By: Springer, et al. S.B. No. 2040

(In the Senate - Filed March 9, 2023; March 21, 2023, read first time and referred to Committee on Business & Commerce; April 19, 2023, reported adversely, with favorable Committee Substitute by the following vote: Yeas 9, Nays 0; April 19, 2023, sent to printer.) Click here to see the committee vote

COMMITTEE SUBSTITUTE FOR S.B. No. 2040 By: Nichols

A BILL TO BE ENTITLED

AN ACT

relating to the continuation and transfer of the regulation of willed body programs to the Texas Funeral Service Commission, the regulation of willed body programs, non-transplant anatomical donation organizations, and anatomical facilities, and the creation of the State Anatomical Advisory Committee; requiring registration; authorizing fees; authorizing an administrative penalty.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

ARTICLE 1. STATE ANATOMICAL ADVISORY COMMITTEE; TEXAS FUNERAL

SERVICE COMMISSION

SECTION 1.01. The heading to Chapter 691, Health and Safety Code, is amended to read as follows:

CHAPTER 691. DONATION OF BODIES AND ANATOMICAL SPECIMENS

[ANATOMICAL BOARD OF THE STATE OF TEXAS]

SECTION 1.02. The heading to Subchapter A, Chapter 691, Health and Safety Code, is amended to read as follows:

SUBCHAPTER A. GENERAL PROVISIONS; STATE [ORGANIZATION OF]

ANATOMICAL ADVISORY COMMITTEE [BOARD OF THE STATE OF TEXAS]

SECTION 1.03. Section 691.001, Health and Safety Code, is amended by amending Subdivision (1) and adding Subdivisions (1-a), (4), (5), and (6) to read as follows:

(1) "Advisory committee [Board]" means the State Anatomical Advisory Committee [Board of the State of Texas].

(1-a) "Anatomical facility" means a facility in this state inspected and approved by the commission under Section 691.034 that does not operate as a willed body program or a non-transplant anatomical donation organization.

(4) "Commission" means the Texas Funeral Service Commission.

(5) "Non-transplant anatomical donation organization" means a person accredited to engage in the recovery, receipt, screening, testing, processing, storage, or distribution of tissue or human remains for any purpose other than transplantation into a living individual in this state.

(6) "Willed body program" means a program operated at an institution of higher education in this state that allows a living individual to donate the individual's body or anatomical specimen for educational or research purposes.

SECTION 1.04. Section 691.002, Health and Safety Code, is amended to read as follows:

Sec. 691.002. ADVISORY COMMITTEE [COMPOSITION OF BOARD]. (a) The State Anatomical Advisory Committee is established to advise and provide expertise to the commission on matters related to the regulation and operation of willed body programs, non-transplant anatomical donation organizations, and anatomical facilities in this state.

(b) The advisory committee is composed of seven members appointed by the commission as follows:

(1) two members who represent institutions of higher education that operate willed body programs;

(2) two members who represent non-transplant anatomical donation organizations;

(3) two members who represent anatomical facilities; and

(4) one public member [The Anatomical Board of the State of Texas is composed of one representative from each school or college of chiropractic, osteopathy, medicine, or dentistry incorporated in this state].

(c) Members of the advisory committee serve two-year terms [(b) On March 1 of each odd-numbered year, the chief executive officer of each institution described by Subsection (a) shall appoint as the institution's representative on the board one professor of surgery or of basic anatomical sciences who is associated with the institution].

(d) An advisory committee member may be reappointed.

(e) [(c)] Appointments to the advisory committee [board] shall be made without regard to the race, creed, sex, religion, or national origin of the appointees.

(f) Sections 2110.002 and 2110.008, Government Code, do not apply to the advisory committee.

SECTION 1.05. Section 691.007(c), Health and Safety Code, is redesignated as Section 691.011, Health and Safety Code, and amended to read as follows:

Sec. 691.011. RECORDS. [(c)] The commission [board] shall keep identification records of each body donated to the commission [board] and of each body or anatomical specimen distributed by the commission [board].

SECTION 1.06. Section 691.008(a), Health and Safety Code, is redesignated as Section 691.012, Health and Safety Code, and amended to read as follows:

Sec. 691.012. FEES. (a) The commission [board] may set and collect reasonable and necessary fees for the cost of administering this chapter, including:

(1) receiving and distributing bodies and anatomical specimens; and

(2) conducting inspections of willed body programs and anatomical facilities.

(b) The commission by rule may establish fees for the registration of willed body programs and non-transplant anatomical donation organizations in amounts reasonable and necessary to cover the cost of administering this chapter.

(c) A non-transplant anatomical donation organization is exempt from a fee described by Subsection (a)(1).

SECTION 1.07. Section 691.010, Health and Safety Code, is amended to read as follows:

Sec. 691.010. PUBLIC INFORMATION AND PARTICIPATION; COMPLAINTS. (a) The commission [board] shall prepare information of public interest describing the functions of the commission under this chapter [board] and the commission's [board's] procedures by which complaints are filed with and resolved by the commission [board]. The commission [board] shall make the information available to the public and appropriate state agencies.

(b) The commission [board] by rule shall establish methods by which service recipients can be notified of the name, mailing address, and telephone number of the commission [board] for the purpose of directing complaints to the commission [board]. The commission [board] may provide for that notification by including the information on each written contract relating to bodies willed or donated to an entity regulated by the commission [board] or authorized by the commission [board] to receive bodies.

(c) The commission [board] shall keep an information file about each complaint filed with the commission [board] relating to its functions under this chapter. If a written complaint is filed with the commission [board] relating to a person or an entity regulated by the commission under this chapter [board], the commission [board, at least as frequently as quarterly and until final disposition of the complaint,] shall periodically notify the parties to the complaint of the status of the complaint until final disposition unless notice would jeopardize an undercover investigation.

(d) The commission [board] shall develop and implement policies that provide the public with a reasonable opportunity to appear before the commission [board] and to speak on any issue under the jurisdiction of the commission [board].

SECTION 1.08. Section 691.022, Health and Safety Code, is amended to read as follows:

Sec. 691.022. GENERAL DUTIES. (a) The commission [board] shall distribute bodies and anatomical specimens to [institutions and other] persons authorized to receive a body or specimen under this chapter [them].

(b) The commission [board] shall adopt rules to ensure that each body and anatomical specimen is treated with respect while in the custody of the commission [board] or person authorized to receive the body or specimen [an institution represented on the board is treated with respect].

(c) The commission shall adopt rules, establish procedures, and prescribe forms necessary to administer and enforce this chapter, including rules establishing registration and inspection requirements and procedures. The commission may issue a reprimand, assess an administrative penalty, impose other penalties, or revoke, suspend, or probate a registration or other authorization for a violation of this chapter or a commission rule adopted under this chapter, including a violation related to an inspection conducted under Section 691.034, in the manner provided by Chapter 651, Occupations Code.

(d) This section does not apply to a body or anatomical specimen donated to a registered non-transplant anatomical donation organization.

SECTION 1.09. Section 691.0225, Health and Safety Code, is amended to read as follows:

Sec. 691.0225. INFORMATIONAL DOCUMENT. The commission [board] shall develop a document to inform a person making a gift of a decedent's body or anatomical specimen about the options for donation authorized under this chapter [for purposes of education, including forensic science education, or research of the risks and benefits associated with donation]. The commission [board] shall make the document available on the commission's [board's] Internet website.

SECTION 1.10. Section 691.023, Health and Safety Code, is amended to read as follows:

Sec. 691.023. DUTY TO DELIVER CERTAIN BODIES TO COMMISSION [BOARD]. (a) An officer, employee, or representative of the state, of a political subdivision, or of an institution having charge or control of a body not claimed for burial or a body required to be buried at public expense shall:

(1) notify the commission [board] or the commission's [board's] representative of the body's existence when the body comes into the person's possession, charge, or control if notified in writing to do so by the commission [board] or the commission's [board's] representative;

(2) deliver the body in accordance with the direction of the commission [board]; and

(3) allow the commission [board], the commission's [board's] representative, or a physician designated by the commission [board] who complies with this chapter to remove the body to be used for the advancement of medical or forensic science.

(b) If the commission [board] does not require a political subdivision or agency of the political subdivision to deliver a body under this section, the political subdivision shall pay all costs of preparation for burial, including costs of embalming.

SECTION 1.11. Section 691.025(c), Health and Safety Code, is amended to read as follows:

(c) A body that is not claimed for burial within 48 hours after a relative receives notification shall be delivered as soon as possible to the commission [board] or the commission's [board's] representative.

SECTION 1.12. Section 691.026, Health and Safety Code, is amended to read as follows:

Sec. 691.026. BODY OF TRAVELER. If an unclaimed body is the body of a traveler who died suddenly, the commission [board] shall direct the institution or other person receiving the body to retain the body for six months for purposes of identification.

SECTION 1.13. Section 691.027, Health and Safety Code, is amended to read as follows:

Sec. 691.027. AUTOPSY. Only the commission [board] may grant permission to perform an autopsy on an unclaimed body. The commission [board] may grant permission after receiving a specific request for an autopsy that shows sufficient evidence of medical urgency.

SECTION 1.14. Sections 691.028(a) and (b), Health and Safety Code, are amended to read as follows:

(a) An adult living in this state who is of sound mind may donate the adult's body by will or other written instrument to the commission [board], a willed body program of a medical or dental school, a non-transplant anatomical donation organization, or another donee authorized by the commission [board,] to be used for the advancement of medical or forensic science.

(b) To be effective, the donor must provide informed consent by signing [sign] the will or other written instrument and it must be witnessed by two adults. The donor is not required to use a particular form or particular words in making the donation, but the will or other instrument must clearly convey:

(1) the donor's intent; and

(2) the donor's acknowledgment that the donor was informed about:

(A) the consequences of the donation before providing consent;

(B) the use the donee plans for the donated body parts; and

(C) if applicable, any body part and the condition in which the body part will be returned to the person designated by the donor.

SECTION 1.15. Section 691.029, Health and Safety Code, is amended to read as follows:

Sec. 691.029. AUTHORITY TO RECEIVE, DISTRIBUTE, AND TRANSFER [ACCEPT] BODIES OR ANATOMICAL SPECIMENS [FROM OUTSIDE THE STATE]. The commission [board] may receive, distribute, and transfer a body or anatomical specimen from inside or [a body transported to the board from] outside this state.

SECTION 1.16. Section 691.030, Health and Safety Code, is amended to read as follows:

Sec. 691.030. COMMISSION'S [BOARD'S] AUTHORITY TO DISTRIBUTE BODIES AND ANATOMICAL SPECIMENS. (a) The commission [board] or the commission's [board's] representative shall distribute bodies donated to it and may redistribute bodies donated to medical or dental schools or other donees authorized by the commission [board] to:

(1) willed body programs of schools and colleges of chiropractic, osteopathy, medicine, or dentistry incorporated in this state;

(2) forensic science programs;

(3) search and rescue organizations or recovery teams that are recognized by the commission [board], are exempt from federal taxation under Section 501(c)(3), Internal Revenue Code of 1986, and use human remains detection canines with the authorization of a local or county law enforcement agency;

(4) physicians; [and]

(5) anatomical facilities; and

(6) other persons as provided by this section.

(b) In making the distribution, the commission [board] shall give priority to the schools and colleges that need bodies for lectures and demonstrations.

(c) If the commission [board] has remaining bodies, the commission [board] or the commission's [board's] representative shall distribute or redistribute those bodies to the schools and colleges proportionately and equitably according to the number of students in each school or college receiving instruction or demonstration in normal or morbid anatomy and operative surgery. The dean of each school or college shall certify that number to the commission [board] when required by the commission [board].

(d) The commission [board] may transport a body or anatomical specimen to an authorized recipient in another state if the commission [board] determines that the supply of bodies or anatomical specimens in this state exceeds the need for bodies or anatomical specimens in this state and if:

(1) the deceased donated the deceased's [his] body in compliance with Section 691.028 and at the time of the donation authorized the commission [board] to transport the body outside this state; or

(2) the body was donated in compliance with Chapter 692A and the person authorized to make the donation under Section 692A.009 authorized the commission [board] to transport the body outside this state.

(e) This section does not apply to a body or anatomical specimen donated to a registered non-transplant anatomical donation organization.

SECTION 1.17. Sections 691.031(a), (b), and (f), Health and Safety Code, are amended to read as follows:

(a) The commission [board] shall adopt rules to ensure that:

(1) each body or anatomical specimen received or distributed under this chapter [by the board] is properly transported;

(2) a label with a [the] statement that the container's contents are derived from human tissue ["CONTENTS DERIVED FROM DONATED HUMAN TISSUE"] is affixed to the container in which the body or anatomical specimen is transported; and

(3) each person who has control or possession of a body or anatomical specimen:

(A) satisfactorily completes the information required on a chain-of-custody form prescribed by the commission [board];

(B) maintains a copy of the form for the person's records; and

(C) transfers the form to any other person to whom control or possession of the body or anatomical specimen is transferred.

(b) The commission [board] may employ a public carrier to transport bodies or anatomical specimens received or distributed by the commission [board].

(f) The sender and receiver of each body or anatomical specimen shall file the records required under this section in accordance with commission [board] rules so that the commission [board] or a district or county attorney may inspect the records at any time.

SECTION 1.18. Section 691.032, Health and Safety Code, is amended to read as follows:

Sec. 691.032. COSTS OF DISTRIBUTION. A person or institution receiving a body or anatomical specimen under this chapter shall pay in a manner specified by the commission [board], or as otherwise agreed on, all costs incurred in distributing the body or anatomical specimen so that the state, a county, a municipality, or an officer, employee, or representative of the state, a county, or a municipality does not incur any expense.

SECTION 1.19. Sections 691.033(a), (b), and (d), Health and Safety Code, are amended to read as follows:

(a) To further medical or forensic science, a willed body program, non-transplant anatomical donation organization, anatomical facility, [school, college,] or other person designated by the commission [board] may use, dissect, operate on, examine, and experiment on a body or anatomical specimen distributed under this chapter.

(b) A willed body program, non-transplant anatomical donation organization, [school, college,] or other person shall keep a permanent record of each body or anatomical specimen received from the commission [board] or the commission's [board's] representative. The record:

(1) must be sufficient to identify the body or anatomical specimen;

(2) must track the body or anatomical specimen from intake to final disposition; and

(3) may be inspected by the commission [board] or the commission's [board's] representative.

(d) To aid prosecutions under Section 42.08, Penal Code, the commission [board] shall adopt rules that clearly state the activities that are authorized by the commission [board] in relation to the use or dissection of a body.

SECTION 1.20. Section 691.034, Health and Safety Code, is amended to read as follows:

Sec. 691.034. REGULATION AND REGISTRATION OF PERSONS AND INSTITUTIONS USING BODIES AND ANATOMICAL SPECIMENS. (a) A willed body program or non-transplant anatomical donation organization may not operate in this state unless the program or organization registers with the commission in the form and manner prescribed by the commission.

(a-1) To be eligible for registration under this section, a non-transplant anatomical donation organization must be accredited by the American Association of Tissue Banks under the association's Standards for Non-Transplant Anatomical Donation. The commission may issue conditional registration to a non-transplant anatomical donation organization that is not yet accredited.

(a-2) The commission [board] shall inspect and may approve willed body programs, anatomical facilities, [institutions] and other persons for the receipt and use of bodies and anatomical specimens under this chapter.

(a-3) A registered non-transplant anatomical donation organization is exempt from an inspection described by Subsection (a-2).

(b) The commission [board] may investigate a willed body program, non-transplant anatomical donation organization, anatomical facility, or other person [or institution] if the commission [board] has reason to believe that the program, organization, facility, or person [or institution] has improperly used a body or anatomical specimen.

(b-1) Notwithstanding Subsection (a-3), the commission may inspect a non-transplant anatomical donation organization as part of an investigation described by Subsection (b).

(c) The commission [board] may suspend or revoke a willed body program's, non-transplant anatomical donation organization's, anatomical facility's, or other person's registration or other [or institution's] authorization to receive and use or dissect bodies or anatomical specimens if the commission [board] determines that the program, organization, facility, or person [or institution] has improperly used a body or anatomical specimen.

(d) A willed body program, non-transplant anatomical donation organization, anatomical facility, or other person [or institution] is entitled to a hearing before the commission [board] or a hearing examiner appointed by the commission [board] before the commission [board] may revoke the program's, organization's, facility's, or person's registration or other [or institution's] authorization to receive and use or dissect bodies or anatomical specimens. The commission [board] shall make all final decisions to suspend or revoke an authorization.

(e) A registered non-transplant anatomical donation organization must inform the commission within the time prescribed by commission rule if the organization loses its accreditation with the American Association of Tissue Banks.

(f) A commission member or holder of any license issued by the commission may not hold an ownership interest in a registered non-transplant anatomical donation organization.

(g) The commission shall adopt rules and procedures necessary to administer this section.

SECTION 1.21. Subchapter A, Chapter 651, Occupations Code, is amended by adding Section 651.005 to read as follows:

Sec. 651.005. REGULATION OF WILLED BODY PROGRAMS, NON-TRANSPLANT ANATOMICAL DONATION ORGANIZATIONS, AND ANATOMICAL FACILITIES. The commission shall regulate willed body programs, non-transplant anatomical donation organizations, and anatomical facilities as provided by Chapter 691, Health and Safety Code, and in accordance with the powers and duties granted by this chapter to the extent necessary to regulate the programs, organizations, and facilities under that chapter.

SECTION 1.22. The following provisions of the Health and Safety Code are repealed:

(1) Section 691.003;

(2) Section 691.004;

(3) Section 691.005;

(4) Section 691.006;

(5) Sections 691.007(a), (b), and (d);

(6) Sections 691.008(b) and (d);

(7) the headings to Sections 691.007 and 691.008; and

(8) Section 691.009.

ARTICLE 2. CONFORMING AMENDMENTS

SECTION 2.01. Article 43.25, Code of Criminal Procedure, is amended to read as follows:

Art. 43.25. BODY OF CONVICT. The body of a convict who has been legally executed shall be embalmed immediately and so directed by the Director of the correctional institutions division of the Texas Department of Criminal Justice [Department of Corrections]. If the body is not demanded or requested by a relative or bona fide friend within forty-eight hours after execution then it shall be delivered to the Texas Funeral Service Commission [Anatomical Board of the State of Texas], if requested by the commission [Board]. If the body is requested by a relative, a bona fide friend, or the Texas Funeral Service Commission [Anatomical Board of the State of Texas], such recipient shall pay a fee [of] not to exceed twenty-five dollars to the mortician for the mortician's [his] services in embalming the body for which the mortician shall issue to the recipient a written receipt. When such receipt is delivered to the Director of the correctional institutions division of the Texas Department of Criminal Justice [Department of Corrections], the body of the deceased shall be delivered to the party named in the receipt or the party's [his] authorized agent. If the body is not delivered to a relative, a bona fide friend, or the Texas Funeral Service Commission [Anatomical Board of the State of Texas], the Director of the correctional institutions division of the Texas Department of Criminal Justice [Department of Corrections] shall cause the body to be decently buried, and the fee for embalming shall be paid by the county in which the indictment which resulted in conviction was found.

SECTION 2.02. Section 404.093(b), Government Code, is amended to read as follows:

(b) This subchapter does not apply to:

(1) funds pledged to the payment of bonds, notes, or other debts if the funds are not otherwise required to be deposited in the treasury;

(2) funds held in trust or escrow for the benefit of a person or entity other than a state agency;

(3) funds set apart out of earnings derived from investment of funds held in trust for others, as administrative expenses of the trustee agency; or

(4) funds, grants, donations, and proceeds from funds, grants, and donations, given in trust to the Texas State Library and Archives Commission for the establishment and maintenance of regional historical resource depositories and libraries in accordance with Section 441.154[; or

[(5) funds under the management of the secretary-treasurer of the Anatomical Board of the State of Texas, as provided by Section 691.008, Health and Safety Code].

SECTION 2.03. Sections 692A.011(a), (b), and (c), Health and Safety Code, are amended to read as follows:

(a) An anatomical gift may be made to the following persons named in the document of gift:

(1) an organ procurement organization to be used for transplantation, therapy, research, or education;

(2) a hospital to be used for research;

(3) subject to Subsection (d), an individual designated by the person making the anatomical gift if the individual is the recipient of the part;

(4) an eye bank or tissue bank, except that use of a gift of a whole body must be coordinated through the Texas Funeral Service Commission [Anatomical Board of the State of Texas];

(5) a forensic science program at:

(A) a general academic teaching institution as defined by Section 61.003, Education Code; or

(B) a private or independent institution of higher education as defined by Section 61.003, Education Code;

(6) a search and rescue organization or recovery team that is recognized by the Texas Funeral Service Commission [Anatomical Board of the State of Texas], is exempt from federal taxation under Section 501(c)(3), Internal Revenue Code of 1986, and uses human remains detection canines with the authorization of a local or county law enforcement agency; [or]

(7) the Texas Funeral Service Commission; or

(8) a non-transplant anatomical donation organization [Anatomical Board of the State of Texas].

(b) Except for donations described by Subsections (a)(1) through (6), the Texas Funeral Service Commission or a non-transplant anatomical donation organization [Anatomical Board of the State of Texas] shall be the donee of gifts of bodies or parts of bodies made for the purpose of education or research that are subject to distribution by the commission or organization [board] under Chapter 691.

(c) A forensic science program that receives a donation under Subsection (a)(5) must submit a report to the Texas Funeral Service Commission [Anatomical Board of the State of Texas] on a quarterly basis that lists:

(1) the number of bodies or parts of bodies that the program received; and

(2) the method in which the program used the bodies or parts of bodies for education or research.

ARTICLE 3. TRANSITIONS AND EFFECTIVE DATE

SECTION 3.01. (a) The Anatomical Board of the State of Texas is abolished but continues in existence until September 1, 2024, for the sole purpose of transferring obligations, property, rights, powers, and duties to the Texas Funeral Service Commission. The Texas Funeral Service Commission assumes all of the obligations, property, rights, powers, and duties of the Anatomical Board of the State of Texas as they exist immediately before the effective date of this Act. All unexpended and unobligated funds under the management of the secretary-treasurer of the Anatomical Board of the State of Texas, as provided by Section 691.008, Health and Safety Code, as that section existed immediately before the effective date of this Act, are transferred to the general revenue fund for the purpose of the Texas Funeral Service Commission administering duties under Chapter 691, Health and Safety Code, as amended by this Act.

(b) The Anatomical Board of the State of Texas and the Texas Funeral Service Commission shall, in consultation with appropriate state entities, ensure that the transfer of the obligations, property, rights, powers, and duties of the Anatomical Board of the State of Texas to the Texas Funeral Service Commission is completed not later than September 1, 2024.

(c) All rules of the Anatomical Board of the State of Texas are continued in effect as rules of the Texas Funeral Service Commission until superseded by a rule of the Texas Funeral Service Commission. An authorization issued by the Anatomical Board of the State of Texas is continued in effect as provided by the law in effect immediately before the effective date of this Act. An authorization pending on the effective date of this Act is continued without change in status after the effective date of this Act. A complaint, investigation, or other proceeding pending on the effective date of this Act is continued without change in status after the effective date of this Act.

(d) Unless the context indicates otherwise, a reference to the Anatomical Board of the State of Texas in a law or administrative rule means the Texas Funeral Service Commission.

(e) The terms of the members of the Anatomical Board of the State of Texas expire on September 1, 2024.

(f) For the state fiscal year ending August 31, 2024, the Texas Funeral Service Commission shall quarterly prepare and submit to the lieutenant governor, the speaker of the house of representatives, the Sunset Advisory Commission, and each standing committee of the legislature with primary jurisdiction over the Texas Funeral Service Commission a report on the progress of the transfer described by Subsection (a) of this section.

(g) Not later than December 1, 2024, the Texas Funeral Service Commission shall submit to the Sunset Advisory Commission and each standing committee of the legislature with primary jurisdiction over the Texas Funeral Service Commission any legislative recommendation necessary to improve the Texas Funeral Service Commission's administration of Chapter 691, Health and Safety Code, as amended by this Act.

SECTION 3.02. (a) Not later than the 60th day after the effective date of this Act, the Texas Funeral Service Commission shall appoint members to the State Anatomical Advisory Committee in accordance with Section 691.002, Health and Safety Code, as amended by this Act.

(b) The members of the Anatomical Board of the State of Texas whose terms expire under Section 3.01 of this Act shall continue to provide advice to the Texas Funeral Service Commission until a majority of the members of the State Anatomical Advisory Committee are appointed under Subsection (a) of this section and qualified. A member of the Anatomical Board of the State of Texas described by this subsection may be appointed to the State Anatomical Advisory Committee if the member is otherwise eligible for appointment under Section 691.002, Health and Safety Code, as amended by this Act.

SECTION 3.03. This Act takes effect September 1, 2023.

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