Nghị định 89/2019/NĐ-CP sửa đổi Nghị định 92/2016/NĐ-CP 30/2013/NĐ-CP

DECREE

AMENDMENTS TO SOME ARTICLES OF THE GOVERNMENT’S DECREE NO. 92/2016/ND-CP DATED JULY 01, 2016 ON CONDITIONAL BUSINESS LINES IN THE CIVIL AVIATION INDUSTRY AND GOVERNMENT’S DECREE NO. 30/2013/ND-CP DATED APRIL 08, 2013 ON AIR TRANSPORT BUSINESS AND GENERAL AVIATION ACTIVITIES

Pursuant to the Law on Government Organization dated June 19, 2015;

Pursuant to the Law on Vietnam Civil Aviation dated June 19, 2006 and the Law on amendments to some Articles of the Law on Vietnam Civil Aviation dated November 21, 2014;

Pursuant to the Law on Investment dated November 26, 2014 and the Law on amendments to Article 6 and Annex 4 on the list of conditional business lines stipulated in the Law on Investment dated November 22, 2016;

At the request of the Minister of Transport;

The Government hereby promulgates a Decree on amendments to some Articles of the Government’s Decree No. 92/2016/ND-CP dated July 01, 2016 on conditional business lines in the civil aviation industry and Government’s Decree No. 30/2013/ND-CP dated April 08, 2013 on air transport business and general aviation activities.

Article 1. Amendments to some Articles of the Government’s Decree No. 92/2016/ND-CP dated July 01, 2016 on conditional business lines in the civil aviation industry

1. Point c Clause 1 of Article 4 is amended as follows:

“c) Enterprises currently involved in conditional business lines in the civil aviation industry which increase or reduce their capital to satisfy requirements concerning capital for expanding or narrowing scope of business, adding or reducing other conditional business lines specified in this Decree may use the financial statement receiving an auditor’s unqualified opinion prepared in the year immediately preceding the date of submission of the application dossier, or the bank guarantee as a capital confirmation or the statement of changes in capital audited at the date of submission of the application dossier.”

2. Article 5 is amended as follows:

“Article 5. Eligibility requirements for air transport business

1. Meet requirements concerning plans to ensure availability of aircraft for operations, organizational machinery, capital, business plans and product development tactics referred to in Article 6, 7, 8, 9 hereof.

2. Regulations laid down in this Chapter shall not apply to training, coaching or mentoring services provided to crew members, and coaches.”

3. Article 6 is amended as follows:

“Article 6. Requirements concerning plans to ensure availability of aircraft for operations

1. A plan to ensure that aircraft is available for operations shall include the following contents:

a) The number, type and service life of aircraft;

b) The form of ownership;

c) Operation and maintenance planning and scheduling, and arrangements for personnel to meet aircraft operation and maintenance requirements;

2. The minimum number of aircraft required for the entire process of providing air transport services is 03; for general aviation business is 01.”

4. Article 7 is amended as follows:

“Article 7. Requirements concerning organizational machinery

1. Maintain an organizational machinery having competence in implementing the system for aircraft safety, security management, operations, maintenance, flight training and ground handling activities.

2. Appoint the person responsible for the system for aircraft safety, security management and operation, and aircraft maintenance and flight training, who must acquire the minimum of 03 years’ continuously working experience related to his/her appointment, and achieve certificates or degrees which are issued or recognized in accordance with regulations of law on civil aviation.

3. With regard to foreign-invested enterprises, the number of foreign members shall not exceed one third of total membership participating in the management board. The management board as the basis for calculation of this ratio shall be composed of:

a) Director General (Director), Deputy Director General (Deputy Director);

b) Chief accountant;

c) Persons taking charge of specific activities, such as safety management system; aircraft operations; aircraft maintenance; aircrew training and persons holding equivalent positions according to the enterprises’ organizational machinery.”

5. Article 8 is amended as follows:

“Article 8. Requirements concerning capital

1. The minimum amount of capital (including equity and loans) required for establishment and maintenance of an airline shall comply with the following regulations:

a) With regard to an airline operating up to 10 aircrafts, the minimum amount of capital shall be VND 300 billion;

b) With regard to an airline operating from 11 to 30 aircrafts, the minimum amount of capital shall be VND 600 billion;

c) With regard to an airline operating more than 30 aircrafts, the minimum amount of capital shall be VND 700 billion.

2. The minimum amount of capital required for establishment and maintenance of a general aviation enterprise shall be VND 100 billion.

3. A foreign-invested airline must conform to the following requirements:

a) Foreign ownership shall not exceed 34% of the charter capital;

b) There is at least one Vietnamese natural or juridical person owning the highest share of charter capital;

c) In cases where a Vietnamese juridical person has foreign investment capital, the foreign share of equity participation shall not exceed 49% of the charter capital of that juridical person.”

6. Article 9 is amended as follows:

“Article 9. Business plans and developmental tactics

Business plans and developmental tactics of an airline shall be composed of the following:

1. Anticipation of market demands and market growth trends.

2. Evaluation of actual status and level of competitiveness of services launched in the market.

3. Tactics for development of air transport products, aircraft fleet, and business development plans for 05 first years from the date of commencement of operations.”

7. Article 10 is amended as follows:

“Article 10. Procedures for issuance of an air transport business license or general aviation business license

1. The applicant for an air transport business license or general aviation business license shall send 01 set of application to the Civil Aviation Authority of Vietnam, whether directly or by post or another appropriate manner and assume responsibility for accuracy and truthfulness of information included in such application.

2. The application shall include:

a) An application form, which is made using the Form No. 01 in the Appendix hereof;

b) A report (enclosed with documentary evidences) on fulfillment of eligibility requirements for air transport business, which includes: a plan concerning number of aircraft to be operated; plan concerning the organizational machinery serving aircraft operation, air transport business, business plan and product development tactic; brand to be used; organizational structure of the enterprise;

c) An original of the capital confirmation;

d) Copies from the master register or copies presented together with their originals for comparison or certified true copies (if the application is submitted in person); certified true copies (if the application is submitted by post) of the following documents: appointment decision and employment contract, copy of the decree or professional certificate of the responsible person referred to in Article 7 hereof;

dd) The agreement in principle or agreement on aircraft purchase, lease-purchase or charter;

e) The enterprise’s charter.

g) List of members and shareholders at the date of submission of the application; the list shall contain the following information: full name; date of birth; nationality; registered permanent residence; current address; holding or number of shares; representatives of the stakes if the members and shareholders are organizations; agreement on capital contribution by members and shareholders (a copy confirmed by the enterprise or copy presented together with its original for comparison).

3. If the application is not satisfactory, within 03 working days from the receipt of that application, the Civil Aviation Authority of Vietnam shall send a written response to the applicant and provide guidance on improvement of the application as prescribed.

4. Within 20 days from the receipt of the sufficient application, the Civil Aviation Authority of Vietnam shall send an evaluation report to the Ministry of Transport.

5. Within 15 days from the receipt of the evaluation report, the Ministry of Transport shall consider and submit that report to the Prime Minister. In case of rejection of such evaluation report, a written response, expressing reasons therefor should be sent to the Civil Aviation Authority of Vietnam.

6. Within 10 days from the receipt of the statement on evaluation results from the Ministry of Transport, the Prime Minister shall consider permitting the Ministry of Transport to grant the air transport business license or general aviation business license. In case of refusal to grant permission, the Prime Minister shall notify the Ministry of Transport and clearly state the reasons therefor.

7. Within 05 working days from the receipt of the Prime Minister’s written opinion, the Ministry of Transport shall grant the air transport business license or general aviation business license by using the Form No. 02 in the Appendix hereof or notify the Prime Minister’s opinion on refusal to grant the license.”

8. Article 11 is amended as follows:

“Article 11. Procedures for re-issuance of an air transport business license or general aviation business license

1. The air transport business license or general aviation business license is re-issued where it is lost, torn, damaged, has its contents changed or is eliminated or cancelled due to failure to satisfy the requirements mentioned in Points a, c, d and dd Clause 1 Article 12 of this Decree.

2. The airline shall submit 01 set of application to the Civil Aviation Authority of Vietnam, whether directly or by post or another appropriate manner and assume responsibility for accuracy and truthfulness of information included in such application.

3. Procedures for re-issuance of a license due to any change in contents of that license:

a) The application includes: an application form, which is made using the Form No. 01 in the Appendix hereof; documents (if any) relating to change in contents of the license;

b) Within 15 days from the receipt of the sufficient application, the Civil Aviation Authority of Vietnam shall send an evaluation report to the Ministry of Transport;

c) Within 03 working days from the receipt of the evaluation report, the Ministry of Transport shall re-issue a license using the Form No. 02 in the Appendix hereof. In case of rejection of such evaluation report, a written response, expressing reasons therefor should be sent to the Civil Aviation Authority of Vietnam.

4. Procedures for re-issuance of a license due to loss, wear and tear or damage:

a) The application includes: an application form, which is made using the Form No. 01 in the Appendix hereof;

b) Within 03 working days from the receipt of the sufficient application, the Civil Aviation Authority of Vietnam shall submit a report to the Ministry of Transport;

c) Within 02 working days from the receipt of the report, the Ministry of Transport shall consider re-issuing a license using the Form No. 02 in the Appendix hereof. In case of rejection of such report, a written response, expressing reasons therefor should be sent to the Civil Aviation Authority of Vietnam.

5. Procedures for re-issuance of a license due to invalidation or cancellation:

a) The application includes the documents mentioned in Points a, b, c, d, dd and g Clause 2 Article 10 of this Decree;

b) If the application is not satisfactory, within 03 working days from the receipt of that application, the Civil Aviation Authority of Vietnam shall send a written response to the applicant and provide guidance on improvement of the application as prescribed;

c) Within 15 days from the receipt of the sufficient application, the Civil Aviation Authority of Vietnam shall send an evaluation report to the Ministry of Transport;

d) Within 03 working days from the receipt of the evaluation report, the Ministry of Transport shall re-issue a license using the Form No. 02 in the Appendix hereof. In case of rejection of such report, a written response, expressing reasons therefor should be sent to the Civil Aviation Authority of Vietnam.

6. The re-issued license must include regulations on elimination of any license which has been lost, torn, damaged or changed in terms of its contents.”

9. Article 12 is amended as follows:

“Article 12. Elimination of an air transport business license or general aviation business license

1. An air transport business license or general aviation business license shall be invalidated and eliminated in the following cases:

a) Fail to meet capital adequacy requirements within for a consecutive period of 03 years;

b) Intentionally falsify information included in the application;

c) Cease air transport service operations for a consecutive period of 36 months;

d) Fail to apply for an air operator’s certificate within a permitted period of 36 months from the date of issuance of a license;

dd) Have an air operator’s certificate which is revoked or eliminated for a period of more than 36 months, and is not re-issued;

e) Misuse contents stated in a license;

g) Deliberately breach regulations of law on security and national defense;

h) Commit serious violations against laws on aviation security, safety, organizational machinery for administration and operation of air transport and general aviation services;

i) Terminate operations according to laws or upon the request of an airline;

k) No longer meet licensing requirements in accordance with laws.

2. In case of a license subject to invalidation or elimination, the Ministry of Transport shall grant a decision on elimination of that license and an airline must immediately put an end to its air transport operations.”

10. Article 12a is added as follows:

“Article 12a. Changes to be reported by airlines

Every airline shall submit a report to the Civil Aviation Authority of Vietnam within 30 days from date on which the following tasks are performed:

1. Amendment to its Charter or Conditions of Carriage;

2. Change of contents of the enterprise registration certificate;

3. Change of the organizational machinery prescribed in Article 7 hereof;

4. Change of a member of the management board;

5. Change of a shareholder holding at least 5% of the charter capital.”

11. Article 12b is added as follows:

“Article 12b. Management of air transport business

1. An airline is entitled to provide air transport services after complying with regulations on air operators promulgated by the Minister of Transport.

2. The airline must ensure that number of chartered aircraft with aircrews shall not:

a) account for more than 30% of an aircraft fleet;

b) exceed 10.”

12. Article 12c is added as follows:

“Article 12. Measures to manage air transport

1. Every airline is granted the freedoms of the air shall adhere to the confirmed flight schedules, take off time and landing time.

2. The Civil Aviation Authority of Vietnam shall implement measures to ensure the adherence to flight schedules, take off time and landing time by airlines.”

13. Article 12d is added as follows:

“Article 12d. Management of aircraft imported into Vietnam

1. The service life of used aircraft imported into Vietnam shall be provided for as follows:

a) With regard to aircraft used for carriage of passengers, the service life must be a period of less than 10 years ranging from the date of manufacture to the date of importation under terms and conditions of a purchase or lease-purchase agreement; a period of less than 20 years ranging from the date of manufacture to the date of termination of an aircraft charter agreement. As for used helicopters, the service life must be a period of less than 25 years ranging from the date of manufacture to the date of termination of a charter agreement;

b) With regard to aircraft used for transportation of goods, letter post, postal parcels, and for general aviation business, the service life must be a period of less than 15 years ranging from the date of manufacture to the date of importation under terms and conditions of a purchase or lease-purchase agreement; a period of less than 25 years ranging from the date of manufacture to the date of termination of a charter agreement;

c) With regard to aircraft other than that specified in Points a and b of this Clause, the service life must be a period of less than 20 years ranging from the date of manufacture to the date of importation under terms and conditions of a purchase or lease-purchase agreement; a period of less than 30 years ranging from the date of manufacture to the date of termination of an aircraft charter agreement.

2. Aircraft imported into Vietnam must have a type certificate granted by the Federal Aviation Administration of the United States (FAA) or European Aviation Safety Agency or Aviation Authority of Vietnam.”

14. Article 14 is amended as follows:

“Article 14. Eligibility requirements for issuance of an airport business license

1. Have documents that explain fulfillment of the requirements for aviation safety and security specified in Clause 2 Article 63 of the Law on Vietnam Civil Aviation and Annex 14 of the Convention on International Civil Aviation.

2. Fulfill requirements concerning capital as follows:

a) The minimum amount of capital required for establishment and maintenance of an airport enterprise shall be VND 100 billion.

b) Foreign ownership shall not exceed 30% of the charter capital.”

15. Article 16 is amended as follows:

“Article 16. Requirements for issuing a license to provide airport/airdrome services

1. Every airport/aerodrome service provider shall satisfy the requirements specified in Points b and d Clause 2 Article 65 of the Law on Vietnam Civil Aviation are complied with and undergo an evaluation, which is carried out by the Civil Aviation Authority of Vietnam according to the corresponding service sub-sector specified in Clause 1 Article 15 hereof.

2. The minimum amount of capital required for establishment and maintenance of an airport/aerodrome service provider shall comply with the following regulations:

a) Passenger terminal operation services: VND 30 billion;

b) Air cargo terminal or warehouse operation services: VND 30 billion;

c) Aviation fuel supply services: VND 30 billion.

3. As for providers of passenger terminal, air cargo terminal operation, fuel supply, ground engineering and commercial, and airfield operation services, foreign equity participation shall not exceed 30% of the charter capital of these providers.”

16. Article 18 is amended as follows:

“Article 18. Procedures for issuing a license to provide airport/airdrome services

1. Individuals or organizations applying for a license to provide airport/airdrome services shall send 01 set of application to the Civil Aviation Authority of Vietnam, whether directly, by post or another appropriate manner and assume responsibility for accuracy and truthfulness of information included in such application. The application includes:

a) An application form, which is made using the Form No. 03 in the Appendix hereof;

b) An original of the capital confirmation;

b) Documents that explain fulfillment of the requirements for aviation safety and security specified in Clause 1 Article 16 hereof.

2. Within 12 days from the receipt of the sufficient application, the Civil Aviation Authority of Vietnam shall re-issue a license to provide airport/airdrome services using the Form No. 04 in the Appendix hereof. In case of rejection of the application, the Civil Aviation Authority of Vietnam shall send a written response, expressing reasons therefor.

If the application is not satisfactory, within 03 working days from the receipt of that application, the Civil Aviation Authority of Vietnam shall send a written response to the applicant and provide guidance on improvement of the application as prescribed.

3. The Civil Aviation Authority of Vietnam shall report the issuance of licenses to the airport authority to conduct any inspection or control.”

17. Article 21 is amended as follows:

“Article 21. Conformity requirements for supply of services relating to maintenance of aircraft, propellers and equipment within Vietnam

1. A provider supplying services relating to maintenance of aircraft, propellers and equipment within Vietnam must be granted the approved maintenance organization (AMO) certificate by the Civil Aviation Authority of Vietnam.

2. Conformity requirements for issuance of the AMO certificate: AMO procedures manual promulgated by the Minister of Transport shall be available.

3. This Article shall be only applied to maintenance of aircraft that has the registration of Vietnamese nationality, propeller and equipment within Vietnam.”

18. Article 22 is amended as follows:

“Article 22. Eligibility requirements for providers of services related to design, manufacture or testing of aircraft, engines, propellers and equipment within Vietnam

1. Ensure that providers of services related to design, manufacture or testing of aircraft, engines, propellers and equipment have been granted the aircraft, engine, propeller and equipment design, manufacture or testing organization approval certificate by the Civil Aviation Authority of Vietnam.

2. Eligibility requirements for issuance of the aircraft, engine, propeller and equipment design, manufacture or testing organization approval certificate within Vietnam as prescribed in Clause 1 of this Article:

a) Have aircraft, engine, propeller and equipment approved design, manufacture or testing organization procedures manual, which proves the provider’s capability;

b) Have a manufacture, design, maintenance or testing procedure.

3. This Article shall be only applied to the case in which design, manufacture or testing of aircraft, engines, propellers and equipment within Vietnam comply with the type certificate granted by the Civil Aviation Authority of Vietnam.”

19. Article 23 is amended as follows:

“Article 23. Eligibility requirements for provision of air navigation services

1. Ensure that providers of air navigation services, technical systems and equipment have been licensed for operations by the Civil Aviation Authority of Vietnam provided that they conform to regulatory requirements concerning technical systems, equipment and operational processes in uniformity with civil aviation technical regulations and standards.

2. Fulfill requirements concerning capital as follows:

a) Providers of air traffic and aeronautical information, search and rescue services must be wholly state-owned ones;

b) A provider of communication, navigation and surveillance, and aviation meteorology services must have state-owned equity participation which is not less than 65% of its charter capital, and foreign equity participation which does not exceed 30% of its charter capital.”

20. Article 25 is amended as follows:

“Article 25. Conformity requirements to be satisfied by aviation staff training, coaching and mentoring service providers

An aviation staff training, coaching and mentoring service provider shall satisfy the following conformity requirements:

1. Have documents that explain facilities conform to aviation technical regulations and standards promulgated by the Minister of Transport.

2. Have documents that explain training courses, training or coaching materials are designed in accordance with regulations of the the Minister of Transport.

3. Ensure that it recruits the adequate number of theory and practice-based instructors or coaches so that at least 01 instructor or coach will be in charge of an aviation subject.”

21. Article 26 is amended as follows:

“Article 26. Instructors or coaches of aviation staff training, coaching and mentoring service providers

An aviation instructor or coach shall satisfy one of the following requirements:

1. Obtain professional certificates as prescribed in legislative documents on aviation or acquire 5 years’ professional experience in their assigned subjects.

2. Obtain a certificate of pedagogical training in accordance with laws on education or vocational education.”

22. Article 27 is amended as follows:

“Article 27. Procedures for issuance of a certificate of eligibility for provision of aviation staff training, coaching and mentoring services

1. The aviation staff training, coaching and mentoring service provider shall submit 01 set of application to the Civil Aviation Authority of Vietnam, whether directly, by post or another appropriate manner. The application includes:

a) An application form, which is made using the Form No. 05 in the Appendix hereof;

b) Documents that explain fulfillment of the requirements specified in Articles 25 and 26 hereof.

2. Explanatory documents include:

a) List of instructors or coaches;

b) Report on facilities: classrooms, equipment, devices, practice learning facilities developed to ensure compliance with training contents;

c) Report on theory or practice-based training or coaching programs, materials and resources used for specific subjects;

d) Report on the organizational system, machinery, management staff and administrative documents or records used for administering aviation staff training, coaching and mentoring operations.

3. Within 25 days from the receipt of the required application, the Civil Aviation Authority of Vietnam shall verify the application and carry out a site inspection of the provider; request the applicant to further explain, improve or correct submitted documents; issue the certificate of eligibility for provision of aviation staff training, coaching and mentoring services to the applicant by completing the Form No. 07 stipulated in the Appendix hereto. In case of refusal, reasons therefor should be clearly stated.”

23. Clause 4 of Article 28 is amended as follows:

“4. With respect to any improvement or modification of a certificate, within 15 days from the receipt of the required application, the Civil Aviation Authority of Vietnam shall verify the application and carry out a site inspection of the provider; request the applicant to further explain, improve or correct submitted documents; re-issue the certificate of eligibility for provision of aviation staff training, coaching and mentoring services to the applicant, or send a written notification of refusal in which reasons therefor must be expressed.”

24. The Forms No. 05, 06 and 07 enclosed with the Decree No. 92/2016/ND-CP are amended and provided in the Appendix enclosed herewith.

Article 2. Amendments to some Articles of the Government’s Decree No. 30/2013/ND-CP dated April 08, 2013 on air transport business and general aviation

1. Article 22 is amended as follows:

“Article 22. Application for issuance of a certificate of registration of non-commercial general aviation activities

1. The applicant shall submit 01 set of application to the Civil Aviation Authority of Vietnam, whether directly or by post or another appropriate manner.

2. The application includes:

a) An application form, which is made using the Form No. 06 or the Form No. 10 (in case of applying for re-issuance of the certificate);

b) Copies from the master register or copies presented together with their originals for comparison or certified true copies (if the application is submitted in person); certified true copies (if the application is submitted by post) of the following documents: establishment license or operation license or enterprise registration certificate (if the applicant is an organization); ID card, Citizen ID card or passport (if the applicant is an individual);

c) Copies from the master register or copies presented together with their originals for comparison or certified true copies (if the application is submitted in person); certified true copies (if the application is submitted by post) of the following documents: Vietnam Permanent Residence Card (for the foreign citizen permanently residing in Vietnam); license for establishment of representative office or branch in Vietnam (for the representative office or branch of a foreign organization);

d) Copies from the master register or copies presented together with their originals for comparison or certified true copies (if the application is submitted in person); certified true copies (if the application is submitted by post) of the following documents: Certificate of registration of Vietnamese nationality of aircraft and Certificate of Airworthiness;

dd) An original of the aircraft operation and maintenance plan;

e) Copies from the master register or copies presented together with their originals for comparison or certified true copies (if the application is submitted in person); certified true copies (if the application is submitted by post) of the following documents: Appropriate licenses and certificates of flight crew members;

g) A copy from the master register or copy presented together with its original for comparison or certified true copy (if the application is submitted in person); certified true copy (if the application is submitted by post) of the operation license of the aircraft maintenance facility;

h) A copy from the master register or copy presented together with its original for comparison or certified true copy (if the application is submitted in person); certified true copy (if the application is submitted by post) of the aircraft maintenance service lease contract in the case of leasing of aircraft maintenance service.”

2. Clause 1 of Article 23 is amended as follows:

“1. Within 25 working days from the receipt of the sufficient application prescribed in Article 22 hereof, the Civil Aviation Authority of Vietnam shall appraise it and send an enquiry about the applicant for registration of general aviation activities, aircraft type or airfield to the Department of Operations (the Ministry of National Defense) or send a notification of refusal to issue the certificate to the applicant and clearly state reasons therefor.”

3. Clause 6 of Article 26 is amended as follows:

“6. The use of brand specified in Point b Clause 3 and Clause 4 of this Article shall be registered with the Civil Aviation Authority of Vietnam. The airline shall submit 01 set of application to the Civil Aviation Authority of Vietnam, whether directly, by post or another appropriate manner. An application for registration of use of a brand includes:

a) An original of the application form, which is made using the Form No. 08 in the Appendix hereof;

b) Copies from the master register or copies presented together with their originals for comparison or certified true copies (if the application is submitted in person); certified true copies (if the application is submitted by post) of the documents proving the corresponding regulations specified in Point b Clause 3 and Clause 4 of this Article;

c) A copy from the master register or copy presented together with its original for comparison or certified true copy (if the application is submitted in person); certified true copy (if the application is submitted by post) of the written permission for use of the brand granted by the brand owner.”

Article 3. Effect

1. This Decree comes into force from January 01, 2020.

2. Articles 13 and 17 of the Government’s Decree No. 92/2016/ND-CP dated July 01, 2016 are annulled.

3. Article 20 of the Government’s Decree No. 30/2013/ND-CP dated April 08, 2013 is annulled.

Article 4. Responsibility for implementation

1. The Ministry of Transport shall organize the implementation of this Decree.

2. Ministers, heads of ministerial agencies, heads of Governmental agencies, People’s Committees of provinces and central-affiliated cities are responsible for the implementation of this Decree./.

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