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Vol. II, p. 620, sec. 10.

Method of procedure. - In The Lace House v. U. S., (1905) 141 Fed. 869, 73 C. C. A. 103, it appeared that an appraising officer, having no knowledge as to the value of certain imported articles, sent samples to the appraiser at the port of New York for information. It was held that this was legal, and that the right so to do or to use any other available means was conferred by section 10, authorizing appraising officers to use “all reasonable ways and means” in their power in ascertaining the value of merchandise.

Pro forma invoice. — In U. S. v. Bennett, (1909) 176 Fed. 580, it appeared that entry was made on a pro forma invoice and the value stated therein was approved by the appraiser, who also, however, approved the lower value given in a consular invoice subsequently produced by the importer. It was held that duty should have been assessed on the basis of the latter value.

Must be examination of goods advanced in

value. --- An appraiser may not legally advance the value of imported merchandise not actually before him, or not represented by sufficient samples, even though he have before him one package in ten, as prescribed by sec. tion 2901, R. S., 2 Fed. Stat. Annot. 680. If these packages do not represent every variety of goods, such representation must be had by securing further packages or samples for examination. U. S. v. Beer, (C. C. A. 1906) 150 Fed. 566, affirming (1905) 142 Fed. 199.

Failure to appraise at true value. - Merchandise having been erroneously invoiced at an excessive value, the appraiser merely accepted that value as being sufficiently high, without making any effort to ascertain the true value, as required by section 10. It was held that the appraisement was therefore invalid. U. S. v. Muller, (1907) 158 Fed. 405, 85 C. C. A. 515, affirming 152 Fed. 575.

Right to remove from district for examination. — See under page 712, sec. 2.

Vol. II, p. 622, sec. 13.

Jurisdiction.-In U, $. v. Taylor, (1909) 171 board's conclusions as to value, its reappraiseFed. 152, it appeared that part of the evi- ment was conclusive under said seetion. dence was taken before one general appraiser Grubnau v. U. S., (C. C. A. 1910) 176 Fed. and part before another, who decided the case 904, affirming (1909) 171 Fed, 284, later, but by aversight failed to consider the The provisions of this section making deevidence taken before the first general ap- cisions of appraising officers final and conpraiser. It was held that this oversight was clusive does not prevent inquiry as to whether only an error of procedure, and did not de such officers acted legally; and evidence is prive him of jurisdiction.

admissible to show that items independent Right to reappraisement of seized goods. - of the actual value have been included in the The fact that goods have been seized for appraised value. Appraisers may not cut undervaluation does not deprive the consignee off all inquiry into their action by merely or owner of the right of reappraisement given stating that an item was added “to make under this section. The Lace House v. U. S., market value.” Erlanger v. U, S., (C. C. A. (C. C. A. 1905) 141 Fed. 869,

1907) 154 Fed. 949, affirming 152 Fed, 576. Not limited to proceedings under this Act. Where the Board of General Appraisers - A District Court of the United States has misinterprets a portion of the evidence, a jurisdiction of an action of debt to recover legal error is committed, making it neces. duties due from an importer to the United sary to see if the error works injustice, and States, which through accident, mistake, or proceedings for review may be initiated by fraud have not been paid, the government not protest under section 14. U. 8. v. Havi. being limited to its remedy by summary pro- land, (1909) 167 Fed. 414, affirmed (1910) ceedings against the goods under sections 13 177 Fed, 175, 100 C, C. A. 637. and 14, or other provisions of the tariff laws Presumption of correctness. - In the abfor the collection of duties, which are not sence of evidence to the contrary, it will be only a charge against the goods, but also a presumed that an appraisement by a local personal debt of the importer. U. S. v. Na- appraiser, under section 13, was in conformtional Fibre Board Co., (1904) 133 Fed. ity with law and was valid. U. S. v. Curnen, 596.

(1906) 146 Fed. 45, 76 C. C. A. 503, reversing Reviewability of reappraisement. — Under (1904) 136 Fed. 807; Vandiver v, U. S., this section, providing that decisions by the (1907) 156 Fed. 961, 84 C. C. A, 522. Board of General Appraisers in reappraise. Invalid reappraisement - dutiable value. ment cases shall be "final and conclusive,” it - In U. S. v, Curnen, (1906) 146 Fed. 45, 76 was clearly intended that such decisions shall C. C. A. 503, reversing (1904) 136 Fed. 807, not be open to judicial review, except to in- it appeared that the value of certain imquire whether the appraisers have exceeded ported merchandise was advanced by the local the authority conferred upon them by law or appraiser, and the importers brought rehave otherwise acted illegally or fraudu appraisement proceedings before a general lently; and where there was no charge that appraiser and a Board of General Appraisthe Board of Appraisers had acted illegallyers, as provided in section 13. The reappraisein denying the importers a hearing and op- ments being defective and void, but the apportunity to produce testimony in the matter, praisement by the local appraiser being valid, and there was some evidence to support the it was held that duty should be assessed on the value found by the local appraiser, rather than the invoice value.

Reliquidation – duty of collector. - The Board of General Appraisers sustained an importer's protest directing that the collector should reliquidate the duties at the rates appearing to be applicable" from the invoices, samples, or record,” or, in the absence of sufficient data, should reliquidate at the rate of forty per cent. ad valorem. It was held that the terms of this decision did not require the collector to consider data outside of the record made before the board. U. S. 1. Hunter, (1907) 153 Fed. 873, 83 C. C. A. 55.

Failure to examine goods on reappraisement. — In U. S. v. Murphy, (1898) 136 Fed. 811, it appeared that on appeals from appraisements by the local appraiser of im ported merchandise taken by the collector of customs under section 13, the general ap. praiser who made the reappraisements did not have before him the merchandise in ques.

tion, nor samples thereof, as the merchandise had passed out of the possession and control of the importers, and the collector had not ordered its return, in accordance with the terms of a bond which had been given by the importers under R. S. sec. 2899, 8 Fed. Stat. Annot. 679. It was held that the reappraise. ments were void, and that the duties should be assessed on the basis of the values found by the local appraiser, and not those found by the general appraiser.

Mode of correcting errors in procedure. — Where a general appraiser through oversight failed to consider a portion of the evidence in a reappraisement case which he decided, it was held that the remedy of the aggrieved party was by appeal for reappraisement by à Board of General Appraisers, as provided in section 13, rather than by protest as provided in section 14. U. S. v. Taylor, (1909) 171 Fed. 152.

Necessity for certificate of appraisement. – See under this title, vol. 2, p. 693, sec. 2950.

Vol. II, p. 624, sec. 14.

Amendment. This section was amended Protests held sufficient. — A protest claimby Act of May 27, 1908, ch. 205, 35 Stat. L. ing free entry of an importation of tapioca 403, 1909 Supp. Fed. Stat. Annot. 109.

flour under paragraph 646 of the Tariff Act · Protest. - A protest against the assess of Aug. 27, 1894, which provided for the free ment of duty which does not point out dis entry of tapioca, was held to be sufficient to tinctly and specifically the proper rate of advise the collector that the exemption from duty is not sufficient. In re Solvay Process duty was in fact claimed under paragraph Co., (1905) 134 Fed. 678; Fuld v. U. S., 677 of the Act of July 24, 1897, which con. (1906) 143 Fed. 920.

tains an identical provision, where such act A protest is not sufficient that claims that was the one then in force and which governed the merchandise is free of duty under a cer. the importation. Shaw v. U. S., (1903) 122 tain paragraph of the Tariff Act, though as Fed. 443, 58 C. C. A. 425, reversing (1902) a matter of fact it is free of duty under an 117 Fed. 366, set out in the original note. other paragraph of the free list of the same In Fuld v. U. S., (1907) 152 Fed. 165, 81 Act, to which the attention of the collector C. C. A. 417, an importer's protest read: is not called in the protest. U. S. v. Knowles, “Protest is hereby made against ... your (C. C. A. 1903) 126 Fed. 737, reversing 122 decision assessing duty at thirty-five per Fed. 971.

cent. ad valorem, or other rate or rates, on A protest is sufficient which, though im lithographic prints, krippen, mechanical perfectly expressed, may be understood when cards, etc., covered by entries below named. read in connection with the statute referred ... This protest is intended to apply sepato therein; and the fact that the collector rately and collectively to every part of goods understood the protest is relevant. Lothrop assessed under paragraph 418, as well as to v. U. S., (1908) 164 Fed. 99.

all other goods assessed at thirty-five per Where, in reliquidating an entry pursuant cent. all valorem.It was held that the proto a decision of the Board of General Ap test was not insufficient because no part of praisers rendered under this section the col. the importation in question was assessed at lector fails to allow the importer all he is the rate of thirty-five per cent, under paraentitled to under such decision, the importer graph 418, or elsewhere, but should be conmay legally file a protest against the action strued as relating to lithographic prints and of the collector, as provided in this section. booklets assessed at other rates and under U. S. v. Dickson, (C. C. A. 1905) 139 Fed. another paragraph than were mentioned in 251, affirming (1904) 131 Fed. 573.

the protest. While alternative grounds of dissatisfac In Woodruff v. U. S., (1896) 154 Fed. 861, tion may properly be stated in protests it appeared that importers protested against against decisions by collectors of customs, the action of a collector of customs in conthis rule does not permit the enumeration of sidering a certain amount as the entered a long list of paragraphs, many of which are value, and asserted that he had erred in failentirely remote, with the purpose of cover. ing to regard the fact that said amount ining everything. Under the provision in sec. cluded some nondutiable items. It was held tion 14, that protests shall set forth “dis. that this statement of objections was suffitinctly and specifically " the 'importers' ciently distinct and specific to satisfy the grounds of objections, it is not enough that requirements of section 14. the provision ultimately relied upon can be In U. S. 1'. Leerburger, (C. C. A. 1908) 160 found somewhere in the protest. Lichten Fed. 651, affirming (1907) 155 Fed. 146, ma. stein v. U. S., (1909) 175 Fed. 1016.

terials dutiable at fifty cents per pound as " woven fabrics ... in the gum," under the rectly assessed. It was held that the protest first clause of a tariff paragraph, were as. should be considered restricted to the invoice serted in an importer's protest to be duti. which it specified. able "at sixty cents per pound ... under In U. S 1. Bayersdorfer, (C. C. A. 1903) the first clause, ... being woven fabrics 126 Fed. 732, reversing 122 Fed. 968, it apin the piece, dyed." This rate and descrip peared that an importer filed a protest tion (" dyed”) pertained to the second clause, against the assessment of duty by a collector and not the first. It was held that the pro. of customs, claiming therein that the mertest referred sufficiently to the first clause, chandise was either dutiable at a less rate

In Helmrath 1. C. S., (1904) 135 Fed. or was free of duty, under certain paragraphs 912, affirmed (C. C. A. 1906) 145 Fed. 36, it of the dutiable and free lists of the Tariff appeared that an importer protested against Act, which he specified in his protest. The the payment of duty on ninety-nine skins, board of general appraisers decided that classified as hides, in regard to which he the assessment was erroneous, and that the stated in his protest, "each of which weighs merchandise should have been classified as under twelve pounds; and looking to you for free of duty under another paragraph than the refund of duty on these ninety-nine skins, those cited in the protest, but that the proI remain," etc. It appeared that twelve test should be overruled on the ground that, pounds is the dividing line between hides and in not referring to the proper paragraph, it skins, and that paragraph 664 is the only failed to satisfy the requirements of section paragraph authorizing the admission of such 14, which prescribes that an importer shall skins free of duty. It was held that the pro set forth in his protest “distinctly and test was sufficient.

specifically ... the reasons for his objecIn Weil v. U. S., (1900) 124 Fed. 1006, it tions” to the assessment. It was held that appeared that certain long-haired Russian this action was correct. calfskins were classified as dutiable as “hides In Corbitt, etc., Co. v. U. S.. (1907) 153 of cattle," under paragraph 437, when they Fed. 648, it appeared that goods which should should have been classified as free of duty, have been classified free of duty under a under paragraph 664 of said Act covering paragraph relating to “ jute bagging” were “ skins of all kinds, raw.” The importers asserted in the importers' protest to be free protest against the assessment of the co) under a paragraph relating to “burlaps," lector did not refer to the proper paragraph and there was no suggestion that the im(664), but only to paragraphs 561 and 562 porters at the time of filing the protest had of said Act, which relate respectively to in mind the former provision. It was held “ furs, undressed,” and “fur skins." It was that the protest did not set forth the im. held that this was a sufficient compliance porters' objections “distinctly and specifiwith the requirement in section 14.

cally,”. Within the meaning of section 14. In U. S. v. Leerburger, (C. C. A. 1908) 160 Where an importer protests against the Fed. 651, affirming (1907) 155 Fed. 146, assessment of duty on the ground of an al. goods dutiable under one paragraph of a leged application of the similitude clause of Tariff Act were asserted by an importer in the Tariff Act, unless the protest contains his protest to be dutiable under another reference to said provision it is not suffiparagraph, but the language of the protest ciently distinct and specific to meet the reindicated an intention to cite the former. It quirements of section 14. U. S. v. Dearberg, was held that the protest should be con (c. C. A. 1905) 143 Fed. 472, reversing strued as referring to the former.

(1904) 135 Fed. 245. Protest held insufficient. — In Boker r. U. A protest referring to “hats made from S., (1905) 140 Fed. 115, affirmed (C. C. A. so-called artificial silk” cannot be construed 1906) 145 Fed. 1022, it appeared that cer: as relating to hats made from real horsehair. tain importers protested against the assesg. U. S. v. Wanamaker, (1910) 175 Fed. 900, ment of duty on an importation, stating in 99 C. C. A. 390, reversing (1909) 169 Fed. their protest merely the contention that the 664. merchandise was dutiable under a certain In Rosenberg r. U. S., (1906) 146 Fed. 84, paragraph of the Tariff Act, with no mention it appeared that certain imported merchan. of the grounds of their objections or of the dise was erroneously classified as wool wear. rate of duty claimed to be applicable, and ing apparel, instead of as manufactures in the paragraph cited was the one under which chief value of fur. The importers, in produty had been assessed, and was a long one, testing against the classification, stated as containing many subdivisions and different reasons for their objection merely that the rates of duty. It was held that the protest merchandise was “dutiable at the appropri. was insufficient, under the rule in section 14 ate rate and under the proper paragraph acthat protests must be specific and distinct cording to the component material of chief in the statement of objections to the assesg. value." It was held that this did not meet ment of duty.

the requirement of section 14 that an imIn U. S. v. Hartley, (1905) 140 Fed. 969, porter in protesting shall set forth “dig. it appeared that certain imported merchan tinctly and specifically ... the reasons for dise, covered by an entry embracing three in his objections." voices, was all subjected to the same rate of Certain importers, in protesting against dnty, which, it appeared, was excessive as to the assessment of customs duty, based their one of the invoices. In protesting against objections on an inapplicable paragraph of the rate of duty the importer specified one the Tariff Act, but named the correct rate of of the two invoices on which duty was cor duty, it happening that the rate provided in said paragraph was the same as in the para. after the ascertainment and liquidation of graph that should have been referred to in the duties. the protest. There was nothing in the terms For the purpose of ascertaining the date of the protest to direct the attention of the for filing protests, importers are bound to collector of customs to the proper paragraph take notice of the dates given in the liquidaor to suggest that the importers had inad tion bulletin publicly posted as prescribed by vertently referred to the wrong paragraph the customs regulations; and, in case of a and had intended to refer to the right one. conflict between the bulletin and notations It was held that the protest was not suffi on the entry, they should be governed by the ciently distinct and specific. U. S. v. Fleit. former. U. S. r. Wyman, (1907) 156 Fed. mann, (1905) 137 Fed. 476, 69 C. C. A. 624, 97, 84 C. C. A. 123. affirming (1904) 131 Fed. 396.

Pay duty as well as file protest. - In U. Construction of protest. — In U. S. 0. S. v. Tiffany, (C. C. A. 1906) 151 Fed. 473, Bayersdorfer, (C. C. A. 1903) 126 Fed. 732, reversing (1905) 137 Fed. 971, it appeared reversing 122 Fed. 968, it appeared that the that a collector of customs reliquidated the Board of General Appraisers had before it duty on imported merchandise at an inseveral protests relating to the classification creased rate, and brought an action for the of certain merchandise, one of which stated amount thus becoming due. The importers objections to the collector's assessment that defended on the ground that the rate aswere not stated in the other protests. It wassessed was illegal. It was held that questions held that the presence of the former protest as to rate could not be raised in such proceedwas of no moment as affecting the construc ings; that the Board of General Appraisers tion of the latter protests.

was created as a special tribunal having, subTime for lodging. - This section, permit ject to review by the courts, exclusive juristing protests against decisions of collectors diction over controversies as to the rate of of customs to be filed “within ten days duty on importations; that the importers' after but not before " liquidation of the en- only remedy was to pay under protest the tries, fixes definitely the time within which duties found due by the collector; and that a protest must be filed; and, if not filed unless they did this the collector's decision within this period, a protest is invalid. U. was “ final and conclusive," as provided in S. v. Wyman, (1907) 156 Fed. 97, 84 C. C. said section. A. 123.

Amendment of protest. — In U. S. v. BayIn Sgobel v. Robertson, (1893) 126 Fed. ersdorfer, (C. C. A. 1903) 126 Fed. 732, re577, it appeared that at the time of the orig tersing 122 Fed. 968, it appeared that in inal liquidation of duty on an importation appealing from a decision of the Board of of merchandise, the importers failed to pro General Appraisers, an importer set forth test against the exaction of duty on certain in his petition a claim based on a paragraph charges; but later, on the reliquidation of of the Tariff Act not referred to in his prothe entry solely to include a damage allow test filed with the collector and passed on ance, they filed a protest against the duty by said board. It was held that this was not on the charges, which had not been affected permissible. in any way by the reliquidation. It was Waiver of defect. — On appeal by the held that the protest was within the require. United States from a decision of the Board ment of section 2931, R. S. U. S. [repealed of General Appraisers, which reversed the by Act of June 10, 1890, sec. 29, 2 Fed. Stat. assessment of duty by a collector of customs, Annot. 935] that protests against excessive where no statement of error was made by exactions of duty shall be filed “ within ten the appellant in regard to the sufficiency of days after the ascertainment and liquidation the protest on which the proceedings before of the duties."

said board were based, it was held that this Where, under instructions of the Secretary fact constituted a waiver by the United States of the Treasury, and upon due notice to the of an alleged defect in the protest. U. S. v. importers, an entry of imported merchandise Brown, (1903) 127 Fed. 793, 62 C. C. A. was tentatively liquidated, while the final 473, affirming 121 Fed. 605. liquidation was held in abeyance over a year, Abandonment of protest. - Where importpending the possibility of a change of rates, ers abandoned protests before the Board of it was held that the final liquidation was the General Appraisers without taking testimony, liquidation within ten days after which the it was within the sound discretion of the importers might legally file a protest. U. S. board to refuse to reopen the cases or restore v. Franklin Sugar Refining Co., (1905) 137 them for hearing: and on appeal to the CirFed. 677.

cuit Court the importers were not entitled In Frost V. Saltonstall, (1887) 129 Fed. to introduce further evidence. Strohmeyer, 481, it appeared that notice was posted in a etc., Co. 1'. U. S., (1910) 180 Fed. 636. custom house that it would be closed June Duty of collector to transmit protest, 17th - a holiday observed by local custom, It is a breach of duty for a collector of cusbut not established by law. Certain import toms to refuse to forward to the Board of ers having notice of the closing of the cus General Appraisers protests which have been tom house on that day, which was the tenth filed under section 14, and for this breach the day after the liquidation of their entry, filed protestant is entitled to damages. Kendall a protest on the day following. It was held v. Lyman, (1908) 161 Fed. 652. that the protest was filed in accordance with But a collector of customs is not liable to the requirements of R. S. sec. 2931, providing importers for the failure of his predecessor that protests shall be made within ten days to send the importers' protests to the Board

to it

952

of General Appraisers. Gulbenkian v. Strana decision of the Circuit Court on appeal from han, (1907) 158 Fed. 836.

the Board of General Appraisers, and a subDamages for failure to forward protest. — sequent decision of the board, the Secretary Only nominal damages are recoverable for à of the Treasury should give greater considbreach of the duty of a collector of customs to eration to the decision of the court. (1903) forward an importer's protest to the Board 25 Op. Atty.-Gen. 81. of General Appraisers, where the breach is How far binding on Treasury Department. technical, and actual damage has not been - The Secretary of the Treasury and collectsustained. Kendall 1. Lyman, (1908) 161 ors of customs are bound by classification deFed. 652.

cisions of the Board of General Appraisers, Liability of government for delay in for when unappealed from, only so far as such tarding protest. - Where there was a delay decisions affect the goods immediately before of several years by customs officers in for the board for classification. (1903) 25 Op. warding an importer's protests to the Board Atty.-Gen. 81. of General Appraisers for decision, and dur- Default on hearing of appeal — waiver by ing this period the value of the importer's government. — Where importers who failed evidence became impaired, it was held that through inadvertence to appear on the hearno right against the government arose by ing of an appeal taken by them to the Board reason of this delay, particularly when not of General Appraisers, which entered a deintentional or negligent. Franklin Sugar Re. fault, and affirmed the action of the collector, fining Co, v. U. S., (1907) 153 Fed. 653. afterward applied for and obtained an order

Jurisdiction. - The jurisdiction of the Cir. from the Circuit Court directing further tescuit Courts of the United States in respect to timony to be taken, and the government made customs duties is concurrent with that given no objection to such order, and appeared purto the Board of United States General Ap. suant thereto, and cross-examined the wit. praisers. U. S. r. Johnson, (1906) 145 Fed. nesses, it waived the right to raise the objec1018.

tion thereafter that the appellants were The Board of General Appraisers, under concluded by the default before the board of the authority given in this section to "ex appraisers. In re Myers, (1903) 123 Fed. amine and decide the case” submitted to it by a collector of customs, is required first

“Decision” of collector. - Under this secof all to determine its jurisdiction, includ- tion which confers upon the Board of General ing the validity of the protest. U. S. 0. Appraisers power to review decisions of the Brown, (1903) 127 Fed. 793, 62 C. C. A. collector, it has been held that the board had 473, affirming 121 Fed. 605.

jurisdiction to review the action of the colThe Board of General Appraisers has ju lector in reliquidating an entry although it risdiction over cases relating to the exaction was done piursuant to an order of the Secre. of fees on packed packages, though no entry tary of the Treasury. U. S. v. Beebe, (1903) of such packages may ever have been made at 122 Fed. 762, 58 C. C. A. 562. the custom house.U. S. 1. American Ex Correction of decision. - In U. S. v. Leempress Co., (1907) 154 Fed. 996.

ing, (1907) 153 Fed. 489, it appeared that Surrender of jurisdiction once acquired. - two months after a reappraisement decision Where a board of three general appraisers had been made by a Board of General Aphas, as provided in section 14, acquired juris praisers, the board amended it in order to diction over a case through the transmission correct an error. It was held that the corby the collector of the papers in the case, it rection was illegal is then the duty of that board to “examine Suspension of trial until payment of duties. and decide the case thus submitted,” as pre- - In an action against an importer for unseribed by said section; it may not after paid duties, the Circuit Court has ample ward surrender its jurisdiction to another power to suspend the trial until the importer, board; and a rule adopted by the general ap- by payment of the duties assessed, may put praisers is invalid which, in order to prevent himself in position to try the question as to conflicting decisions, provides for the transfer classification of the goods before the Board of a case from one board to another when the of General Appraisers. ('. S. 1. Tiffany. majority of all the general appraisers is of (1907) 153 Fed. 969, 83 C. C. A. 81; U. S. 2. opinion that a proposed decision in the case Tiffany, (1907) 154 Fed. 740. by one board conflicts with a previous deci. Mere delay in the payment of duties on imsion. Prosser v. U. S., (C. C. A. 1907) 158 ported merchandise does not deprive the Fed. 971, reversing 154 Fed. 721.

Board of General Appraisers of power to pass Evidence. - In Knauth 1. U. S., (1907) 155 upon the question of the proper classification Fed. 144, the Board of General Appraisers of imported merchandise under this section, admitted as evidence in a case testimony where a protest has been filed within the time taken previously in another case. This was prescribed in said section. V. S. 1. Tiffarly, done over the objection of counsel, who had (1907) 154 Fed. 740. not appeared in the previous case nor had Recovery of duties in Court of Claims. --opportunity of cross-examining the witnesses Where importers had failed to proceed for therein; and the articles involved in the two the recovery of excessive duties by filing procases were not shown to be the same. It was tests, and thus securing a decision by the held that such evidence should not have been Board of General Appraisers, as provided by admitted.

this section, it was held that they were pre. Decision in conflict with previous court de- cluded from recovery in the Circuit Court as cision. -- Where there is conflict between a a Court of Claims under the Tucker Act

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