer than five minutes, to the hindrance or
inconvenience of travelers or a person passing along or upon
such street, road, or highway. No railroad company shall fail, at
the end of each five minute period of obstruction of a public
street, road, or highway, to cause such railroad car, locomotive,
or other obstruction to be removed for sufficient time, not less
than three minutes, to allow the passage of persons and vehicles
waiting to cross.
This section does not apply to obstruction of a public street, road,
or highway by a continuously moving through train or caused by
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circumstances wholly beyond the control of the railroad
company, but does apply to other obstructions, including without
limitation those caused by stopped trains and trains engaged in
switching, loading, or unloading operations.
Id. at 514 (quoting Ohio Revised Code 5589.21). The Ohio Appeals Court
interpreted the clause in the FRSA, 49 U.S.C. § 20106, which states “[a] State
may adopt or continue in force a law, regulation, or order related to railroad
safety until the Secretary of Transportation prescribes a regulation or issues an
order covering the subject manner of the State requirement,” and concluded the
FRSA did not preempt the Ohio law because “[n]either the trial court nor
appellee has indicated any federal regulation governing this issue, let alone
demonstrated the ‘clear and manifest purpose of Congress’ to preempt local
regulations on how long a stopped train can block an intersection.” Wheeling,
743 N.E.2d at 514.
[18] We adopt the holding of Wheeling because of the similarity between the state
statutes in question. As we concluded regarding the ICCTA supra, there is no
language in the FRSA which explicitly pre-empts Indiana’s Blocked Crossing
Statute.
Conclusion
[19] We hold Indiana’s Blocked Crossing Statute is not expressly pre-empted by the
ICCTA or the FRSA. In this narrow holding, we do not address conflict or
field pre-emption because Norfolk refused to discuss their application. See supra
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n.4. Accordingly, we reverse and remand for proceedings consistent with this
opinion.
[20] Reversed and remanded.
Brown, J., and Pyle, J., concur.
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