National Treasury, SA Revenue Services & Statistics SA Annual Reports: adoption; Financial Services Ombud Schemes Bill: delibera

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Finance Standing Committee

21 October 2004
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Meeting Summary

A summary of this committee meeting is not yet available.

Meeting report

22 October 2004


Dr R Davies (ANC)

Documents handed out:

Relationship between Council, Minister, Financial Services Board and Registrar
Summary of Information, Plans for FAIS Ombud
Legal Opinion
Financial Ombuds Scheme Bill [B20-04]
Department: Proposed amendments

The Committee's Report on the Annual Reports of the National Treasury, SARS and Statistics South Africa was adopted.

The Committee continued its deliberation of the Financial Services Ombud Schemes (FSOS) Bill after a discussion on the relationship between the Council, the Minister, the FSB and the registrar. There was much debate on the independence of the Council. It would not operate as a committee of the FSB, but the registrar would serve ex officio on the Council. This was described as relative autonomy. There was also debate on whether the Council had a regulatory function.

Several of the Members expressed concern at the scope of monitoring required by the Act. The members of the Council were part time functionaries, and there was concern that the monitoring function could be all consuming. The Committee deliberated Clauses 6 to 10 of the Bill, and several were flagged, a number pending rewording.


Report on National Treasury, SA Revenue Services and Statistics SA Annual Reports
Dr Davies said that no questions on the umbrella report had been received.

Ms R Taljaard (DA) queried whether no recommendations had been made on the vacancies at the National Treasury. She suggested that in the section relating to Stats SA, the wording "as well as that the merits of recommendations made by the Council" was ambiguous. It created the impression that a specific view might be taken of the way in which Council recommendations were not incorporated in Stats SA deliberations. She was concerned that ambiguous wording might bring into question the Committee's views on the Council and its recommendations and their merits.

Dr Davies suggested changing it to read "the content of recommendations made by the Council". This was accepted.

Dr Davies said that, although the issue of vacancies had been debated, no specific recommendations had been made.

Ms Hogan suggested that this was an appropriate time to include a recommendation, as there was an ongoing problem with vacancies.

Dr Davies suggested that the report include that the vacancy issue in the department needed urgent attention. The report was adopted with the two amendments noted.

Financial Services Ombud Schemes Bill
Mr B Furstenburg (Deputy Director: Financial Services: National Treasury); Ms Ferreira (National Treasury); Mr Battista (National Treasury); Mr G Anderson (FSB: Deputy Executive Officer); Mr L Wessels (FSB: Legal Department); Mr Phiyega (FSB); Mr Gibbon (STRAIT); Ms E van Vuuren (JSE: Legal Counsel); Ms N Stander (Bond Exchange); Mr Justice P Nienaber (Ombudsman for Long-term Insurance) and Mr J Davey (Life Office's Association) attended the meeting.

Dr Davies confirmed that the Committee had deliberated the Bill up to Clause 5 in the previous meeting and recapped on the decisions taken.

Financial Services Board (FSB) submission
Mr Wessels addressed the relationship between the Council, Minister, FSB and the Registrar. In terms of the regulatory architecture of the FSB, external bodies such as the Council envisaged by the FSOS Bill were a common feature. The powers of the Committees varied and were mostly spelled out in the underlying legislation. Members of the FSB Board Committees were appointed by the FSB Board and the Minister appointed those of other committees. All committees were funded through the FSB that in turn was funded by levies raised on regulated entities. The FSOS Council fitted into this overall pattern. These external bodies added good value to the operations of the FSB but did not add excessively to the FSB's costs. The FSOS Council had specific functions set out in the Bill and could not exercise authority beyond these functions. The members of both Advisory Committees and the Council were appointed by the Minister and both were part-time bodies financed through the funds of the FSB. The approval of the FSB was required for their expenditure. The Registrar's office (FSB) performed the administrative work of the Council. It would not engage its own staff and it would not be necessary for the FSB to appoint additional staff. The Council reported to the Minister and to the FSB.

The Council was independent in respect of its composition and functions. To facilitate liaison with the FSB, the Registrar served on the Council with no voting power if the proposed amendment to Clause 3(3) was adopted. The presence of the Registrar on the Council did not impair the independence of the Council nor did it have adverse constitutional consequences. The main function of the FSOS Council was to consider applications for recognition by a scheme against the criteria set out by the Bill. The Council did not itself set those criteria. None of its functions would interfere with the independence or work of a scheme that adhered to the requirements of the Bill. The intention of the Bill in setting criteria for schemes and having monitoring by an external body was to ensure that recognised schemes operated at a certain level of standard. The Council had no authority to appoint any ombud but had to ensure that the ombud was appointed by a body not controlled by industry participants and that the scheme's rules would ensure that the appointee would be fit and proper for the office. Nothing the Council did could affect the independence of an ombud. The promoters considered it preferable that the FSOS Council not be regarded as a committee of the Board, as provided for in Section 10 of the Financial Services Board Act, No 97 of 1990.

In summary, the provisions of the Bill were sufficient to ensure a good working relationship and interaction between the Council and the FSB. The Council would be sufficiently funded but its costs contained. It would be able to perform its functions independently. Those functions would be circumscribed and not unlimited or unreasonable and standard setting for schemes was the objective, not undue interference with their work or independence.

Ms Taljaard said that, although this took the independence of the Council a step further, the submission still relied entirely on analogies with FSB Committees. Mr Wessels had also described Council members as "part-time functionaries" of the FSB. This was not what had been intended. It was suggested that the Registrar's presence did not impair the independence of the Council, but this was problematic. She did not see how the document took the Committee any further in establishing the independence of the Council, beyond the statement that it would not be a committee of the Board.

Ms B Hogan (ANC) did not share Ms Taljaard's concerns about independence. The FSB was the regulator and she did not see the Registrar as a threat to the functions of the voluntary ombuds. If it was conceded that the Council was not a committee of the FSB, there was a fair amount of distance. The Council still had to operate within an institutional framework. She saw the necessity of the independence of the ombuds but was happy with where they were located in the Bill at present.

Dr Davies said that this was a specialist regulatory body and he did not understand the need for extreme independence.

Mr Wessels agreed that the members would be functionaries of the Council, not the FSB. He expressed sympathy with both views on independence. He did not feel it was a monumental question not to have a relationship between the Council and the FSB but said that the Council was there to look at applications and see who the ombuds were to be. To preserve the independence of the ombuds under scrutiny, the regulator should not be too close. He felt a balance had been struck.

Ms Hogan said that the relationship of the Council to the Board and the Minister seemed confused in Clause 8(4). Was the first line of accountability of the Council, the CEO and then the Minister? She would like to think the first line was the Minister. She was also not clear on the functions of the Registrar to the Council. Did the Registrar have oversight functions here? She also asked for clarity on the relationship of the Council to the statutory ombud, if part of the function of the Council was as per Clause 8(2)(b). There seemed a confusion of the roles of Registrar and CEO.
Ms J Fubbs (ANC) expressed concern on the lines of reporting and the lack of clarity on the relationship between the Minister and the Council.

Mr Wessels replied that it might be necessary to reword Clause 8(4). It was unclear to whom the Council was accountable. There needed to be a fine balance as both the Minister and the FSB might have an interest in the report and both needed sight of it. It should, however, be made clear to whom the Council was accountable in the first instance, and he agreed that it would be the Minister. Only Clause 8(2)(b) touched on the relationship of the statutory ombud to the Council. By virtue of the fact that the statutory ombud was also the FAIS ombud acting under another jurisdiction, it implied accountability of the statutory ombud would be the accountability of the FAIS ombud under the FAIS Act. He did not feel it would be necessary to spell this out.

Ms Hogan referred to the presented budget and Clause 8(1)(c) of the Bill and said the question arose again of what the lines of distinction were of the Council and the statutory ombud. If the activities of the statutory ombud were so closely linked to the voluntary schemes, but the statutory ombud was outside the purview of the Committee, problems could arise.

Mr Wessels agreed that this was important and was sure that the Council would avail itself of the facilities of the statutory ombud, for example the education department.

Dr Davies said that he had thought that one objective was that if it was a Board, appeal could be made to it, but an appeal procedure did seem to have been provided for in Clause 12(4). He asked for details on this. He also expressed concern that there did not seem to be any consequence for non-registration. He asked what the consequences were for non-registration or of having registration withdrawn.

Mr Wessels replied that the Clause 12(4) appeal related only to the one instance where the Council might suspend or withdraw recognition. He suggested that it might be a lacuna to look at, would there be an appeal through FAIS.

Dr Davies remarked that if it had been a committee of the Board, there would be a right of appeal. He asked whether a consequence of its not being a committee was that an appellant would have to go to court.

Mr Wessels said there was no provision for appeals on decisions of the Board or committees.

Ms Fubbs referred to Clause 8(1)(b) and related it to the annexures to the submission. Mention had been made of six meetings of the Licensing Committee. This Bill would require awareness campaigns, education and so on and she envisaged a lot of more work for it. She asked who would be monitoring this.

Ms Fubbs asked what would be dealt with by the FSB and what by the Committee in terms of the schemes. Did all schemes go through one "gate", and if so, who held the keys if the Council was the gate?

Mr Wessels said that one might expect that whatever triggered a need for monitoring would be addressed to the FSB. The groundwork would be done by the FSB but on the Council's authority.

Ms Fubbs said that she accepted it was not an independence issue but asked whether, if the body was operating outside the FSB as a Council and not a committee, the Registrar would issue instructions through the Council. How would monitoring happen? She was not aware that the Council could instruct the FSB.

Mr Anderson said that monitoring could be done by Regulations published by the Minister. The FSB could receive reports and present these to the Council. He agreed that administrative work as instructed and required by the Council would take away a lot of monitoring. Revisiting monitoring was not envisaged.

Ms Taljaard said that her concerns about independence were on the overall conceptualisation of the Bill. The original goal of the legislation had been recognition of voluntary ombuds. She was concerned at the relationship between the voluntary ombuds and the statutory ombud. She was still not clear how the statutory ombud would ultimately interact with the voluntary ombuds and that was why she had flagged the independence issue. She was also concerned at the Council's relationship to the Minister. This was not simply a reporting relationship, but there was a need for maximum independence as well as independence from the industry.

Dr Davies ruled that the Committee would shortly deal with the Bill clause by clause and move on from the general conceptual discussion.

Ms Hogan felt the issue of independence was not linked to the question of the relationship of the Council to the statutory ombud and suggested the arguments for and against had been heard and the issue should be put aside and deliberations continued. She was very concerned about monitoring and compliance, however. She was concerned that, because of the peculiar architecture of the Bill, the question of voluntary ombuds dealing quickly with complaints might be compromised. It might be that the statutory ombuds office was part of the problem. In terms of Clause 10(e)(i) - (v), she felt that what held for voluntary schemes should equally hold for the statutory body.

Mr Y Bhamjee (ANC) asked for clarity on the differences between the statutory and voluntary ombud, especially in terms of Clause 8(3).

Ms Taljaard felt it was problematic to rule on the debate on independence, as she did not feel that an adequate answer had been given to her concerns about independence. The relationship between the statutory and voluntary ombuds was complex. Ms Hogan had flagged that what was good for one should be good for the other, but there was a debate on their roles. The overall role of the Council was important and the issue of independence would continue to arise.

Dr Davies replied that there were different opinions on conceptual issues. The Council would be relatively autonomous and its functions were largely determined in the Bill as such. He requested that the debate continue with reference to specific sub clauses. He did not feel the debate would be resolved unless issues were worked on.

Mr Anderson said that he viewed the independence of the Council differently from the interrelationships. He believed that, as the proposals now stood, the independence of the Council could be reinforced by adding to Clause 2 that the Council was an independent body and subject to the Minister's oversight.

Dr Davies pointed out that Clause 2 had already been flagged.

Clause 6: Meetings and decisions of Council
Sub-clause 6(1)
Ms Hogan said that the LOA had suggested a useful amendment, giving the Minister some idea of how the Council was to operate.

Mr Anderson said that this proposal was acceptable, but it was necessary to realise that the rules might change from time to time.

Dr Davies agreed to flag the sub-clause.

Ms Hogan suggested that rules should be set up and then amended and felt it was straightforward.

Mr Anderson agreed and said that he would formulate new wording. The Chairperson flagged the issue.

Sub-clause 6(2)
This was amended by the addition of (b). This was agreed to.

Mr L Gabela (ANC) suggested adding "acting as chairperson" to 6(2)(a) as this would agree with the earlier amendment.

Dr Davies agreed and the wording was to be "The chairperson or the deputy chairperson acting as chairperson …."

Clause 7: Remuneration of Members of Council
This had been amended by the addition of "Minister, after consultation with the", and the replacement of "all reasonable expenses" by "the expenditure".

Ms Hogan suggested that the remuneration and allowances be determined "with the approval of the Minister".

Mr Furstenburg took the point and said that the FSB proposed fees to the Minister who considered them. The Chairperson flagged the clause pending the wording.

Ms Taljaard shared Mr Bhamjee's concern at a cap to this clause. There had to be some guideline and reference to it in the guideline. Ms Hogan felt that the cap issue was addressed by the Minister's approval.
Ms Taljaard asked why the qualification of "reasonable" had been removed. Flexibility was not necessarily advisable. The Chairperson replied that the Minister was now determining the remuneration in consultation with the Board.

Clause 8: Functions of Council and registrar
Sub clause 8(1)(a) - (e)
There were no proposed amendments from the FSB.

Ms Fubbs said her question was linked to the Registrar, administration and the proposed payment. If the Council had to monitor compliance, and looked at sub clause (3), would monitoring be part of the incidental work? She felt monitoring was problematic, both its functioning and cross-function with FAIS.

Mr Anderson replied that the intention of the proposals was that when Council decided it needed certain things to comply with monitoring, FSB would perform. It was also envisaged that the Council would instruct the FSB to prepare booklets for education for example.

Dr Davies said that he understood that the job of the Council would be, if three big life assurance schemes withdrew and fell below the threshold, to monitor them, but the information gathering would be an administrative function.

Ms Hogan suggesting holding over discussion on sub clause (3) until the committee had seen the extent of the monitoring required. In terms of Clause 8(1)(b), she wanted a good idea of what those monitoring functions would involve. It seemed it was not just monitoring compliance for registration but for the entire Act.

Mr Wessels replied that monitoring meant compliance with the Act. The Council would initially look at Clause 10 under 8(1)(a). It would then have the function of continuing oversight of the scheme in those respects. If it appears that Clause 10 was no longer complied with, the Council would have to investigate. He agreed that there was a need to clarify what was meant by the Act and had flagged it.

Ms Taljaard said that Clause 8(1)(b) should be flagged until the debate on the definition of the Act had been resolved as it opened a big arena of jurisdiction. In sub clause (d), she suggested the wording "in consultation" rather than "after consultation". In sub clause (e), she queried whether the reference to "an ombud" referred primarily to a voluntary ombud and felt it opened questions about the relationship with the statutory ombud. The broader question of the architecture was not addressed. She asked if there was any way of bolstering the wording to ensure a stronger emphasis on independence.

Mr Wessels replied that he saw that this Bill related to the recognition of voluntary schemes and the oversight of voluntary schemes. The Council would not involve itself in regulating the statutory ombud and statutory schemes. The Council would only do what it did in terms of facilitating and co-ordinating the activities of the various ombuds. It did not get jurisdiction over other ombuds.

Ms Taljaard said that she felt that the change in the long title created a clear relationship between the statutory ombud and the voluntary ombuds. She asked that it be flagged as she felt there might even be a concern in respect of its constitutionality if the reference to an ombud referred only to voluntary ombuds.

Mr Wessels replied that he did not believe the long title had a significant bearing on the issue. The long title gave the reader the impression that this legislation created a new facility; it was not a matter of relationship.

Dr Davies suggested the lawyers should consider saying that the ombud did not include the statutory ombud. Mr Anderson agreed and said that it could be clearer.

Ms Hogan said that she still did not have a full idea of the monitoring functions for compliance with the Act. The Council was required to monitor, and a set of recognition requirements had been set out. Her question was whether it was the intention of the FSB that the Council monitor ongoing compliance with the entrance criteria.

Mr Wessels replied in the affirmative, and not just with Clause 10 but also with other regulations. It would be difficult to detect compliance but he expected assistance from complainants. Complaints would be addressed to the FSB who would feed them to the Council.

Ms Hogan said that this meant the Council was playing a regulatory function with reference to Clause 10. Although it was styled as monitoring, the Council would have to have access to the information. Compliance would be very broadly based. Dissatisfied clients would go to the Council and it would be like a second court of appeal. She suggested minimising the monitoring of requirements. By expanding the scope of monitoring, there was a very broad scope of interventions. If this was to apply to the voluntary ombuds, it had to apply to the statutory ombud, otherwise there would be unevenness.

Ms Fubbs felt this was a very important issue in the Bill. She felt it went back to the relationship between regulatory functions and the Council's function. She proposed that, if it was made clear that monitoring related specifically to when schemes first came in, then most of the work was overseen by the Registrar with certain requirements having to go through to the Council. Clause 8 was not an administrative issue. She felt it was necessary to ensure that tracking was meant, not just monitoring.

Ms Taljaard felt the Act was very broad in respect of the distinction between standards setting and de facto regulating. If the policy intention was for Council to have a borderline regulatory role, this should be acknowledged. She felt this relationship did not necessarily arise in the long title and felt it did have an impact. Clause 14 effectively increased the powers of the FAIS ombud and hence the debate about the long title and relationships was so important.

Dr Davies said that if there was any attempt to change this, it would 'emasculate' the Council. He would see some practical complications but felt they were constrained. He suggested that "after" was correct in Clause 8(2)(d), as "in" would give veto. He felt it was clear that the provisions did not apply to the performance of the FAIS ombud. He repeated that he felt that there was relative autonomy of the Council. He pointed out that the majority of the Committee supported this view and reiterated the need to move on.

Mr Wessels said the objective of the Bill was to provide a facility where the consumer could have a complaint dealt with. The assistance of the voluntary schemes was being invoked. Minimum criteria had been set out in the Act and these would be considered in an application and kept in view. It was essential to bear in mind that monitoring should be read against what was determined in Clause 10. When the Council checked compliance it did so against the background of Clause 10. In Clause 10(1)(b), the Council had to have its own independent body to monitor. Daily monitoring for compliance would not be the duty of the FSOS Council.

Dr Davies suggested that if finality was not reached, it might be necessary to put it to a vote.

Ms Taljaard said that the fact of the expansion of the FAIS ombud in Clause 14 and the way that expansion sat with the relationship with the other ombuds, meant that the impact was crucial to how the legislation was viewed. She accepted there were differences of opinion.

Ms Hogan said that she would like schemes to be subject to some kind of scrutiny but did not want to overload the Council to such an extend that it spent all its time scrutinising budgets. She suggested a small change in the architecture of the Act, that voluntary schemes be required to have a board and the board should take the responsibility to ensure the ombud could do its work. The report of the board would be a very important part of good governance procedures. If that became clearer in the Act, the monitoring functions would be easier. She suggested that more information be obtained on the Board and its activities.

Dr Davies expressed concern over whether some of the points raised by Ms Hogan should be made by regulations and procedures.

Mr Wessels said that the standards setting requirements were very similar to those in the FAIS Act and Rules and the Pension Funds Act and Rules. These were the critical core factors against which schemes were to be judged. In respect of the responsibilities of the board, the practice had been that it was the ombud that did the report, but the Annual Report was always introduced by the Council Chairperson. It would be very easy, without changing the wording, for the Council to say it required an independent chapter by the independent overseeing board (see 16(1)(a)).

Ms Hogan said she would approve that. She wanted to increase the responsibilities of the board. She suggested retaining Clause 8(b) together with the ability of the Council to initiate investigations. It was important for the board to become a more active role player. She suggested that Treasury and the FSB consider small amendments.

Dr Davies suggested that this would come in Clause 8(3).

Ms Hogan said she was talking about the board of the voluntary scheme as stated in Clause 10(1)(b). If the board was then considered to have more accountability procedures, it would make it easier for the Council to monitor. There was also a need to state the independence of the board as well.
Mr K Moloto (ANC) asked for clarity on the way in which Clause 14 gave the FAIS Ombud additional power.

Mr Wessels said that FAIS would deal with an issue if it could have been dealt with by the voluntary ombud but was not (Clause 14(2)).

Ms Taljaard said that she wanted to add that her concern was in relation to sub clauses 14(2)(c) and (3). Clause 2 actually expanded the ambit of FAIS and effectively expanded its jurisdiction. Ms Hogan suggested keeping Clause 8(1)(b) flagged.

Ms Taljaard asked about the ambiguity she had highlighted. The Chairperson replied that the lawyers had said there was no ambiguity. Ms Taljaard requested that he ask the State Legal Advisors to check the constitutionality. The Chairperson agreed, but said he was not asking for a written legal opinion as the majority of the Committee was not persuaded of the need for it.

Ms Hogan referred to Clause 8(1)(c) and said that the FAIS Act authorised the FAIS ombud to educate clients. Was there now a suggestion that there should be an independent education programme?

Mr Anderson replied that that had not been the intention. Normal education schemes would include information on the Council.

Mr Wessels said that sub-clause (c) really related to the availability of the various complaint resolution forums.

Sub clause 8(1)(f) ff
Sub-clause (2)(b) was amended to include the Ombud for Financial Services Providers. This was agreed.

Ms Hogan referred to Clause 8(2)(c) and asked whether the Council would pay for the audit. Mr Anderson replied in the affirmative.

Ms Hogan suggested adding "at Council's cost" or similar. The Chairperson flagged the sub-clause.

Mr Bhamjee referred to Clause 8(3) and asked whether the Council would be part-time or full-time and how would the registrar relate to the Council and what would the cost implications be if the Council was full time?

Ms Ferreira suggested that additional wording be formulated to clarify this. It would remain a part time function. She suggested "The registrar must assist the Council in implementing its decisions and performing its functions and perform administrative…"

Ms Hogan referred to Clause 8(4) and said it raised the question of a dual reporting function.

Ms Ferreira suggested that this should not be changed here but that the accountability issue be clarified in Clause 2. It was important for budgetary purposes that the Registrar also received reports. Ms Hogan was concerned that this might result in jurisdictional disputes. Mr Anderson thought that an amendment to Clause 2 would clarify this.

Clause 9: Expenditure and service fees
Ms Hogan asked what service fee was envisaged under Clause 9(2).

Mr Anderson replied that in the regulations where the Minister may prescribe things, fees could also be prescribed.

Mr Wessels said that it could happen that an institution might be instructed by the Minister, but otherwise not be levied by the FSB. This would be covered by Clause 9(2).

Ms R Joemat (ANC) asked whether levies would also be ratified by another body or the Minister and then passed on to the consumer. Mr Furstenburg said that only the Minister could prescribe.

Mr Bhamjee asked whether this could not be circumscribed and asked how well the consumer was protected. Could it ever be interpreted at a later stage to force the consumer to pay? Mr Furstenburg replied in the negative.

Mr Wessels said it was necessary to credit the Minister with the necessary conservatism on the fees.

Ms Hogan asked for a definition of service or what was envisaged. The Council had certain statutory obligations - were those a service?

Mr Anderson said that it could not be anything other than a statutory obligation, for example for an auditor.

Ms Hogan asked what other services were intended under (2).

Mr Anderson gave the example of an application fee for recognition.

Ms Hogan said that a schedule was needed as this was too open-ended.

Mr Wessels said that that it would be a Regulation and that there were already pro forma regulations.

Clause 10: Requirements for recognition of a scheme
Ms Fubbs asked whether consideration could be given to adding a sub-clause beefing up the Council to (b).

Mr Bhamjee asked for clarity on a general or particular instance.

Mr Phiyega replied that general referred to schemes from these types of organisation, whereas a particular instance would refer to the one instance where this was a prescription.

Dr Davies suggested in Clause 10(b), a reporting requirement could be placed on the body, for example adding "and submit to the Council a report on these matters".

Ms Hogan said that she wanted the corporate governance role to be made very clear, but was happy to leave it to the FSB. Mr Anderson said that he would flag it.

Ms Hogan said that she understood the FSB and Treasury proposed rewording 2(c). Mr Anderson replied that this was dealt with in Clause 11.

The proposed amendment to Clause 10(1)(h), the replacement of "the scheme and its participants can make the public" for "the public can be made", was accepted.

Ms Fubbs was concerned that in Clause 6, there was no indication that the Council should hold at least one meeting annually. There was very broad discretion and it was a matter of good governance. Mr Furstenburg said there was no objection and suggested a stipulation of at least twice a year.

Dr Davies asked the Treasury to come up with a formulation for a minimum number of meetings and a requirement for meetings as the work required.

The meeting was adjourned.



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