Discretionary Review by the Secretary of Labor, 29-32 [2020-28952]

Agencies

• Employment and Training Administration
• Wage and Hour Division
• DEPARTMENT OF HOMELAND SECURITY
• DEPARTMENT OF LABOR
• Office of the Secretary

[Federal Register Volume 86, Number 1 (Monday, January 4, 2021)]
[Proposed Rules]
[Pages 29-32]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-28952]


========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

========================================================================


Federal Register / Vol. 86, No. 1 / Monday, January 4, 2021 / 
Proposed Rules

[[Page 29]]


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DEPARTMENT OF HOMELAND SECURITY

RIN 1615-AC63

DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 655

Office of the Secretary

29 CFR Part 18

Wage and Hour Division

29 CFR Part 503

[DOL Docket No. DOL-2020-0019]
RIN 1290-AA43


Discretionary Review by the Secretary of Labor

AGENCY: U.S. Citizenship and Immigration Services, Department of 
Homeland Security; and Office of the Secretary, Employment and Training 
Administration, and Wage and Hour Division, Department of Labor.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Homeland Security and the Department of 
Labor (DOL) are jointly issuing this notice of proposed rulemaking to 
seek public comments on a proposal to extend DOL's recently established 
system of discretionary Secretary of Labor review to H-2B temporary 
labor certification cases (H-2B cases) pending before or decided by the 
Department of Labor's Board of Alien Labor Certification Appeals and to 
make technical, conforming changes to regulations governing the timing 
and finality of those decisions and of decisions from the Department of 
Labor's Administrative Review Board in H-2B cases.

DATES: The Departments invite interested persons to submit comments on 
the proposed rule. To ensure consideration, comments must be in writing 
and must be received by January 19, 2021.

ADDRESSES: You may send comments, identified by Regulatory 
Identification Number (RIN) 1290-AA43, electronically only, consistent 
with the following instructions. Submit comments, read background 
documents, and read comments received through the Federal eRulemaking 
Portal at https://www.regulations.gov. To locate this rulemaking, use 
docket number DOL-2020-0019 or key words such as ``Office of 
Administrative Law Judges'' or ``Rules of Practice and Procedure for 
Administrative Hearings Before the Office of Administrative Law 
Judges.'' Instructions for submitting comments are found on the 
www.regulations.gov website. All comments must be received by 11:59 
p.m. on the date indicated for consideration in this rulemaking. Please 
be advised that comments received will be posted without change to 
https://www.regulations.gov, including any personal information 
provided.
    Therefore, the Departments recommend that commenters safeguard 
their personal information by not including social security numbers, 
personal addresses, telephone numbers, and email addresses in comments. 
It is the responsibility of the commenters to safeguard their 
information.
    If you need assistance to review the comments of the rulemaking, 
the Department will consider providing the comments and the proposed 
rule in other formats upon request. For assistance to review the 
comments or obtain the direct final rule in an alternate format, 
contact Mr. Todd Smyth, General Counsel, U.S. Department of Labor, at 
(513) 684-3252.

FOR FURTHER INFORMATION CONTACT: Todd Smyth, General Counsel, U.S. 
Department of Labor, Office of Administrative Law Judges, 800 K Street 
NW, Washington, DC 20001-8002; telephone (513) 684-3252. Individuals 
with hearing or speech impairments may access the telephone number 
above by TTY by calling the toll-free Federal Information Relay Service 
at (800) 877-8339.

SUPPLEMENTARY INFORMATION: This preamble is divided into five sections: 
Section I describes the process of rulemaking using a direct final rule 
with a companion proposed rule; Section II provides general background 
information on the proposed rulemaking; Section III summarizes the 
proposed regulatory text; Section IV covers the administrative 
requirements for this proposed rulemaking; and Section V provides 
additional information and instructions to those wishing to comment on 
the rule.
    This proposed rule is not expected to be an Executive Order 13771 
regulatory action because it is not significant under Executive Order 
12866. Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), 
the Office of Information and Regulatory Affairs designated this as not 
a major rule as defined by 5 U.S.C. 804(2).

I. Proposed Rule Published Concurrently With Companion Direct Final 
Rule

    The Department of Homeland Security (DHS) and Department of Labor 
(DOL) (collectively, the Departments) are simultaneously publishing 
with this proposed rule an identical ``direct final'' rule elsewhere in 
this issue of the Federal Register, with an identical change to the 
regulatory text. In direct final rulemaking, an agency publishes a 
final rule with a statement that the rule will go into effect unless 
the agency receives significant adverse comments within a specified 
period. If the agency receives no significant adverse comments in 
response to the direct final rule (DFR), the DFR goes into effect. If 
the agency receives significant adverse comments, the agency withdraws 
the direct final rule and treats such comments as submissions in 
response to the proposed rule. The proposed rule provides the 
procedural framework to finalize the proposed regulatory changes 
through a final rule. Agencies typically use direct final rulemaking 
when they anticipate a rule will be non-controversial.
    The Departments have determined that this rule is suitable for 
direct final rulemaking. The proposed revision to DOL's internal 
adjudicatory processes would implement the mechanism by which the 
Secretary of Labor can review H-2B cases pending before or decided by 
the Board of Alien Labor Certification Appeals (BALCA) and decisions of 
the Administrative Review Board (ARB)--a power the Secretary already 
possesses with respect to other cases pending before or decided by 
BALCA under DOL's recent final rule,

[[Page 30]]

Rules Concerning Discretionary Review by the Secretary, 85 FR 30608 
(May 20, 2020), and, with respect to ARB decisions in H-2B cases, 
reflects a power he already possesses pursuant to the Secretary of 
Labor's Order 01-2020, Delegation of Authority and Assignment of 
Responsibility to the Administrative Review Board, 85 FR 13186 (Mar. 6, 
2020). This proposed rule is a rule of agency management and personnel 
and is entirely a procedural change to how officers within DOL exercise 
delegated authority on behalf of the Secretary of Labor; therefore, the 
Departments are not required to engage in a notice and comment process 
to issue this rule. See 5 U.S.C. 553(a)(2), (b)(A). Further, 
discretionary review by an agency head over adjudicatory decisions 
exists in many other executive branch agencies, including the 
Department of Justice, the Department of the Interior, and the 
Department of Education. The proposed rule is thus consistent with 
well-known and well-established models of internal agency review both 
at DOL and at other agencies.
    The comment period for this proposed rule runs concurrently with 
the comment period for the direct final rule. Any comments received in 
response to this proposed rule will also be considered comments 
regarding the direct final rule and vice versa. For purposes of this 
rulemaking, a significant adverse comment is one that addresses (1) why 
the rule is inappropriate, including challenges to the rule's 
underlying premise or approach; or (2) why the rule will be ineffective 
or unacceptable without a change. In determining whether a significant 
adverse comment counsels in favor of withdrawal of the direct final 
rule, the Departments will consider whether the comment raises an issue 
serious enough to warrant a substantive response. A comment 
recommending an addition to the rule will not be considered significant 
and adverse unless the comment explains how the direct final rule would 
be ineffective or unacceptable without the addition.
    The Departments request comments on all issues related to this 
rule, including economic or other regulatory impacts of this rule on 
the public.

II. Background and Joint Issuance for This Rulemaking

    BALCA has authority over appeals from the decisions of the 
Employment and Training Administration's adjudication of foreign labor 
certification applications. It was created by regulation to exercise 
delegated authority on behalf of the Secretary of Labor. Its existence 
is neither compelled nor governed by statute, and it is entrusted with 
the power to issue final agency decisions in the name of the Secretary 
of Labor. Earlier this year, DOL issued regulations establishing a 
mechanism by which the Secretary of Labor can exercise review of 
decisions issued by BALCA on his behalf in the H-2A, CW-1, and PERM 
programs. This rule will apply the same mechanism for review over 
decisions issued by BALCA in the H-2B program.
    To ensure that the Secretary of Labor has the ability to properly 
supervise and direct the actions of the Department he supervises, 
earlier this year the Secretary also established a system of 
discretionary secretarial review over the decisions of the ARB. See 
Secretary of Labor's Order No. 01-2020. DOL's authority to effect this 
reform, as well as the related rulemaking undertaken earlier this year 
to establish discretionary review over decisions of and appeals before 
BALCA, derives from 5 U.S.C. 301, which authorizes the heads of 
agencies to regulate the internal operations of their departments; 5 
U.S.C. 305, which provides for continuing review of agency operations; 
and the Secretary of Labor's authority to administer the statutes and 
programs at issue in ARB and BALCA proceedings, including the H-2B 
temporary-labor-certification and enforcement programs provided for in 
DHS and DOL's 2015 joint rules. In combination, these authorities 
establish many of the powers of DOL within the Office of the Secretary, 
and give the Secretary of Labor wide latitude to delegate those powers 
to his subordinates on the terms he deems appropriate. Thus, the 
Secretary of Labor has the power to delegate his authority to 
appropriately supervise the adjudicatory process within DOL, and has 
similarly exercised that same authority to assert his decision-making 
prerogatives by modifying the terms on which the members of the ARB and 
BALCA exercise his delegated authority. The Departments propose to do 
so through this rulemaking with respect to H-2B cases pending before or 
decided by BALCA.
    This proposal, like those actions undertaken earlier this year, 
preserves the existing structures by which DOL processes adjudications 
while giving the Secretary of Labor the option, in his sole discretion, 
to initiate review directly. As with DOL's existing mechanisms of 
secretarial review, under this reform the Secretary will rely on BALCA 
to assist him in identifying cases where secretarial review may be 
warranted. Also consistent with current practices at DOL and other 
agencies, the Departments do not anticipate that the power of 
secretarial review over H-2B cases will be used often. The Departments 
similarly anticipate that secretarial review--while completely within 
the Secretary of Labor's discretion as the principal officer 
accountable for DOL's activities--will typically be reserved for 
matters of significant importance. Finally, DOL will ensure that the 
secretarial review process will continue to be accomplished in a manner 
that complies with any applicable legal requirements.
    The Departments appreciate the expeditious nature of BALCA 
proceedings involving temporary labor certifications and, as with the 
existing system of review, do not anticipate that secretarial review 
over H-2B cases will significantly disrupt or otherwise impede the way 
such cases are currently processed. As noted above, the Departments 
expect that secretarial review over BALCA's H-2B decisions will likely 
not be exercised often. Further, BALCA decisions will remain the 
Secretary of Labor's final administrative decision unless the Secretary 
himself assumes jurisdiction over the case. For example, once BALCA 
issues a decision that grants a labor certification or remands for 
further processing, the private party in the case will be able to 
proceed immediately to the next step of the application process. The 
private party will be delayed in doing so only if the Secretary of 
Labor later decides to undertake review. Moreover, as it does now, 29 
CFR 18.95 will continue to limit any potential uncertainty that may 
exist because of the possibility of secretarial review by placing 
strict time limits on when the Secretary of Labor will have the option 
of assuming jurisdiction over a case.
    As noted in the DOL's prior rulemaking establishing secretarial 
review over other BALCA cases, 85 FR 30608, the Departments have 
determined that it is appropriate to issue jointly this rule regarding 
the Secretary of Labor's review authority over H-2B cases under 29 CFR 
18.95. This determination follows conflicting court decisions 
concerning DOL's authority to issue legislative rules on its own to 
carry out its duties in the H-2B program. Although the Departments each 
have authority to issue rules implementing their respective duties in 
the H-2B program, including rules providing for secretarial review, the 
Departments are proposing to make the amendments to the applicable 
regulations jointly to ensure that there can be no question about the 
authority underlying such amendments. This approach is consistent with 
the joint

[[Page 31]]

rulemaking governing the Temporary Non-Agricultural Employment of H-2B 
Aliens in the United States, 80 FR 24042 (Apr. 29, 2015) (codified at 8 
CFR part 214, 20 CFR part 655, and 29 CFR part 503).

III. Discussion of Changes

    This rule proposes revisions to 29 CFR part 18 by modifying the 
conditions under which an H-2B decision of BALCA becomes the final 
decision of DOL and by extending to H-2B cases the process by which the 
Secretary of Labor may exercise discretionary review over cases pending 
before or decided by the BALCA. Technical amendments are also made to 
20 CFR part 655, subpart A to harmonize the manner in which BALCA 
issues decisions on behalf of the Secretary with the system of 
discretionary review established in 29 CFR part 18. Additionally, this 
rule proposes to modify or remove the reference to ``final'' decisions 
of the ARB in 20 CFR 655.73(g)(6) and 29 CFR 503.55 to reflect that the 
finality of ARB decisions is governed by Secretary of Labor's Order 01-
2020.

IV. Administrative Requirements of the Proposed Rulemaking

Executive Orders 12866, Regulatory Planning and Review, and 13563, 
Improving Regulation and Regulatory Review

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility.
    This proposed rule has been drafted and reviewed in accordance with 
Executive Order 12866. The Departments, in coordination with the Office 
of Management and Budget (OMB), determined that this proposed rule is 
not a significant regulatory action under section 3(f) of Executive 
Order 12866 because the rule will not have an annual effect on the 
economy of $100 million or more; will not create a serious 
inconsistency or otherwise interfere with an action taken or planned by 
another agency; and will not materially alter the budgetary impact of 
entitlements, grants, user fees, or loan programs or the rights and 
obligations of recipients thereof. Furthermore, the rule does not raise 
a novel legal or policy issue arising out of legal mandates, the 
President's priorities, or the principles set forth in the Executive 
order.
    Accordingly, OMB has waived review.

Regulatory Flexibility Act of 1980

    Because no notice of proposed rulemaking is required for this rule 
under section 553 of the Administrative Procedure Act, the regulatory 
flexibility analysis requirements of the Regulatory Flexibility Act, 5 
U.S.C. 603, 604, do not apply to this rule. See 5 U.S.C. 603(a), 
604(a).

Paperwork Reduction Act

    The Departments have determined that this proposed rule is not 
subject to the requirements of the Paperwork Reduction Act, 44 U.S.C. 
3501 et seq., as this rulemaking does not involve any collections of 
information. See 5 CFR 1320.3(c).

Unfunded Mandates Reform Act of 1995 and Executive Order 13132, 
Federalism

    The Departments have reviewed this proposed rule in accordance with 
the requirements of Executive Order 13132 and the Unfunded Mandates 
Reform Act of 1995, 2 U.S.C. 1501 et seq., and have found no potential 
or substantial direct effects on the states, on the relationship 
between the National Government and the states, or on the distribution 
of power and responsibilities among the various levels of government. 
As there is no Federal mandate contained herein that could result in 
increased expenditures by state, local, and tribal governments, or by 
the private sector, the Departments have not prepared a budgetary 
impact statement.

Executive Order 13175, Consultation and Coordination With Indian Tribal 
Governments

    The Departments have reviewed this proposed rule in accordance with 
Executive Order 13175 and has determined that it does not have ``tribal 
implications.'' The proposed rule does not ``have substantial direct 
effects on one or more Indian tribes, on the relationship between the 
Federal government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal government and Indian 
tribes.''

Signature

    The Acting Secretary of Homeland Security, Chad F. Wolf, having 
reviewed and approved this document, has delegated the authority to 
electronically sign this document to Chad R. Mizelle, who is the Senior 
Official Performing the Duties of the General Counsel for DHS, for 
purposes of publication in the Federal Register.

V. Notice and Comment

A. APA Requirements for Notice and Comment

    This proposed rule addresses matters of internal agency management 
and personnel, as well as matters of agency organization, practice and 
procedure, and consequently are exempt from the notice and public 
comments requirements of the Administrative Procedure Act. See 5 U.S.C. 
553(a)(2), (b)(A). Nevertheless, the Departments wish to provide the 
public an opportunity to submit comments.

B. Publication of Comments

    Please be advised that the Departments will generally post all 
comments without making any change to the comments, including any 
personal information provided. The www.regulations.gov website is the 
Federal e-rulemaking portal, and all comments received will be 
available and accessible to the public on this website. Therefore, the 
Departments recommend that commenters safeguard their personal 
information by not including social security numbers, personal 
addresses, telephone numbers, or email addresses in comments. It is the 
responsibility of the commenter to safeguard his or her information.

C. Access to Docket

    In addition to all comments received by the Departments being 
accessible on www.regulations.gov, the Departments will make all the 
comments available for public inspection during normal business hours 
at the office listed in the ADDRESSES section above. If you need 
assistance to review the comments, the Departments will provide you 
with appropriate aids such as readers or print magnifiers. The 
Departments will make copies of the proposed rule available, upon 
request, in large print or electronic file on portable digital media. 
The Departments will consider providing the proposed rule in other 
formats upon request. To schedule an appointment to review the comments 
or obtain the proposed rule in an alternate format, contact Todd Smyth, 
General Counsel, U.S. Department of Labor, Office of Administrative Law 
Judges, 800 K Street NW, Washington, DC 20001-8002; telephone (513) 
684-3252.
    Individuals with hearing or speech impairments may access the 
telephone number above by TTY by calling the

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toll-free Federal Information Relay Service at (800) 877-8339.

List of Subjects

20 CFR Part 655

    Administrative practice and procedure, Labor certification 
processes for temporary employment.

29 CFR Part 18

    Administrative practice and procedure, Labor.

29 CFR Part 503

    Administrative practice and procedure, Obligations, Enforcement, 
Immigration and Nationality Act, Temporary alien non-agricultural 
workers.

    For the reasons discussed in the joint preamble, part 655 of title 
20 of the Code of Federal Regulations and parts 18 and 503 of title 29 
of the Code of Federal Regulations are proposed to be amended as 
follows:

DEPARTMENT OF LABOR

Title 20: Employees' Benefits

Employment and Training Administration

PART 655--TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED 
STATES

0
1. The authority citation for part 655 continues to read as follows:

    Authority: Section 655.0 issued under 8 U.S.C. 
1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) and (ii), 8 U.S.C. 
1103(a)(6), 1182(m), (n), (p), and (t), 1184(c), (g), and (j), 1188, 
and 1288(c) and (d); sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 
2102 (8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat. 
4978, 5027 (8 U.S.C. 1184 note); sec. 303(a)(8), Pub. L. 102-232, 
105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 323(c), Pub. L. 103-
206, 107 Stat. 2428; sec. 412(e), Pub. L. 105-277, 112 Stat. 2681 (8 
U.S.C. 1182 note); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 
(8 U.S.C. 1182 note); 29 U.S.C. 49k; Pub. L. 107-296, 116 Stat. 
2135, as amended; Pub. L. 109-423, 120 Stat. 2900; 8 CFR 
214.2(h)(4)(i); 8 CFR 214.2(h)(6)(iii); and sec. 6, Pub. L. 115-218, 
132 Stat. 1547 (48 U.S.C. 1806).
    Subpart A issued under 8 CFR 214.2(h).
    Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), 
and 1188; and 8 CFR 214.2(h).
    Subpart E issued under 48 U.S.C. 1806.
    Subparts F and G issued under 8 U.S.C. 1288(c) and (d); sec. 
323(c), Pub. L. 103-206, 107 Stat. 2428; and 28 U.S.C. 2461 note, 
Pub. L. 114-74 at section 701.
    Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and 
(b)(1), 1182(n), (p), and (t), and 1184(g) and (j); sec. 303(a)(8), 
Pub. L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 
412(e), Pub. L. 105-277, 112 Stat. 2681; 8 CFR 214.2(h); and 28 
U.S.C. 2461 note, Pub. L. 114-74 at section 701.
    Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c) and 
1182(m); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C. 
1182 note); Pub. L. 109-423, 120 Stat. 2900; and 8 CFR 214.2(h).

0
2. In Sec.  655.61, revise paragraph (e) to read as follows:


Sec.  655.61  Administrative review.

* * * * *
    (e) Review. The BALCA must review the CO's determination only on 
the basis of the Appeal File, the request for review, and any legal 
briefs submitted and must, except in cases over which the Secretary has 
assumed jurisdiction pursuant to 29 CFR 18.95:
    (1) Affirm the CO's determination; or
    (2) Reverse or modify the CO's determination; or
    (3) Remand to the CO for further action.
* * * * *
0
3. In Sec.  655.72, revise paragraph (b)(3) to read as follows:


Sec.  655.72  Revocation.

* * * * *
    (b) * * *
    (3) Appeal. An employer may appeal a Notice of Revocation, or a 
final determination of the Administrator, OFLC after the review of 
rebuttal evidence, according to the appeal procedures of Sec.  655.61.
* * * * *
0
4. In Sec.  655.73, revise paragraph (g)(6) to read as follows:


Sec.  655.73  Debarment.

* * * * *
    (g) * * *
    (6) ARB decision. The ARB's decision must be issued within 90 
calendar days from the notice granting the petition and served upon all 
parties and the ALJ.
* * * * *

Title 29: Labor

Office of the Secretary of Labor

PART 18--RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE 
HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES

0
5. The authority citation for part 18 continues to read as follows:

    Authority: 5 U.S.C. 301; 5 U.S.C. 551-553; 5 U.S.C. 571 note; 
E.O. 12778; 57 FR 7292.

0
6. In Sec.  18.95, revise paragraph (b)(1) to read as follows:


Sec.  18.95  Review of decision and review by the Secretary.

* * * * *
    (b) * * *
    (1) In any case for which administrative review is sought or 
handled in accordance with 20 CFR 655.61, 655.171(a), or 655.461, at 
any point from when the BALCA receives a request for review until the 
passage of 10 business days after the date on which BALCA has issued 
its decision.
* * * * *

Title 29: Labor

Wage and Hour Division

PART 503--ENFORCEMENT OF OBLIGATIONS FOR TEMPORARY NONIMMIGRANT 
NON-AGRICULTURAL WORKERS DESCRIBED IN THE IMMIGRATION AND 
NATIONALITY ACT

0
7. The authority citation for part 503 continues to read as follows:

    Authority:  8 U.S.C. 1101(a)(15)(H)(ii)(b); 8 U.S.C. 1184; 8 CFR 
214.2(h); 28 U.S.C. 2461 note (Federal Civil Penalties Inflation 
Adjustment Act of 1990); Pub. L. 114-74 at Sec.  701.

0
8. Revise Sec.  503.55 to read as follows:


Sec.  503.55  Decision of the Administrative Review Board.

    The ARB's decision will be issued within 90 days from the notice 
granting the petition and served upon all parties and the ALJ.

Eugene Scalia,
Secretary of Labor.
Chad R. Mizelle,
Senior Official Performing the Duties of the General Counsel, U.S. 
Department of Homeland Security.
[FR Doc. 2020-28952 Filed 12-30-20; 4:15 pm]
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