[Federal Register: May 30, 2002 (Volume 67, Number 104)]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
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.
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Part 214
[INS No. 2100-00]
Academic Honorarium for B Nonimmigrant Aliens
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Proposed rule.
SUMMARY: The Immigration and Naturalization Service (Service) is
proposing to amend its regulation relating to the acceptance of
academic honoraria by nonimmigrant aliens admitted to the United States
as B visitors. This is necessary to implement changes to section 212 of
the Immigration and Nationality Act (Act) made by the American
Competitiveness and Workforce Improvement Act of 1998. The amendment
outlines the proposed procedures necessary for a nonimmigrant alien
visiting the United States in valid B status to accept honoraria in
connection with usual academic activities.
DATES: Written comments must be submitted on or before July 29, 2002.
ADDRESSES: Please submit written comments to the Director, Regulations
and Forms Services Division, Immigration and Naturalization Service,
425 I Street, NW, Room 4034, Washington, DC, 20536. To ensure proper
handling, please reference INS No. 2100-00 on your correspondence.
Comments may also be submitted electronically to the Service at
email@example.com. When submitting comments electronically, please
include INS No. 2100-00 in the subject heading. Comments are available
for public inspection at this location by calling (202) 514-3048 to
arrange for an appointment.
FOR FURTHER INFORMATION CONTACT: Craig Howie, Business and Trade
Services Branch, Adjudications Division, Immigration and Naturalization
Service, 425 I Street, NW, Room 3040, Washington, DC 20536, telephone
What Is a B Nonimmigrant Alien?
A B nonimmigrant is an alien whose admission to the United States
is based on a temporary visit for business (B-1) or a temporary visit
for pleasure (B-2). Section 101(a)(15)(B) of the Act defines the
visitor classification as:
An alien (other than one coming for the purpose of study or of
performing skilled or unskilled labor or as a representative of
foreign press, radio, film, or other foreign information media
coming to engage in such vocation) having a residence in a foreign
country which he has no intention of abandoning and who is visiting
the United States temporarily for business or temporarily for
Based on the statutory language, the Service has long held a B-1
nonimmigrant to be one seeking admission for legitimate activities of a
commercial or professional nature, and a B-2 nonimmigrant to be one
seeking admission for activities relating to pleasure.
How Does the American Competitiveness and Workforce Improvement Act
(ACWIA) Affect the B Nonimmigrant Classification?
On October 21, 1998, President Clinton approved enactment of the
American Competitiveness and Workforce Improvement Act of 1998 (ACWIA),
Public Law 105-277, Div. C, Title IV, 112 Stat. 2681-641. Section 431
of the ACWIA amended the Act at section 212 by adding a new subsection
(q) Any alien admitted under section 101(a)(15)(B) may accept an
honorarium payment and associated incidental expenses for usual
academic activity or activities (lasting not longer than 9 days at
any single institution) as defined by the Attorney General in
consultation with the Secretary of Education, if such payment is
offered by an institution or organization described in subsection
(p)(1) and is made for services conducted for the benefit of that
institution or entity and if the alien has not accepted such payment
or expenses from more than five institutions or organizations in the
previous 6-month period.
Section 212(p)(1) of the Act, as amended by ACWIA, defines the relevant
institutions and organizations as:
(A) an institution of higher education (as defined in section
101(a) of the Higher Education Act of 1965), or a related or
affiliated nonprofit entity; or
(B) a nonprofit research organization or a Government research
organization, * * *
Note that the Service and the Department of Labor have previously
defined the organizations described in section 212(p)(1) of the Act.
See 65 FR 10678 (2/29/00) and 65 FR 80209 (12/20/00), respectively. For
consistency, the Service plans to adopt these previously published
definitions for this proposed rulemaking.
On November 30, 1999, the Service provided policy guidance to its
field offices that noted the amendatory language in the ACWIA. In
addition, the guidance noted that no new documentary requirements were
to be imposed upon aliens applying for admission and stating the intent
to accept an honorarium from an academic organization until the Service
published implementing regulations.
Why Is the Service Proposing This Regulatory Change?
This regulation will aid the Service in administering section
212(q) of the Act and will provide guidance to the public. Since the
new section 212(q) of the Act alters how the Service has historically
viewed the B nonimmigrant classification, a proposed rule is first
being published. This will offer the public a chance to comment on the
Service proposals. See Matter of Hira, 11 I. & N. Dec. 824 (BIA 1965,
1966; A.G. 1966) and Matter of Neill, 15 I. & N. Dec. 331 (BIA 1975)
for more information on how Board of Immigration Appeals decisions have
affected the Service's interpretations of the B nonimmigrant
Amendment of Existing Regulation
Are both B-1 Visitors for Business and B-2 Visitors for Pleasure
Covered by This Proposed Regulation?
Section 212(q) of the Act applies to ``[a]ny alien admitted under
section 101(a)(15)(B)'' of the Act. Thus, both nonimmigrant visitors
for business (B-1 nonimmigrants) and nonimmigrant visitors for pleasure
(B-2 nonimmigrants) may accept honoraria as provided in section 212(q)
of the Act.
(Note that aliens exempt from the nonimmigrant visa requirements
pursuant to 8 CFR 212.1 or who possess a valid border crossing card are
also eligible to engage in honorarium-related events.) This proposed
rule, however, makes an important distinction. Participation in
academic conferences and other academic activities is more properly a
B-1, rather than a B-2, activity. Therefore, if an alien is coming to
the United States to engage in activities for which he or she may
accept honoraria under section 212(q) of the Act, the alien must seek
admission to the United States as a B-1, rather than as a B-2
nonimmigrant. For those eligible to seek admission under the Visa
Waiver Program (VWP), the corresponding WB classification (Visa Waiver/
Business) is the proper one.
The B-1 and B-2 classifications are separate nonimmigrant
classifications with distinct purposes. A B-1 nonimmigrant is one who
is seeking admission for legitimate activities of a commercial or
professional nature, such as business meetings or to engage in
litigation. A B-2 nonimmigrant is one who is seeking admission for
activities relating to pleasure, namely touring, vacations, or family
visits. Therefore, the Service believes that the award of an honorarium
for services performed on behalf of an organization is not consistent
with the interpretation of a visitor for pleasure.
The proposed rule does make it clear that an alien who has already
been admitted as a B-2 nonimmigrant (or as a WT (Visa Waiver/Tourist)
nonimmigrant under the VWP) does not violate the terms of admission by
accepting honoraria in accordance with section 212(q) of the Act. But
if the events for which the honoraria are offered are arranged before
the alien travels to the United States, the alien must seek admission
as a B-1 or WB nonimmigrant.
The Service also notes that nothing in the amendatory language
relieves an alien from first meeting all the statutory requirements
placed upon those applying for admission to the United States as B
visitors. Namely, the alien must maintain an unabandoned foreign
domicile and ties to his or her country of citizenship or residence.
Only after the alien has satisfied the requirements of section
101(a)(15)(B) of the Act and is deemed admissible may the alien
participate in activities where an honorarium may be awarded.
How Does the Service Propose to Define Honorarium?
The Service is proposing the addition of a new 8 CFR 214.8. At
[sect] 214.8(a) the Service provides definitions of various terms used
throughout 8 CFR 214.8. Honorarium is defined as a gratuitous payment
of money or any other thing of value to a person for the person's
participation in a usual academic activity for which no fee is legally
required and that an honorarium may be of any dollar amount with no
minimum or maximum dollar amount required. This definition makes clear
that honorarium is altogether different than a salary that an
individual receives on a continuing basis.
How is the Term ``Usual Academic Activity'' Defined?
Section 212(q) of the Act directs the Attorney General to consult
with the Secretary of Education in order to formulate a definition of
``usual academic activity.'' As directed by section 212(q) of the Act,
the Service has consulted with the Education Department in developing a
workable definition of the term, ``usual academic activity.''
At 8 CFR 214.8(a), the Service proposes a broad definition of
``usual academic activity'' that includes lecturing, teaching, and
sharing knowledge. In addition, the Service includes activities such as
meetings of boards or committees that benefit the institution within
the text of the definition.
While the Service also includes performances, master classes, and
readings within the definition of ``usual academic activity,'' the
proposed rule does place limitations on the commercial nature of such
events. The Service proposes that such events must be open to students
and/or the general public free of charge, with no sale of general
admission tickets. An alien performing artist wishing to perform before
a paying audience and who would otherwise be charging a set fee for the
performance must avail him or herself of another type of nonimmigrant
visa specifically intended for use by such an artist. For example, the
O and P nonimmigrant categories were, in part, created to accommodate
performing artists. The Service notes that section 212(q) of the Act
does not create a new method for performing artists to circumvent the
prescribed nonimmigrant visa petition process.
Is the Service Proposing Limitations on Honorarium Activity and
Yes, section 212(q) of the Act provides that during a 6-month
period, an alien may accept an honorarium and reimbursement of the
associated expenses from no more than five organizations, and that the
event may not last more than 9 days at any single institution. While
Congress did not offer an explanation about why these limitations are
included in the amendatory language, the Service interprets these
stated limitations as evidence of congressional concern that
organizations may be tempted to circumvent the nonimmigrant petition
process in order to augment staff with alien professors or teachers.
Without any limitations, any organization included within the statutory
language could in effect hire an alien professor to teach a full
course-load, but state that the individual is only ``visiting'' and is
being awarded an honorarium for his or her contributions to the benefit
of the institution.
The Service therefore proposes at 8 CFR 214.8(c) reasonable
limitations on honorarium activity and frequency that are consistent
with section 212(q) of the Act. The Service notes that while limits are
proposed on honorarium-related activity and frequency, nothing within
the proposed rule prevents an alien from obtaining employment with an
academic organization through the normal petition process, or through
programs such as the Short Term Scholar program (a J-visa program
administered by the Department of State at 22 CFR 62.21).
The Service also attempts to provide an interpretation of the term
``single institution'' that is specified in section 212(q) of the Act.
The Service proposes that the term ``single institution'' may apply to
an organization that has more than one branch or campus. For example,
if an alien is making the same presentation at three different campuses
of a State university during a 9-day period and is being reimbursed
with one honorarium payment, the Service will regard this as a single
visit. However, if the alien's intention is to address three different
topics at a multi-campus organization over the 9-day period and the
different campuses are paying the alien separate honorarium payments
for the visits, the Service will consider this to be three separate
visits. These visits will be charged against the overall five visits
allowed during the 6-month period.
Will the Service Require Documentation From Arriving Aliens Stating the
Intent to Participate in Honorarium-related Activities?
Yes, the Service proposes, at 8 CFR 214.8(d), that aliens
presenting themselves for admission to the United States as B-1 or WB
visitor for business, and who state the intent to participate in
honorarium-related activities, be in possession of the letter of
invitation that has been issued by the institution
sponsoring the activity. It is reasonable to expect that any
organization sponsoring an honorarium-related event to have issued a
letter of invitation to the alien. Invitation letters should clearly
specify the honorarium-related event or activity as well as the date
and location of the activity. In addition, the letter may assist the
inspecting Service officer in verifying that the activity the alien
plans to participate in qualifies pursuant to section 212(q) of the Act
and the regulations at 8 CFR 214.8. The Service sees no particular
hardship by proposing this reasonable documentary requirement.
Does the Service Consider Organizations Sponsoring Honorarium-Related
Events to be Employers Subject to the Provisions of Section 274A of the
No, the Service intends that organizations sponsoring honorarium-
related events will not be considered to be employers subject to the
provisions of section 274A of the Act as long as their actions are
consistent with this rule.
Section 274A of the Act and implementing regulations at 8 CFR part
274a relate to the control of the employment of aliens in the United
States. These provisions require persons or entities who hire
individuals for employment in the United States to verify such
individuals' employment eligibility and identity on the Employment
Eligibility Verification form (Form I-9). These provisions also
prohibit persons or entities from: hiring an alien knowing that he or
she is unauthorized to work in the United States; continuing to employ
an alien knowing that he or she is or has become unauthorized to work;
or using a contract, subcontract, or exchange to obtain the labor or an
alien in the United States knowing that he or she is unauthorized with
respect to performing such labor. In essence, therefore, the
prohibitions and requirements of section 274A of the Act and 8 CFR part
274a only apply in the employment and contract services contexts.
In the context of honorarium-related events, however, the
relationship between the organization sponsoring the event and the
individual providing the honorarium-related academic activity is
neither one of employer/employee nor based upon contract services. The
definitions of ``employee,'' ``employer,'' and ``employment'' in 8 CFR
274a.1(f), (g) and (h) respectively make clear that, for purposes of
section 274A of the Act, ``employment'' has the common meaning of the
provision of labor or service for a wage, salary or other remuneration,
to which the employee has a legal entitlement, once the employee
performs the labor or service. This proposed rule defines an
honorarium, by contrast, as ``a gratuitous payment of money or any
other thing of value to a person for the person's participation in a
usual academic activity, for which no fee is legally required.'' Thus,
an activity for which a person may accept an honorarium under this rule
is not ``employment'' nor is it contractual, given its gratuitous
However, the fact that an activity for which an entity may offer an
honorarium is not ``employment'' or contract services does not mean an
entity can abuse the honorarium process to circumvent the prescribed
nonimmigrant petition process that all United States employers must
follow, in those cases where it will, in fact, be employing the
services of a qualified alien worker. Organizations, in particular
colleges, universities, and other institutions of higher education, may
not use the honorarium provisions to hire or contract with an alien
worker in order to provide salaried or otherwise compensated services.
If the individual is to be the entity's employee, both the entity and
the alien must comply with section 274A and all other provisions of the
Act--such as visa petition, labor certificate, and visa requirements--
governing the alien's ability to accept employment in the United
States. For example, organizations that connect events together where
the 9-day periods run back-to-back or are otherwise structured in such
a way as to allow the instructor to continue the program during a
regular semester or other established instructional period must be
prepared to substantiate why the Service should not consider this
arrangement as employment.
If the alien is to provide contract services, he or she will be
violating his or her status by providing such services unless the alien
is employment-authorized with respect to this activity. While the
entity is not required by section 274A of the Act to verify the
employment eligibility on Form I-9 of individuals providing contract
services, the entity may be violating the prohibition against knowingly
hiring an unauthorized alien if the individual is providing the
contract services without being employment-authorized, and the entity
is aware of this fact.
What Penalties Might an Alien Incur Should he or she be Found to be in
Violation of Status?
The Service has every reason to believe that the vast majority of
aliens that intend to take advantage of these honorarium-related
provisions will maintain and abide by the B-1 or WB status under which
the alien was admitted. However, the Service would be remiss not to
address the possible consequences an alien may face should he or she
violate the provision of the admitted B-1 or WB status. The Service
therefore notes at 8 CFR 214.8(e) that an alien who collects honorarium
in excess of the limitations stipulated by the Act will be considered
to be in violation of his or her B or WB nonimmigrant status and
amenable to removal under the provisions of section 237(a)(1)(C)(i) of
In addition, an alien who is applying for admission to the United
States in order to participate in honorarium-related activities, and
who is found to have exceeded the limitations on such activities
stipulated by the Act, and who knowingly misrepresents himself or
herself to the admitting Service inspector about material facts
regarding the alien's honorarium-related activities, may be found to be
inadmissible pursuant to the misrepresentation provisions found in
section 212(a)(6)(C)(i) of the Act.
Regulatory Flexibility Act
The Commissioner of the Immigration and Naturalization Service, in
accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has
reviewed this regulation and, by approving it, certifies that this rule
will not have a significant economic impact on a substantial number of
small entities. This rule applies to nonimmigrant aliens visiting the
United States in valid B status to accept honoraria in connection with
usual academic activities. It does not affect small entities as that
term is defined in 5 U.S.C. 601(6).
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Act of 1996. This rule will not
result in an annual effect on the economy of $100 million or more; a
major increase in
costs or prices; or significant adverse effects on competition,
employment, investment, productivity, innovation, or on the ability of
United States-based companies to compete with foreign-based companies
in domestic and export markets.
Executive Order 12866
This rule is considered by the Department of Justice, Immigration
and Naturalization Service, to be a ``significant regulatory action''
under Executive Order 12866, section 3(f), Regulatory Planning and
Review. Under Executive Order 12866, section 6(a)(3)(B)-(D), this
proposed rule has been submitted to and reviewed by the Office of
Management and Budget.
Executive Order 13132
This rule will not have 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. Therefore, in accordance with section 6 of
Executive Order 13132, it is determined that this rule does not have
sufficient Federalism implications to warrant the preparation of a
federalism summary impact statement.
Executive Order 12988 Civil Justice Reform
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995, Public Law 104-13, all
Departments are required to submit to the Office of Management and
Budget (OMB), for review and approval, any reporting or recordkeeping
requirements inherent in a rule. This proposed rule does not impose any
new reporting or recordkeeping requirements under the Paperwork
List of Subjects in 8 CFR Part 214
Administrative practice and procedures, Aliens, Employment.
Accordingly, part 214 of chapter I of title 8 of the Code of
Federal Regulations is proposed to be amended as follows:
PART 214--NONIMMIGRANT CLASSES
1. The authority citation for part 214 continues to read as
Authority: 8 U.S.C. 1101, 1103, 1182, 1184, 1186a, 1187, 1221,
1281, 1282; sec. 643, Pub. L. 104-208, 110 Stat. 3009-708; Section
141 of the Compacts of Free Association with the Federated States of
Micronesia and the Republic of the Marshall Islands, and with the
Government of Palau, 48 U.S.C. 1901, note and 1931 note,
respectively; 8 CFR part 2.
2. Section 214.8 is added to read as follows:
[sect] 214.8 Academic honorarium for B visitors.
(a) This section establishes the rules that govern an alien's
receipt of honoraria in accordance with section 212(q) of the Act,
while the alien is present in the United States after having been
admitted as a nonimmigrant visitor for business or pleasure (B
nonimmigrant). As used in this section the term:
Associated incidental expenses means reimbursements or payments for
travel costs, lodging, meals, uniforms, or supplies.
Government research organization means an organizational unit of
the Federal Government whose primary mission is the performance or
promotion of basic research and/or applied research. See [sect]
214.2(h)(19)(iii)(C) for a complete definition of this term.
Honorarium means a gratuitous payment of money or any other thing
of value to a person for the person's participation in a usual academic
activity for which no fee is legally required. The value of an
honorarium may be of any dollar amount with no minimum or maximum
dollar amount required, as distinguished from set compensation (i.e.,
salary) for services that are rendered on a continuing basis.
Institution of higher education means an institution meeting the
requirements of section 101(a) of the Higher Education Act of 1965.
Nonprofit research organization means an organization defined as
tax exempt under the Internal Revenue Code of 1986, section 501(c)(3),
(c)(4) or (c)(6), 26 U.S.C. 551(c)(3), (c)(4) or (c)(6) and has been
approved as a tax exempt organization for research or educational
purposes by the Internal Revenue Service. See [sect]
214.2(h)(19)(iii)(C) and (h)(19)(iv) for a complete definition of this
Pre-arranged academic activity means any academic activity for
which an alien will accept an honorarium, if the institution invited
the alien's participation before the alien's admission to the United
Usual academic activity (or activities) means those activities for
the benefit of the institution that include, but are not limited to,
lecturing, teaching, consulting, conducting research, attending
meetings, symposia or seminars, or otherwise sharing knowledge,
experience, or skills in master classes, readings, and performances
(when the audience is composed of non-paying students and/or open to
the general public and general admission tickets to the public have not
been sold), and meetings of boards, committees, or merit review panels.
Visitor for business means a person admitted to the United States
as a B-1 nonimmigrant or a Visa Waiver Program visitor for business
pursuant to 8 CFR part 217.
Visitor for pleasure means a person admitted to the United States
as a B-2 nonimmigrant or a Visa Waiver Program visitor for pleasure
pursuant to 8 CFR part 217.
(b) B nonimmigrants eligible to accept honorarium. Both
nonimmigrant visitors for business and nonimmigrant visitors for
pleasure may accept honoraria in accordance with section 212(q) of the
Act. Aliens who are exempt from the nonimmigrant visa requirements of 8
CFR 212.1 or who possess a valid border crossing card are also eligible
to engage in honorarium-related events. If, however, the alien is
coming to the United States to participate in pre-arranged academic
activities for which the alien will accept honoraria the alien must
seek admission as a nonimmigrant visitor for business. An alien may not
be admitted as a nonimmigrant visitor for pleasure if the alien's plans
include participating in pre-arranged academic activities for which the
alien will accept honoraria.
(c) Limitations on honorarium activity and frequency. The
acceptance of honoraria under this paragraph is subject to the
(1) During a 6-month period, an alien may accept an honorarium and
reimbursement of the associated expenses from no more than five
organizations that are defined in paragraph (a) of this section. If
questioned by the admitting Service Inspector or by any Service officer
after admission, the alien shall provide a complete accounting of his
or her honorarium-related activities within the applicable 6-month
(2) The academic activity or activities that the alien is providing
for the institution is limited to no more than 9 days per activity at
any single institution (a total of 45 possible days during the 6-month
period). The term ``single institution'' also applies to an
organization that has branches or campuses in more than one location.
For purposes of applying the 9-day limit, if the alien is providing the
identical service at more than one location of the institution during
day period and is being reimbursed with one honorarium payment, this
shall be considered one activity. However, if the alien is providing
different activities at different branches of an organization and the
different campuses are paying the alien separate honorarium payments
for the visits, each visit to each branch or campus shall be considered
a separate visit and be calculated against the maximum of five allowed
activities within the 6-month period.
(3) An institution may not use the honorarium provisions of section
212(q) of the Act as a vehicle to circumvent the otherwise prescribed
nonimmigrant petition process. Institutions desiring to employ
nonimmigrant aliens must comply with section 274A of the Act and all
other applicable provisions of the Act and the Service regulations at 8
CFR part 274a that govern an alien's ability to legally accept
employment in the United States.
(d) Documentation. Any alien applying for admission to the United
States as a B-1 visitor for business or as a WB visitor, stating the
intent to participate in an academic activity for which an honorarium
payment will be awarded, will be required to be in possession of the
letter of invitation that the institution sponsoring the activity has
issued to the alien. At a minimum, an invitation letter should clearly
specify the honorarium-related event or activity, as well as the
date(s) and location of the event. The letter of invitation must be
produced for inspection if requested by an inspecting Service officer
at the United States port-of-entry where the alien is applying for
(e) Applicability of employment requirements. A nonimmigrant
visitor for business or pleasure who accepts honoraria as provided in
this section will not be considered as engaging in employment or
providing contract services since doing so impedes the ability of the
Service to properly administer section 212(q) of the Act.
(f) Violation(s) of status. (1) A nonimmigrant visitor for business
or pleasure who collects honoraria in excess of the limitations noted
in paragraph (c) of this section is in violation of his or her
nonimmigrant status and amenable to removal under section
237(a)(1)(C)(i) of the Act.
(2) It is not a violation of status for an alien who has been
admitted as a nonimmigrant visitor for pleasure to accept honoraria
under section 212(q) of the Act for the alien's participation in
academic activities, if the institution invited the alien's
participation after the alien's admission. It is, however, a
misrepresentation of a material fact for an alien who is coming to the
United States to participate in pre-arranged academic activities for
which the alien will accept honoraria to seek and obtain admission as a
nonimmigrant visitor for pleasure, rather than as a nonimmigrant
visitor for business.
(3) It is not a violation of status for a B-1 alien to participate
in more than one academic activity at more than one organization during
a single admission. However, the academic activities must comport with
the limitations noted in section 212(q) of the Act.
Dated: May 21, 2002.
James W. Ziglar,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 02-13433 Filed 5-29-02; 8:45 am]
BILLING CODE 4410-10-P
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