IMPLEMENTATION OF ACCESS AND BENEFIT SHARING SYSTEM IN KAMRUP DISTRICT, ASSAM: AN EMPIRICAL STUDY
Author: Jayanta Boruah
Ph. D Scholar, NEHU Shillong
Access and Benefit Sharing (ABS) was introduced at the global level for the purpose of enabling the conservation of Biological Resources (BR) by virtue of sustainable commercialization. And to give effect to this goal Convention on Biological Diversity and the Nagoya Protocol established the ABS System and made it mandatory for the member states to implement such a mechanism at the domestic level. Thus, India is a member State implemented the above mechanism by virtue of the Biological Diversity Act (BD Act), 2002. The same became applicable to the State of Assam of which Kamrup District is also a part.
This article is based on the findings made by an empirical study in the Kamrup District of Assam on the question relating to the efficiency of the BD Laws establishing the ABS system in the said region and regarding the status of implementation of such a system.
Kamrup is a District in the State of Assam in North-east India that is divided into two sub-districts Kamrup Rural (R) and Kamrup Metropolitan (M). It is spread over an area of about 6,882 sq km with a human population of around 35, 96,292. As per Biological Resources (BR) is concerned, Assam as a whole is regarded as a Biodiversity (BD) Hotspot in India due to its wholesome environment for most of the rare endangered as well as common species of both plants and animals. In Kamrup also the presence of Greenery can be found in Garbhanga Forest, Chandrapur, etc while Deepor Bil and other such places are homes to many Biological Species.
However, concerns are increasing due to the significant loss of such species in the said area for which several legal institutional frameworks have been established. It is also alleged that illegal bio-trading and unregulated commercial activities are contributing to such loss of BR, for which the Biodiversity Management Committees (BMCs) were established and made functional under the authority of Assam State Biodiversity Board (ASBB) for regulating the commercial utilization of such BR as per the provisions of BD Act and the subsequent Access and Benefit Sharing (ABS) guidelines. It is held that equitable sharing of the benefits that arise from commercial utilization of BR with the Local Communities (LCs) will empower such communities who are involved in the process of conserving those BR from generation to generation and thereby will serve the purpose of protecting such BR at large. Further, this institutional framework will also regulate the commercialization of BR for ensuring sustainable utilization of such resources so that the rights of the future generations do not get compromised. The link between conservation and commercialization of BR can be drawn from the Convention on Biological Diversity, (CBD) 1992 itself. It is even held that the production, collection, transformation as well as commercialization of goods and products based on BD that met specific sustainability criteria may help in generating incentives for conservation and sustainability of the BR. For this reason, CBD ensures sustainable Bio-trade and this has been implemented by India though the BD Act of 2002.
This paper will thus focus on the question that whether the Legal Framework regulating ABS mechanism in Kamrup District, Assam is efficient enough to implement the mechanism? If yes, then whether it has been implemented accordingly and if no, then what are the probable lacunas in such Legal Framework?
MEANING OF ACCESS AND BENEFIT SHARING
Access- It means an entry in a place where GR is found, surveying them for commercial or non-commercial use in product development, collecting their samples, or obtaining their associated Traditional Knowledge (TK), using them for any scientific study or research for commercial purposes.
Benefit Sharing- It means sharing the benefits arising out of the utilization of the GR and their associated knowledge, in proportions as mutually agreed by the providers and users of these GR.
In a general sense, access means entering into a place for retrieving a material object. However, in the BD context, the Convention on BD, 1992 speaks about ensuring the fair and equitable sharing of benefits arising from genetic resources. Further, Article 5 of the Nagoya Protocol requires that benefits arising from the utilization of genetic resources as well as from subsequent applications and commercialization, to be shared in a fair and equitable way with the party providing such resources. Such sharing shall be upon mutually agreed terms.
NATIONAL AND LOCAL LEGAL FRAMEWORK ON ACCESS AND BENEFIT SHARING
Biological Diversity Act, 2002–
This Act of 2002 was enacted for the three main objectives of CBD to be achieved in India, via- Conservation of BD; Sustainable Use of BD, and FEBS. For the purpose of implementing the provisions of the Act, three different Authorities were set up at different levels which are- NBA at the national level to be constructed by the Central Government, SBBs at the state level to be established by the State Governments and the Local BMCs at the local level.
NBA deals with the application for Access to BR by the Foreign Nationals, while SBBs deal with the application to such Access by the Indians, and the BMCs are mainly responsible for maintaining accounts of the People belonging to LCs along with their BR over which they have possession and TK.
The Act provides the manner and form in which permission is to be taken from the concerned authorities and the LCs before accessing to the BR and also excludes certain people from the condition of seeking permission. It also contains a list of commodities of items that are excluded from the necessary conditions as laid by the Act and they are referred to as Normally Traded Commodities (TNC) that list to be ratified by the Central Government under Section 49 and that list now contains 421 commodities. This list is also exempted from the application of Section 3 and Section 4 which is also not applicable for the purposes of collaborative research. The Act excludes the collaborative research projects under agreements before the commencement of this Act to the extent of the inconsistency to the provisions of this Act and the Guidelines made thereunder. The collaborative research projects upon which this provision applies are mentioned under Section 5(1).
Biological Diversity Rules, 2004
As in accordance with the provision of Section 62 of the BD Act, 2002, the Central Government has framed the BD Rules of 2004 for the purpose of regulating the functions of the NBA and also the System of ABS. it basically provided for the appointment of members to the BD Authorities; their Salaries, tenures, and qualifications; the manner for conducting meetings and appointment of special committees; the amount of fee and the benefit to be charged from the accessor of BR and to be distributed to the LCs respectively; the forms and the procedures for approving the applications for Access to BR, etc.
Guidelines on Access to BR and TK and Benefit Sharing Regulation, 2014
It provides for the mode of Benefit Sharing; determination of such sharing; mode of transfer of access to third parties; most importantly it exempts Indian persons doing research on BR for Bio-utilization and Bio-prospecting.
In this section, some of the prominent cases on ABS machinery as decided by the Indian SC will be analyzed in order to understand the concept of ABS from jurisprudential point of view.
Dilip Mishra v. Union of India & Others-
In this case, the NGT responded by framing guidelines whereby it directed to make provisions for notifying important BD locations as BD Heritage Sites and also to make provisions for rehabilitation of those who were commercially affected by such declaration. It further directed the State government to identify threatened BR for the purpose of declaring BD Heritage Sites. Thus, several of the NGT issued directions to restrict commercial activities for the conservation of the rare BR.
Sri Baiznath Chaurasia v. Western Coalfields Ltd. & Others–
In this case, the definition of BR under CBD as well as the BD Act along with several other related provisions was thoroughly interpreted since the question of whether coal is a br or not was raised. Although, a lot of points were discussed finally it was held that coal is not a BR and therefore the respondents are not liable to pay any fees for access to coal under the BD Act. This case, however, highlighted that the definition of BR needs a careful interpretation since it speaks for every Biological species including GR and coal is a fossil fuel derived from plants so a lot of confusion arose while deciding this particular case.
Chandra Bhal Singh v. Union of India & Ors–
In this case, the Petitioner filed a petition in the NGT informing the Tribunal that the matter of constitution of BMCs in India has not been taken seriously by the NBA and the MoEF&CC and therefore only 30% of the BMCs have been constituted as per the required targets. The Tribunal, therefore, ordered the respective authorities to take the said matter seriously and to update about the steps taken in this behalf through regular reports.
Divya Pharmacyv. Union of India–
Ramdev, in favor of Divya Yoga Mandir Trust at Haridwar, filed a petition in the Uttarakhand High Court against the Uttarakhand SBB for ordering to share Rs. 20.4 million from its 4.21 billion revenue earned in 2014-15 with the farmers as a share in the benefits achieved by the Divya Pharmacy by utilizing the BR. While Patanjali pleaded that it being an Indian company shall not be made liable under the BD Act for sharing its benefits. The concept of FEBS (Fair and Equitable Benefit Sharing) was interpreted by the HC and it gave a clear meaning to it. It further held that although the literal meaning of Section 3 and 7 of the BD Act does not make an Indian entity liable for sharing its revenue under the head of FEBS, yet it is also true that what appears to be obvious need not be always correct. Thus, the Court held that the National entities are also liable not only to give prior information to the respective SBBs before making access to any BR but also to share its revenue with the LCs earned by utilizing such BR.
Assam Biodiversity Rules, 2010-
These Rules were introduced in the State of Assam as an extension of the provisions of Section 63 of the BD Act 2002. These Rules provide for the appointment, pay, allowances, removal, etc. of the Chairperson, Member-Secretary, Non-officials, and such other required members for the State BD Board. The following members are to be appointed as Ex-officio members- the Secretary/Commissioner of the Environment and Forest Department of the Assam Government, the Secretary/Commissioner of the Assam Agriculture Department, the Chief Conservator of Forest, BD and the Directors of the Assam Fisheries as well as the Agriculture Departments. The head office is to be located at Guwahati. The Board shall sit for meetings four times a year. Most importantly the Rules provide for the functions of the Board that includes advising the State Government in matters relating to conservation, preservation and sustainable use of BR and also regarding benefit-sharing from the utilization of such BR, to engage a technical consultant for such matters, to appropriate and regulate the procedures for any access to BR by any Indian Nationals, to regulate the ABS mechanism, to constitute BMCs at Zila panchayat, gaon panchayat as well as at the municipality levels and such other functions. The Board has also the responsibility to file annual reports of their functions and to regulate all the activities related to the functioning of the BMCs. In short, the Board has to perform all the functions as specified in the BD Act.
Assam State Biodiversity Board
In exercise of the powers under Section 2(i) of the BD Act, the Assam Government constituted the ASBB on 28th September 2010. The Board was constituted in the manner provided by the State BD Rules of 2010. The headquarters of the Board is located in Punjabari, Guwahati in the building of the Assam Forest Department Head office (Aranya Bhawan).
The Board is entrusted with the responsibility of performing all the functions as specified by the BD Act and the State BD Rules. The vision of the Board is to commercially reward the BD of the state beautifully and in a secured manner with the mission of providing ownership rights to the LCs for the conservation of the BR. The Board has undertaken several initiatives like organizing Biodiversity Volunteer Initiative Program whereby amateur students are given opportunity to publish their papers, photographs, etc. to contribute to the updating of the websites with an objective to prepare a knowledge base for collection and dissemination of information related to the aspects of BD conservation and environmental protection for the common citizens; Internship Program on BD Conservation for the building of a scientific temper amongst the young students between the age group of 20-30 years from life science stream where fellowship amounts from Rs. 5000-10,000 and the students are required to work under the directions of the Board for a period of 3 months where they can utilize the period of vacation and other leisure time for increasing their experiences and contributing their expertise, knowledge, and efforts in building up a scientific approach towards the BD Conservation; the Board also monitors the preparation work of the PBR where Rs 50,000 is allotted to each BMC for the purpose of preparing their PBR in their respective jurisdictions with the aid and advise of the Board; and also monitors the other activities of the BMC and acts as an intermediary body between the NBA and the BMCs.
Biodiversity Management Committees in Assam
BMCs are to be constituted at the local levels under the BD Act for which the ASBB in Assam supports and facilitates in the constitution of the BMCs at the Anchalik Panchayat levels of the State. The main function of these BMCs is to preserve, conserve, document, and to provide scope for sustainable utilization of the BR available within their respective jurisdictions including preserving the habitats, conserving the landraces, local folk, and cultures along with the TK of the local people. They shall comprise of a total of seven members from the local body among whom one-third shall be women members, seven local members who are knowledgeable in NTFP collection, fisheries, and such other related aspects, five invitees from government departments like agriculture, fisheries, horticulture, education, etc. the chairman shall be appointed by the members. The ASBB has constituted so far 189 BMCs across the State as per the literature available, in addition to these BMCs there are more BMCs created in the three Autonomous District Councils in their respective forest range jurisdiction where 21 BMCs are constituted in the Bodoland Territorial Council, 10 BMCs are constituted in the Karbi Anglong Autonomous Council and 9 BMCs are created in the Dima Hasao Autonomous Council.
There are 16 BMCs constituted so far in the Kamrup District out of which 3 are constituted in Kamrup (M) via- Chandrapur Block BMC, Rani Block BMC and Dimaria Block BMC and the rest 13 BMCs are constituted in Kamrup (R) that are listed below.
List of BMCs in the Kamrup District-
|Sl. no.||Name of BMCs||Chairperson||Member Secretary|
|1||Chandrapur Anchalik BMC||Sri Nagendra Chetri||Sushil Kumar Kalita|
|2||Rani Anchalik Panchayat BMC||Rabin Daimari||Gunindranath Das|
|3||Dimoria Anchalik Panchayat BMC||Smt. Santi Chetri||Sri Gadadhar Malakar|
|4||Boko Anchalik BMC||Sri Upen Gayari||Sri Satish Mali|
|5||Chayani Borduar Anchalik BMC||Sri Citra Mali||Sri Nabin Das|
|6||Chaigaon Anchalik BMC||Sri Pradeep Kalita||Sri Parikhit Thakuria|
|7||Garoimari Anchalik BMC||Smt. Morium Khatun||Sri Taisuddin Ahmed|
|8||Rampur Anchalik BMC||Sri Phanindra Das||Sri Ananta Kalita|
|9||Chamoria Anchalik BMC||Sri Milan Dasi Das||Sri Hirakjyoti Das|
|10||Bangaon Anchalik BMC||Md Hasroot Ali||Sri Jainur Ali|
|11||Rongia Block BMC||Md Tariful Islam||Md Hafizuddin Ahmed|
|12||Bazera Block BMC||Smt. Bimala Boro||Md. Imal Haque|
|13||Jogi Kona Block BMC||Smt. Mousomi Boro Kalita||Md. Hafizuddin Ahmd|
|14||Sualkuchi Block BMC||Md. Makib Ali||Sri Ajit Das|
|15||Hajo Block BMC||Sri Pranita Malakar||Sri Ajit Das|
|16||Kamalpur Block BMC||Shri Harun Das||Shri Achinta Duri|
Table 12: List of BMCs constituted in Kamrup District
Note- The above information is as per literature of 2016 while at present these information are subject to change therefore may vary from the current sources, if available.
So far 8 BMCs from Kamrup District had submitted their PBRs. These BMCs are- Rani Block Bmc, Bongaon Block BMC, Garoimari Block BMC, Chamaria Block BMC, Sualkuchi Block BMC, Hajo Block BMC, Bazera Block BMC and Kamalpur Block BMC.
ANALYSIS OF THE FINDINGS
Provisions of the BD Act-
No doubt the CBD was enacted for the purpose of checking Bio-piracy by the Developed nations, yet it also provided for the objectives of conservation and sustainable utilization of BR. But, the BD Act and its implementation are alleged to have given more emphasis on preventing profit-sharing from the commercial use of BR than the other objectives of conservation and sustainable use of BR. If we look into the functions of the Forest Departments as specified under Forest Laws and the functions of the BD Authorities under the BD Act then we can easily understand that the BD Authorities are more focused on regulating the third objective of the Act that is to regulate ABS mechanism more than the first two objectives.
Further, the BD Act makes a classification between the citizens of India and non-citizens based on their citizenship and residential status. But this classification can be questioned on the grounds of constitutional validity since it tends to violate Article 14 of the Indian Constitution. Article 14 provides that any Act making such classification shall pass through the tests of Intelligible Differentia and Rational Nexus with the objectives of the Act. Here, the classification after passing the test of intelligible differentia shall pass the test of rational nexus between such classification and the objectives of the Act, but the classification in this Act is based on citizenship and residential status, while the objectives are to conserve and to make sustainable use of BR including fair and equitable sharing of benefits obtained from using such BR. As such there arises no rational nexus between such classification and the objective of conservation of BR. It is based on a pr-conceived notion that national citizens and companies will not exploit the country’s BR or the country’s BR is only threatened by foreign users of BR. While on the other hand it has been found that the local people are more actively involved in illegal Bio-trading. Further, this classification also makes it difficult for stakeholders where non-Indian entities are in minority to follow the procedures of this Act.
The BD Act provides for sharing of benefits with the LCs and thereby providing for PIC. This concept of PIC was introduced because it is assumed that the LCs are aware of the commercial value of the BR and the associated TK for which access or patenting is sought for, so, therefore, they are in a position to justify and to make an informed decision as to the benefits and loss of such access or patenting of any BR or TK under their possession But under this Act consultation from LCs before making any access to BR is weak compared to consent. Here consultation with a particular village head or a group of influential persons is sufficient to make any access to BR, but such provision will not allow all the members of a particular LC to be represented in the decision-making process before granting approval for any access to BR. Moreover, in States like Assam, where there is a heavy inflow of illegal immigrants, it won’t be that easy to define the term LCs. Further, it is difficult to assume as to who are actually the members of a particular LC and to whom the ownership rights of a particular BR is vested within States like Assam where a majority of the population in most cases are outsiders. The Act has not provided the parameters for defining the members of LCs.
In India, the ABS mechanism is under the process of development, but the law has not provided any clear distinction between GR and BR for which access to a single biological specimen will mean access to GR which will ultimately defeat the entire motive of the Actant at the same time the definition of BR seems to have been interpreted differently at different intervals from time to time which again leads to a lot of confusions. Further, the owners of the GR are not been determined by the BD Act and thus it becomes difficult to make the users of this GR comply with the law. 
Implementation Status of the BD laws
It shows that the implementation has begun but the ASBB has revealed that no application for ABS has been made so far neither the ABS mechanism is established in Assam. The BMCs have revealed that the implementation of this Act is in the preliminary stage at the local level. 
The concerned Authorities have also revealed that there are a number of problems in the implementation of this law. First, the BR are assembled by the collectors after their collection from different regions which makes it very difficult to access as to from which a particular BR has been collected and in what quantity. Second, the local people are not aware neither they have shown interest in the implementation of this law. And third, which is the most important problem in the implementation of this law is that the people of the State are not worried about losing a particular species since the land of Assam is fertile enough for allowing a variety of species to grow here for which the people can easily shift to alternative species of BR whenever a particular species get extinct. The ASBB under the law is just an advisory body for which it lacks the power to take affirmative action for forcing the domestic companies to comply with the law.
Constitution of BMCs
The study has found that the BMCs in Kamrup District lack continuity. Since they are constituted with the members of the Panchayats as well as with the Forest Officers where Panchayat gets dissolved after the Panchayat election and the Forest Officers are transferred on a regular basis. This makes the BMC to be a non-permanent body for which it becomes very difficult to carry with the functions of the BMCs which requires continuous and dedicated efforts for performing such functions. The members of the BMCs have revealed that by the time a member becomes aware of the procedures and functioning of the BMCs they are either dissolved or transferred to other regions for which new members are appointed and again the process of awarding them about the same procedures and functions begins.
Lack of Cooperation among the Authorities
The study has analyzed both the Forest Laws and the BD laws along with the role played by the authorities constituted under both these categories of laws. Both the Forest Departments as well as the BD Authorities are responsible for the conservation of BR and regulation of Bio-trade within their respective jurisdictions. But surprisingly, the study revealed that there is a lack of cooperation amongst these different sets of Authorities. It has also been found that the Forest Departments are more structured institutionally compared to the newly established BD Authorities. Moreover, the Forest Staff are experienced in these matters and are also even trained professionally. Thus, cooperation with the Forest Departments might enable the BD Authorities to function even more efficiently even through their jurisdictions, and roles are different. But most of the Forest Staff have expressed their ignorance about the provisions of the BD laws as well as lack of communication from the NBA and ASBB.
Further, even there is a lack of cooperation within the BD institutional framework itself. The law makes the NBA responsible for consulting the respective BMCs before making any access to any BR and the appropriation of benefit fees from such access, but no provision has been provided by the law expressly regarding communication between NBA and BMCs in matters relating to conservation of BR. Moreover, most of the members of BMCs had opined that there is a lack of communication from both the NBA as well as ASBB which makes it difficult for them since they are new to this field and also do not have proper resources for carrying out their functions.
Lack of Awareness amongst the Local People
The implementation of these laws will never be possible if the local people do not participate in the process. But the Forest Staffs have revealed that the local people residing in forests are mostly tribal who is more up to utilization of the BR than conserving them. Further, the mechanism established by the law is very complicated for them to understand. At the same time, these local people are not even interested in the process of implementation. Some Forest Staffs have also expressed that most of the illegal Bio-trading takes place with the aid of these local people only. They besides supporting the Forest Staffs supports the smugglers who steal BR from the forests. There are even instances where the local people have attacked the Forest Staffs on duty for restricting illegal activities inside the forests. Further, the encroachments of the forests are made by these local people only.
Lack of Documentation of BR species
It has also been highlighted by the Forest Staff that a lot of access to rare and endangered species of BR from the Forest Areas escapes the vigilance of the Forest Department because they are not properly documented or listed as rare and endangered species. These include mostly NTFP and they are traded to scandalize markets even outside Assam. The Forest Department cannot restrict access to BR from forests by local people since they are dependent on such BR and even they have rights over that BR but it becomes difficult to check whether such BR is a rare species or not.
Even when asked to the ASBB about the most commercially demanded BR that is found in Assam, they revealed that they presently have no data on this matter giving clear evidence about the lack of proper documentation of such BR.
Lack of Value Assessment
It has been well established in the study that for sustainable commercialization of BR, proper value assessment is needed. Such value assessment must be made keeping in consideration the availability of a particular BR species and its demand in the market. However, in Kamrup District, the Forest Staffs and the members of the BMCs revealed that there is a lack of proper value assessment of several species in the region which is leading to a huge amount of degradation of certain species that might have been conserved if the people knew about the value of such species.
Lack of Monitoring System
Under the BD Act, the ASBB is supposed to give approval to applications made by Indian citizens or companies for making access to BR or reject such applications with or without conditions. But, if once the approval is made with certain conditions then the issue that whether the applicant has complied with the conditions as fixed by the ASBB or not becomes very difficult to be monitored since the law is silent as regards the monitoring of such issues. Further, the ASBB has expressed that they have not received any complaint of illegal Bio-trading so far in Assam while on the other hand there are instances where the Forest Staff Members had to sacrifice their lives in their attempts to restrict such illegal activities. This shows that the ASBB lacks a proper monitoring system to check such activities. Further, there are no check posts established by the ASBB like the Forest Departments use to have in their forest areas to check any illegal access to BR, while the jurisdiction of ASBB is much wider than the Forest Departments. The ASBB is mostly concerned in preventing commercial utilization of BR than protecting such BR from illegal Bio-trade.
The Forest Staffs have also revealed that there is the huge commercial exploitation of the forest resources in Assam. Mostly timber that is categorized as the major forest produce is exploited from the forests resulting in huge loss of the BD. But now smuggling of medicinal species, wild species including rare and endangered species, etc. that constitute NTFP are also carried on. One Forest Officer revealed that early this year Pangolins were rescued from Singra Forest Range when they were stolen and were carried away from the forests. Similarly, these offences are so grave in nature that several Forest Staffs were injured or even killed by the offenders. 
Regarding BR access outside the jurisdiction of Forest Departments, the BD Authorities revealed that there are middlemen who work as brokers in the chain of Bio-trade and pays a very little amount to the cultivators while buying their BR produce but sells them at high rates in the market. Such middlemen are not yet caught due to lack of proper support from the LCs who are ignorant about the actual value of their BR and so are happy with whatever they are earning from these brokers. 
Lack of Resources
The Forest Staff complained about a lack of human resources in their departments. They revealed that only 6-8 members are in-charge of a range where there must have been a minimum of 25-30 members in each range. This has created a lot of difficulties in their functioning and as a result, they are not even able to fully secure the entire area under their jurisdictions. Further, they don’t have adequate weapons and equipment to restrict the smugglers from entering the forests while on the other hand the smugglers are mostly equipped with the latest technologically made modern weapons which makes their life most insecure on duty.
The ASBB has only 7 members out of whom 4 are permanent and the rest contractual. While the BMCs are not having proper technical staff for tackling the technical issues related to their functioning. Further, financial resources had always been an issue. They lack proper financial assistance for carrying out their functions efficiently.
CONCLUSION AND SUGGESTIONS
The status of implementation of the ABS system, however, has begun in the State of Assam but the progress is under satisfaction. It has also been found that the laws regulating such systems are not free from lacunas and thereby is inefficient in meeting their principal objectives of Conservation, Sustainable Utilization, and Equitable Sharing of Benefits after utilization of BR.
Thus, it can be suggested that better clarity in the legal provisions by virtue of amendments is required. While at the same time a proper monitoring system is needed to be introduced along with strengthening the capacities of the BD Authorities and the Forest Departments. The LCs must be given some autonomy by allowing them access to the certain common property so that they can nurture such property for satisfaction of their livelihood needs rather than satisfying the State’s demand for economic growth which will ensure capacity building of such LCs encouraging their active participation for achieving Sustainable development. Private entities shall be allowed to invest in this ABS system rather than making it completely government machinery.
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