France has a four tier administrative system, namely the State, the Regions (21), the Departments (95), and the Communes (33,000). A share of the responsibility for planning matters rests within each level, particularly in the context of hazards.
Prevention of Coastal and Instability Risk in France
Coastal erosion and sea flooding may cause damage to people and property and be classified as a "natural disaster" in accordance with the provisions of the 13th July 1982 Environmment Act. This interpretation has implications in terms of administrative power and the obligations and liabilities incurred regarding public safety standards and the prevention of risks. Powers are split between the Commune and the Government. The general statutory powers are defined under the "Code des Communes" and the Code of Development and Town Planning (the 3rd January 1986 Coastal Act or "loi littoral", the Public Safety Act, and the "loi Barnier", in particular). Other local government authorities have limited responsibilities in connection with the protection of ecologically-sensitive areas where the Department (or, by substitution or delegation, the Conservatoire de l'Espace Littoral et de Rivages Lacustres) can initiate purchase proceedings
Local Government Powers
The Mayor represents the Commune in relation to two different types of responsibilities, as outlined below:
A general obligation to ensure public safety standards in relation to coastal risks caused by natural phenomena; this obligation implies, on the one hand, an obligation of provision and notification and, on the other, an obligation of protection. However, the Local Authority has no obligation to carry out coastal defence civil engineering, nor to finance its maintenance or repair.
A specific obligation in the case of major danger or impending risk. This obligation is generally met by use of non-structural safety measures, such as closing local roads or ordering the evacuation of a residence built on the edge of a cliff threatened by collapse.
Avoidance of Natural Risks
Arising from its administrative powers in the area of Country and Town planning and Land Occupancy in accordance with the January 7th 1983 Decentralization Act, the Commune has an obligation to take into consideration the potential of any natural risks when planning land occupancy and defining operational town planning zones (Town and Country Planning Concerted Areas and Housing Estates). The obligations resulting from the provisions laid down by the July 22nd 1987 Act, set out in the Code of Town Planning (Articles L.110, L.121.10, L.123.1, L.311.4) are fully enforceable in relation to coastal risks. They complement and reinforce the January 1986 Coastal Act 'Loi Littoral' (Articles L146.1 to L.146.9 of the Code of Town Planning) which may have an indirect preventative effect on some risks.
In addition, the Commune may (in accordance with the Article R.111.2 of the Code of Country and Town planning) refuse to grant planning permission for a development, subject to case by case conditions. The local authority may be held responsible in the case of an obvious error of judgement where it is found that a potential risk has been ignored at the time of the redrafting of the Plan of Ground Occupation (POS) or where a planning permission granted for the purpose of the use of land is found to have been delivered without due regard to the potential risks or of the incidental provisions of the 'Loi Littoral'. However the lawfulness of the aforementioned planning permission would be judged based upon the degree of public general knowledge as to the existence of a potential risk on issue of the planning permission.
Examples of Case Law - Local Government
The State Council judgement of 14th March 1986 (Commune of Val d'lsère v. Mme. Boguy and others) implies on one hand an obligation for preparation and notification and on the other hand an obligation of protection. In the latter the extent of the responsibility to be honoured by the local authority is assessed in accordance with the extent of the damage and the Commune's ability to pay.
Except in some test cases (ie. the State Council decision mentioned above) the local authority has no obligation to carry out coastal defence civil engineering work nor to finance its maintenance or repair. In the test case Dame Louvet v. town of Biarritz, the 6th January 1971 State Council's decision confirmed that the Commune had not been found liable over failing to carry out works to protect a private seaside property against marine damage. This decision is consistent with the principle established in the 16th September 1807 Act relating to the drying out of marshes (Article 33) which confers on coastal landowners the option (not compulsory) of protecting their land against marine damage. Nevertheless in accordance with the 3rd January 1992 Act (Article 31) local authorities are empowered to initiate coastal civil engineering as long as such works are carried out in the public interest or in case of an emergency. If the local authority does carry out works they may be liable if they are not maintained adequately.
The obligation of protection in case of a major danger or an impending risk (Article L.131.7 of the Code des Communes) is generally met by use of non-structural safety measures such as controlling/diverting local traffic or parking, or ordering the evacuation of a dwelling located on the edge of a cliff threatening to collapse (M et Mme Gratti, February 3rd 1984 and February 23rd 1983 State Council Decision). However the Mayor must prescribe such emergency civil engineering measures as may be required by the circumstances. Such works carried out in the public general interest are financed by the Commune even though they may be carried out on private land.
National Government Powers
Lead National Government Departments involved in risk and planning issues include the DRIRE (Regional Director for Industry, Research and the Environment within the Ministry of Industry); the DRIEN (Director for the Environment) within the Ministry of the Environment manages scientific studies for Plans de Prevention des Risques (PPR's); the DDE (Department for Equipment); DRTE (Directorate of Roads, Transport and Equipment) may also be involved in coastal and geotechnical issues.
The Government has powers to influence each level of the risk management process from prevention to repair. In terms of planning and coastal preventive information this should be shared with the Commune; in addition it has specific coastal defence management powers to prevent coastal damage by commenting on proposals before they can be permitted; it finally assesses the probability of any natural disaster (a prior condition on insurance guarantees).
The Government has a general statutory power available for use wherever safety measures have not been implemented by the local authorities or where the risk extends to several Communes in a Department (ie. at a more strategic level). It may also intervene in one single Commune if the Mayor is negligent. The statutory power conferred on the government representative of the Department (in accordance with the Article L.131.13 of the Code des Communes) renders him/her liable and binds his/her responsibility separately or simultaneously with the responsibility of the Commune.
The Government also has a specific statutory power regarding the removal of aggregates and other materials (according to the 19th July 1975 Act relating to artefacts covered by a Preservation Order for the Protection of the Environment and by the 'Loi Littoral'). It must ensure that removal of material is limited in its extent in accordance with the provisions of the 'Loi Littoral'. In this respect they may order the cessation of works when the natural balance of the coast is threatened (there are no equivalent powers at a local government level in Great Britain).
In the field of urban development and land-use planning, the Government has a wide range of measures at its disposal to ensure that the probability of a risk is taken into consideration when drafting land use plans and issuing planning consents (in Great Britain planning policy guidance is provided to support the lesgislation and to assist local authorities in policy implementation).
It has a responsibility to notify the public of risks using 'full knowledge proceedings' in drafting or revising the land use plans, a statutory government process (Article L.122.1 and L.123.3 of the Code of Urbanization); there is no equivalent duty in Great Britain.
The Government has to specify statutory cartographic documents relating to the extent of land use (delineating the boundary of risks in accordance with Article R.111.3 of the Code of Urbanization) and giving rights of access in the public interest (Map of Exposure to Natural Foreseeable Risks as lay down by the July 13th 1982 Act regarding the financial compensation to victims of natural disasters). The definition of those zones of high risk and the provisions laid down in documents, which prevent construction, is fundamental to the drafting of Land Use Plans and must be taken into account in all current Development Plans and all relevant planning permissions in the area covered by the Plan (Article L.126.1 and L421.3 of the Code of Urbanization). By comparison in Great Britain the Environment Agency is disseminating Flood Risk maps which are becoming increasingly available in the public domain.
Examples of Case Law - National Government
These obligations of avoidance of risks were confirmed in the recent test case of the State Council in its decision on the enforcement of Article R.111.3 of the 'Code de L'Urbanisme' ( 9th April 1993, Mentzler). The High Court considered that 'whenever a Commune is drafting a land use planning document, and the Prefect has already designated the land which is exposed to high risks by preventing construction, the 'Conseil Municipal' is assigned to constrain the use of that land to an appropriate level.
The Government may intervene if this power is not exercised. Oversight or unexplained delay in designating high risk zones may also be penalised in court (State Council's decision: 27th July 1979, Blanc and Minister of Equipment). The designation by the representative of the State in a Risk Exposure Plan, however, assumes that the risks are sufficiently likely and prejudicial (administrative tribunal of Montpellier, 3rd December 1992, Guitart v. Pyrennees Orientale Prefect and Communes of Argeles-sur-Mer).
As in the United Kingdom public bodies (ie State and local authorities) have permissive powers (but not a duty) to carry out or finance coastal defence works. Apart from some particular cases where a specific text makes provision it has no duty to ensure the maintenance of defence work even when it has financed the construction. Nevertheless it may be responsible if it has not maintained works adequately, or carried out public works, which have caused or worsened damage (27th April 1966 State Council's decision, Commune of Hossegor and 24th February 1984 decision, town of Hyeres v. Osellane).
When projects are proposed by the local communities, they are subjected to a simple notification proceedings or authorization proceedings according to their importance or their cost (29th March 1993 Statutory Order, in accordance with Article 10 of the Law on Water) except in the case of emergency works to be carried out in the event of grave danger, where only a justification report is required. The authorisation proceedings consist of a preliminary public inquiry and a study, or an impact study according to the size of the area concerned (the limit is 2000m² in accordance with the Statutory Order dated 25th February 1993) as instructed by the Prefect. If a national or Regional State administered property title is involved an inquiry is also necessary particularly if there is any impact on territorial waters. The State has a duty to implement and control the legislative provisions and statutory proceedings provided for within the framework of project inquiry proceedings (the 16th September 1987 Act and 10th July 1973 Act repealed by the 3rd January 1992 Act on Water).
Exappropration and Compensation measures
The Law Barnier (2nd February 1995) authorizes the exappropriation and compensation by the Government of all property threatened by natural risks when the remedial works are too expensive to undertake. Compensation is funded from a State Surcharge of 12% which is added to all property insurance premiums. It should be noted that the Barnier Law can only be implemented for natural risks, not man-made (see Study Area G20 Roquevaire, France). There is no equivalent arrangement in Great Britain and this is seen as a particular strength of the French legal system.
A Risk Prevention Plan (PPR) according to law No. 95-1001, known as Law Barnier, determines the areas where a natural risk is foreseeable. The PPR is intended to allow action to be taken in advance by the proprieter and the local authority.
The PPR addresses natural risks such as flooding, avalanches, forest fires, ground movements, seismic activities and storms. The PPR can prohibit construction and other activities within a particular zone because it will be exposed to a risk or could aggravate it. Some remedial measures may be undertaken within such zones as long as the cost of the work does not exceed 10% of the total value of the asset. The PPR normally forms an appendix to the town planning document for the area concerned (a POS - Plan d'Occupation des Sols).
The POS is, therefore, a strategic planning document which determines the policy for development on a scale of usually 1:5,000. The POS is approved after public consultation and comments from statutory bodies.
Instability Hazard Assessment
The first detailed assessments of instability hazard took place in France in the 1970s under the auspices of the Zermos programme (Zones Exposeés aux risques liés aux mouvements du Sol et du Sous-sol) in some parts of the country (scale 1:25,000). More detailed plans have been prepared in some problematic locations through the POS process (described above). Most Regions of France are not affected by any significant instability, the exceptions being the Alps, the Jura, the Pyrenees, parts of the Massif Central and some coastal locations. The area of most concentrated risk is in the Alps where a number of landslides and dams are continuously monitored.
The system of hazard identification in France has followed a cartographic route with both geological and geomorphological mapping providing the baseline information. These maps provide the basis for the legal and administrative framework described above. The Study Areas described at Roquevaire, Criel-sur-Mer and Séychilienne illustrate practical aspects of implementation of instability management within the French legal and administrative framework.
Discussion - Natural Hazards in France
France has one of the most comprehensive legal systems in Europe in relation to public protection against natural hazards, including the mechanism of compensation for residents affected by natural hazards. A full description of this framework is given in Appendix 1 to this Chapter.
-French Policy Concerning the Coastal Zone and Littoral Wetlands
The French coastal zone is vulnerable to erosion and pollution and the regulations required to preserve its wetlands and habitats must conciliate the requirements of both economic development and environmental preservation
Following the 7th January 1983 Decentralization Act and the 3rd January 1986 Coastal Act (or "loi littoral") the different territorial levels of the French administrative system hold operational mechanisms to deal with specific issues regarding the coastal zone. However, France has to accommodate limitations to the implementation of its coastal zone policy. The 1986 Act includes terms which are not clearly defined. Moreover, there are a large number of planning bodies and and Authorities in charge of the coastal zone (see Figure 1.5).
Problems of Delimitation of the Coastal Zone
In France, coastline evolution has been the subject of limited strategic study. The coastal zone was not acknowledged as a significant entity by the French Statistical Institute "INSEE" (Institut National de la Statistique et des Etudes Economiques) and the "land use plan" only takes shoreline mobility into account in particular instances. As the coastal zone does not really exist statistically, it has been difficult for scientists to assess its development. The present day policy of defining Risk Prevention Plans (PPR) which include the littoral zone has had the aim of correcting these deficiencies.
The "Domaine Public Maritime " (DPM)
The Domaine Public Maritime is a geographical and legal entity, but it is not clearly delimited. The DPM consists of :
the natural public domain: the sea shore, areas left exposed by the tide and areas which were covered by the sea in the past, soils and subsoils of the territorial sea;
the artificial public domain: ports and dependencies, artificial beaches.
The Government owns the DPM and is alone responsible for all decisions regarding its use. Private temporary occupancy is allowed but, in return, the Government is in a position to obtain an income. The competent Authority to manage the DPM is the "Direction des Transports Maritimes, des Ports et du Littoral" (DTMPL). The Prefecture (the Prefet represents the Government at Regional level) regulates the use of the DPM at the local level through the Service Maritime et de la Navigation and the Service des Affaires Maritimes. The management of the DPM can be limited due to restrictions in funding and legislation.
Tourism on the Coastal Zone
Tourism is a key economic activity within the French coastal zone, its turnover represents 12 times the turnover of fishing, 15 times the turnover of port activity and 8 times the turnover of the Merchant Navy. Tourism is both an opportunity and a threat for the coastal zone, an opportunity because it still presents strong prospects for growth and a threat because its development may be detrimental to other activities, if it is not regulated. Percentages of the population, jobs and firms concentrated in coastal towns are similar in france and the U.K.
Figure 1.5 Organogram showing responsibilities for coastal management in France
Protection of property, infrastructure and preservation of the environment
The owners of a house bordering the sea can protect their property against erosion. Coastal defence works must be approved by the governement; public bodies have no obligation to carry out or finance them. there is no government policy clearly aimed at preserving wetlands in the coastal zone
"Le Conservatoire de l'espace littoral et des rivages lacustres"
This public establishment was created by the 10th July 1975 Act and was commissioned to implement a policy of coastal land preservation, with respect to natural sites and ecological balance.
Sensitive natural sites
Sensitive natural sites are acquired, laid out and managed by the Regions (Conseils Régionaux)
Preservation of forestry sites
The "forêts domaniales" which belong to the Government are managed by the "Office National des Forêts"; their clearing or their sale is only authorized in particular instances, following a complex process which leads to an order from the Ministry of Agriculture. In some areas forest preservation is essential to ensure the protection of the environment (for example coastal dunes).
Nature conservation associations manage numerous protected sites.
Regulations for preservation
Preservation of the natural heritage
The 1930 Act has identified two main types of sites: the classified site ("site classé") and the registered site ("site inscrit").
National parks and Regional natural parks
The parks aim at preserving flora, water, atmosphere and the natural environment generally.
French Regulation of the Coastal Zone
Around 15 Ministries are concerned with the coastal zone. The most important are the Ministries of Environment and Territory Management, Equipment, Interior, Agriculture, Finance, Defence, Tourism, Culture, Health, Industry and Research.
France is involved in European inititives towards development of integrated coastal zone management.
3rd January 1986 Coastal Act or "loi littoral"
The main aim of this act is to prevent the creation of new development in the coastal zone. The Coastal Act concerns space defined as the territory of towns which have a littoral façade. It covers both small or medium-sized towns and larger cities. This Act asserts the role of the Government as arbitrator in the case of conflicts. Generally, preservation of the coastal zone has been favoured. There is not a Coastal Planning Authority but a "Comité Interministériel à l'Aménagement du Territoire" which is not specialy devoted to the coastal problems, nor is it a Finance Authority.
The "Directives Territoriales de l'Aménagement"
The DTA (Development Territorial Laws) have a strong legal value. As a statutory order, the DTA are comparable to the "schémas directeurs" (leading plans) and to the land use plans.
The "Schémas Directeurs d'Aménagement et de Gestion de l'Eau"
The SDAGE (Schéma Directeur d'Aménagement et de Gestion des Eaux or Leading Plan for Water Development and Management) govern large basins (catchments) and the SAGE (Schéma d'Aménagement et de Gestion des Eaux or Plan for Water Development and Management) govern one to several sub-basins.
The "Schémas de Mise en Valeur de la Mer"
The SMVM (Plans to Manage the Coastal Zone) manage the preservation, exploitation and planning of a predetermined coastal zone, including the maritime and land areas of coastal towns. This organisation imposes their maritime and land arbitration on the different land use plans of the coastal towns. The setting up of SMVM was slowed down by the length of the elaboration process and the lack of any Government budget credits. Moreover, it was not specified which Authorities would have to set up the SMVM and to follow their development. Only few SMVM were successful, while about ten others have been prepared but have been blocked by local elected members.
Bay contracts aim to preserve the quality of the coastal ecosystem, harmonising activities within the area, managing water resources and setting up a permanent institutional organization for the management of embayments.
Regional natural parks
Regional natural parks provide a good opportunity for the management of the coastal zone. Indeed, among the different processes shared by several French Communes, the Regional natural park process is one of the best suited to rural sites. The parks were first commissioned to preserve a threatened natural heritage.
Limitations of French Public Policy
Concepts of the Coastal Act relating to planning, preservation and management of the coastal zone are sometimes not clearly defined, resulting in increased powers to the administrative judge. Therefore 'case law' becomes very important.
There are many authorities and Government services sharing responsibility within the coastal zone and many approaches/rules, so coherence between them can be difficult, especially as the quantity of relevant legislation increases through time.
Protection of the coastline against erosion is not directly a matter for the Government in France. However, if Government involvement is requested by Local Authorities, then the basis of a coherent strategy is essential. Scientific knowledge of the coastal ecosystem and it's social and economic framework is still increasing. Moreover, protection against erosion must incorporate knowledge of prevaling sediment dynamics, which must be improved.
It would appear that public bodies sometimes have contradictory objectives. For instance, the Ministry of Agriculture subsidises the draining of the wetlands, whilst the Ministry of the Environment does its best to preserve them. So, coordination between the different policies is fundamental.
The Governement strategy suffers from the imprecision of the law. Indeed, the Coastal Act attempts to combine purposes that are difficult to conciliate. The Act can create negotiated mechanisms for decision-making and may benefit from stronger political intentions.
The implementation of a coherent coastal policy in France meets several obstacles. :
the coastal zone does not really exist statistically, so it's difficult for the scientists to assess its development;
powers and liabilities are split between the different governmental authorities;
there is a lack of strategic vision of the coastal area regarding town and country planning, although steps are being taken towards integrated coastal zone management, for example through the European Demonstration Programme for ICZM (1997-99).
Coastal policy suffers from imprecision of the legal terms in the Coastal Act and particularly from the absence of a national coastal strategy. Within this present situation, the sustainability of the coastal zone is uncertain.
Legislation governing coastal change and archaeology in France has been described in the submarine (under the sea) and subaquatic (under fresh water) zones. Important changes currently ongoing in the field of archaeological research are also outlined below. See also Figure 1.6.
The particular position of under-sea archaeology with regard to archaeological law is explained by the fact that maritime cultural heritage was not considered as of relevance to the field of archaeological research until well after the recognition of terrestrial archaeological remains.
Until the creation of the law relating to maritime cultural heritage on 1st December 1989 and the publication of it's decree of application on 5th December 1991, underwater archaeological research was organised around three texts put in place between 1961 and 1965. These texts recognised underwater archaeological wrecks, defined the way in which they would be studied and the rules of ownership, the latter until that time being established by the Colbert Ruling dating from 1681 (Colbert was a minister of King Louis XIV). This ruling states that a wreck found "in the sea or on the shore" and not reclaimed by its owner within a year and a day belongs to the Crown and the Admiral. The finder has, in certain cases, the right to one third of the wreck, if it has been placed in safe keeping and has been declared. These provisions still remain in principle and with the exception of recognition of the archaeological character of the wreck, the texts of 1961 also provided the basis for organisation of a system of excavation.
The law of 1st December 1989 and the decree of 5th December 1991 fundamentally modified these previous provisions, introducing more precise definitions. From this time the notion of underwater archaeological remains has included goods and property from prehistory, archaeology and history on an equal basis. Goods affected by the law are located in the maritime public domain (DPM, see 1.52 'Coastal Zone Management' above). The remains should be left in situ and their exploitation including permission for underwater archaeological research in emergencies
Figure 1.6 Diagram showing the legislative framework for archaeology in France
comes within the competence of the administration of the minister for culture or the head of the Department (as in the law of 27th September 1941). If the owner of the goods is known their permission is also necessary, however the State can take any necessary conservation measures. Any find on the territory of the public domain is the property of the State if the legal owner cannot be identified, or does not claim his rights within 3 years. Offences in relation to this legislation are liable to incur penalties or imprisonment similar to those invoked by the law of 27th September 1941. Chance finds must be declared within two days. For valuable finds, a reward may be obtained. If no declaration has been registered, the discoverer will be subject to a fine. Unauthorised surveying, sounding or removing is punished by a heavier fine. People illegally buying such goods may be sentenced to a fine or a jail sentence.
However, the regime for merchandise and wrecks found on the coast or at sea and considered as foreign requires intervention by Customs. As a result, removal of maritime archaeological goods in contravention of the law of 1st December 1989 may be considered as theft and subject to heavy sanctions. Dealing in maritime cultural goods is treated with the same severity as dealing in drugs and narcotics. Customs officers are vested with the powers of control. When somebody is found to have offended under the Act, the cultural goods are seized, as well as the tools, vehicles, and the fine will be two times the value of the seized goods. In a recent test case two divers from Bordeaux were found extracting six amphorae from the seabed on Corsica. The Customs Officers laid in ambush and waited for the amphoraes to be transferred into the car and the boat fastened behind; everything was seized. Then they called for the Customs Officer in Bordeaux to search the private houses of the two divers.
Following the example of underwater marine archaeology the field of subaqautic archaeology (ie. freshwater) distinguishes itself through a particular regime of ownership of the remains which does not take into account the law of 27th September 1941. In the beginning this field of research was set apart from submarine archaeology, notably with the creation of the national centre for subaquatic research in 1980.
Here the regime of ownership of wrecks is based on the Colbert ruling of 1669. This specifies that wrecks found in "navigable rivers and waterways" are the property of the Crown unless the owner appears within one month. A decree of 1694 extends the field of application of this ruling to consider the whole of the public riverine area.
However, although these provisions define the regime of ownership, the question of exploitation is not addressed. Thus, the rules put in place by the law of 27th September 1941 also apply to subaqatic sites.
In 1996 the subaquatic and submarine research Departments were brought together to become the Department of Subaquatic and Submarine Archaeological Research (DRASSM). This service saw its competence brought to a national level in 1998.
However, it seems that the powers of DRASSM are not identical in both the subaquatic (fresh water) and submarine (sea) domains. In riverbeds and lakes, for example, in the case of dugout canoes found in Sanguinet Lake (Study Area P18), DRASSM should act as a counsellor and technical expert, but the main powers (permission for excavation etc.) are still under the responsibility of the SRA (Regional Service of Archaeology). The authority for Bronze Age wooden posts on the beach at nearby Biscarrosse should not be SRA but DRASSM.
New directions in archaeological research in France
Important changes are currently ongoing in the field of archaeological research, especially for preventive archaeology and underwater survey work. Since 1973 and up to now, preventive archaeology was concurrently operated by different associations, each operation being individually funded. In that system, the most important operator was AFAN (Association for National Archaeological Excavations), this 'association' being in fact a para-public organisation. Other partners have also participated: private associations; local authorities (town and/or county archaeologists, circa 300 people); university departments; research funded by developers; and volunteers.
In March 1999 a new Act was presented by the Culture Ministry. The principle was that archaeology being a science, the State has the exclusive authority on all the archaeological research including preventive archaeology. A new public organisation is being established : the 'Centre National de Recherche Archéologique' (National Centre for Archaeological Research) which will take over the goods, rights and obligations of the AFAN. Funding will be provided by a tax paid by public and private developers (some exceptions are admitted for less important works, under 5,000 square metres surface).
In this new situation the participation of other archaeological researchers in preventive archaeology is arranged through an agreement convention between the group and the new public organisation. This proposition for a new organisation created numerous fears within the different categories of archaeologists and especially among archaeologists employed by AFAN and from volunteer associations.
Acknowledgments to M. Feral from the Port Autonome de Bordeaux, M. Jeanmonod, Jeanneau and Mayenc from the Direction Départementanle de l'Equipement for their valuable advice. The paragraphs concerning archaology have been guided by the Service Régional d'Archéologie de la Région Aquitaine.
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