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OSHA Inspections, Citations, and Penalties

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1 OSHA Inspections, Citations, and Penalties
When an OSHA inspector—also called a compliance safety and health officer or inspector—walks through your front door, you may experience any number of feelings such as fear, nervousness, or annoyance. Your level of feelings will probably depend on the quality of your safety program. If your safety program requires a lot of improvement, your fear and anxiety will probably be heightened. However, if you’re proud of your safety program, you may see the inspection as an opportunity to show off all of your hard work and commitment to safety. Today, we’re going to talk about what to expect, and how to prepare your facility and key people for the day when an inspector shows up at your door.

2 Session Objectives You will be able to:
Identify how investigations are triggered Develop an inspection action plan Understand the steps in the inspection process Assume an effective role in the inspection Successfully deal with the outcome of an inspection The main objective of this session is to prepare you to manage an OSHA inspection effectively to achieve the best possible result. By the time this session is over, you should be able to: Identify how investigations are triggered; Develop an inspection action plan; Understand the steps in the inspection process; Assume an effective role in the inspection; and Successfully deal with the outcome of an inspection.

3 What Triggers Inspections?
Imminent danger Fatality or catastrophe Employee complaint Referral or follow-up OSHA inspections can be triggered by several different circumstances. A report of imminent danger to employee safety and health at your facility will prompt an immediate inspection. Inspectors will drop their current inspections in order to prevent a fatality or serious injury as a result of an imminent danger report. A fatality at your facility or other catastrophe that sends a number of employees to the hospital will also trigger an immediate investigation. An employee complaint of hazardous conditions at your facility will usually result in an inspection as well. But not all complaints lead to an immediate inspection. Depending on the source of the complaint and the perceived threat to employee safety and health, the inspector may choose to contact your organization in writing. If your response is satisfactory, an inspection may not be necessary. Unscheduled inspections might also be prompted by a referral from another government agency or as a follow-up to a previous inspection.

4 Targeted Inspections OSHA: Has limited resources
Selects industries based on SIC codes Profiles “high hazard” facilities Conducts data collection initiatives In addition to unscheduled inspections, OSHA also conducts targeted inspections that are conducted according to the agency’s priority schedule. The reason for targeted inspections is simple. OSHA has limited resources and only so many inspectors and, therefore, can’t inspect every workplace that’s required to comply with OSHA regulations. As a result, OSHA has selected certain industries on the basis of Standard Industrial Classification, or SIC, codes. These industries have high time-loss injury incident rates or have a history of a large number of OSHA citations from past inspections. When it comes to individual workplaces, OSHA’s strategy is to use site-specific data to profile and then target facilities where most of the injuries and illness are occurring. OSHA would rather focus its enforcement actions on facilities that are on this “high hazard” list than on organizations that appear to have good safety records. OSHA has also conducted data collection initiatives in order to develop these hazard profiles for specific workplace. Data used might include OSHA recordable accidents, history of accidents, cost of workers’ compensation, employee complaints, and so on.

5 OSHA Inspection Action Plan
Procedures for handling the inspection process Responsibilities of key personnel Equipment needed for the inspection Now that you know why OSHA might select your facility for an inspection, we need to talk about the steps you should be taking to prepare your facility and personnel for the possibility of an inspection. An inspection action plan will help your organization successfully manage an inspection. Your plan should focus on three key areas to help ensure that the inspection goes smoothly. First your plan should anticipate how the organization will manage the inspection process. For example, who will be called when the inspector arrives? Where is the safety documentation the inspector might ask for? Which route will you use to guide the inspector through the facility? Where will you hold the opening and closing conferences? Your plan should also determine responsibilities of key individuals in the facility. Who will escort the inspector? Who will be responsible for taking the lead in discussions with the inspector? Who will take notes and document the issues on which the inspector focuses? The plan must also include any equipment necessary for an inspection. In the next slide we’ll talk about an inspection “tool box” that you should assemble in anticipation of an inspector’s arrival.

6 Inspection Tool Box Cameras Flashlights Clipboard, paper, pens PPE
Your inspection tool box should contain all those items that you may need during the inspection. Having them all together in one place will save you scrambling around to gather them at the last minute. At a minimum, your tool box should include: A regular camera and a video camera so that you can take pictures of what the inspector takes pictures of or focuses attention on; Clipboard, notepads, and plenty of pens; Flashlights to help look in hard-to-see areas; Extra PPE for the inspector and your people; and A current map of your facility to help orient the inspector. Think about any other items that might be helpful to have on hand during an inspection, such as a cell phone and the extension numbers of personnel you might have to call on for information or explanations, keys for documents kept in locked file cabinets, and the location of monitoring equipment. Cameras Clipboard, paper, pens Flashlights PPE Facility map

7 Inspector Arrives Understand and implement your OSHA inspection plan
Alert key personnel Prepare conference room Check inspector credentials Now you’re ready for the arrival of the inspector. The first person to greet an OSHA inspector is usually a receptionist. The receptionist should understand the organization’s inspection action plan so that he or she knows which personnel to contact, where the opening conference will be held, and any other duties the receptionist may be required to perform. The inspector will want to meet with the owner, general manager, or the person in charge of operations at your facility. Other key personnel the receptionist should contact might include your safety director, human resources manager, production manager, engineering manager, and safety consultant. Before the receptionist leads the inspector to the conference room, make sure the room is sanitized. Erase any notes on black or white boards, remove papers from previous meetings, and make sure there is no additional information in the room. When you meet the inspector check his or her credentials. You may also verify the credentials by calling the nearest federal or state OSHA office. The phone number should be listed in your OSHA inspection action plan, by the way, and be available in your inspection tool box.

8 Level of Cooperation Cooperating Exercising your right to a warrant
Being completely uncooperative Setting an adversarial tone Cooperative Uncooperative Your OSHA inspection action plan should also address the level of cooperation you intend to extend to the inspector. You may decide on a policy of giving OSHA inspectors full cooperation. This is usually the best approach. Short of that, you could ask for a warrant. While you are within your rights to do so, this is generally not recommended unless you think that by delaying the inspection you’ll have time to improve the safety status of your facility. But remember that an inspector can usually get a warrant very quickly. Of course, you could be completely uncooperative and refuse to give even basic safety information to the inspector. But this is definitely not recommended, since it would probably prompt the issuance of an administrative subpoena requiring you to turn over all safety-related documentation ASAP. Just be aware that if you take any approach other than full cooperation you establish an adversarial tone and you prompt the inspector to wonder what you’re hiding. What started out as a single area inspection could turn into a full-blown wall-to-wall inspection. Think carefully before jeopardizing a good working relationship with an inspector. Right to Warrant Adversarial

9 Opening Conference Employee representative
Explanation of purpose of visit Explanation of inspection process Trade secret protection Use of a camera or testing instruments No retaliation OK, now the inspector is in the door, and it’s time for the opening conference. In addition to management personnel at this meeting, the inspector might also want an employee, such as a union rep or a member of your safety committee, to be present and later accompany you on the inspection tour. The inspector will begin by explain the purpose of the visit. If the inspection has been prompted by an employee complaint, the inspector will give you a copy of the complaint, minus the employee’s name. The inspector will also explain the inspection process step by step. For example, first a walkaround, then inspection of written documents, followed by employee interviews and some monitoring. The inspector will discuss trade secret protection as well and explain that photos or copies of documents containing trade secrets will not be made. The inspector will explain that he or she will document parts of the inspection with a camera, video camera, or industrial hygiene testing equipment. Dimensions, speeds, serial numbers, frequency of exposure, duration of exposure, and so on may also be documented. Finally, the inspector will remind you not to take any adverse action against any employee who speaks to the inspector, complains to OSHA, or speaks out about safety issues in the facility.

10 Opening Conference Tips
Take detailed notes Ask questions Answer the inspector’s questions directly Don’t volunteer unnecessary information Always be truthful Here are some opening conference tips to keep in mind. First of all, take detailed notes. Some items to include in your notes might be names of personnel at the meeting, time and date, what prompted the inspection, what the inspector plans to do, what equipment the inspector has, and so on. Ask plenty of questions as well to ensure that you understand the inspection process and what the inspector expects from you. The inspector will also ask questions, not only at the opening conference, but all through the inspection. Answer questions directly. But don’t be afraid to say you don’t know the answer and will find out. Don’t volunteer unnecessary information. Just answer question; don’t get involved in other issues the inspector hasn’t talked about. You might accidentally say something that prompts the inspector to widen the inspection—and that’s the last thing you want to do! Another important tip—always be truthful when dealing with an inspector. Lying to the inspector can lead to a $10,000 fine and a year in jail. Think about your role in the opening conference and what your responsibilities might be.

11 Documentation Requested
Injury and illness logs Written safety programs Training records Documentation related to specific safety programs Control of the flow of information Frequently, after the opening conference, the inspector will want to look at documentation that relates to your safety and health programs. For example: The inspector will request your OSHA 300 injury and illness log to make sure you have completed it correctly and to check the accident history at your facility. The inspector will also want to look at required written safety programs, such as hazard communication, emergency plan, and so on, to make sure that they meet the requirements of OSHA regulations. The inspector will also look to see that the programs are being followed during the walkaround. The inspector might want to see your safety training records as well to make sure your employees are getting required training and that it meets OSHA standards. In addition, the inspector might want to look at specific documents related to safety programs—for example, lockout/tagout assessments, respirator fit tests, and PPE assessments. Be sure to control the flow of documents to prevent providing the inspector with unnecessary information and documents that weren’t specifically asked for. You might consider asking the inspector for a written list of documents to make sure there is no confusion. That way you’ll also have a record of the documents you show the inspector.

12 Your Safety and Health Program
Multifaceted Employee participation and acceptance Management commitment and leadership Evidence of a safety culture and “good-faith” efforts Expanded inspection not warranted In addition to specific documents, the inspector will be assessing your overall safety and health program during the inspection. The inspector will want to ensure that your safety program is multifacited and covers all phases of OSHA standards. The inspector will also be looking for evidence of employee participation in and acceptance of safety programs. This could be demonstrated by such things as safety committees, employee teams responsible for developing safety procedures, safety suggestion systems, and other similar employee participation activities. The inspector will additionally be assessing management commitment and leadership in relation to facility safety and health. He or she will be looking to see if you walk the walk as well as talk the talk. The inspector will also be alert to evidence of a positive safety culture as well as good-faith efforts on the part of management to correct safety hazards and provide a safe work environment. If the inspector finds most of these elements in your safety and health program, he or she may feel that your organization is dedicated to employee safety and that an expanded inspection is not warranted. That means the inspection will be limited to its original purpose and focus only on those items. And that’s good news for you.

13 Inspection Preliminaries: True or False?
If you’re in a “high hazard” industry, you’re more likely to be inspected by OSHA Only management personnel are present at the opening conference You could be fined or jailed for lying to an OSHA inspector Inspectors must have subpoenas to look at your safety and health documentation OK, let’s take a few minutes now to review what we’ve discussed about inspection preliminaries. On the screen you’ll see four statements. You decide if they are true or false. If you’re in a “high hazard” industry, you’re more likely to be inspected by OSHA. True or false? The correct answer is true. You’re also more likely to be inspected if you have a lot of lost workdays due to work-related injuries or have a history of previous OSHA citations. Only management personnel are present at the opening conference. True or false? The correct answer is false. The inspector may request that an employee representative also be present. You could be fined or jailed for lying to an OSHA inspector. True or false? The correct answer is true. People who lie to OSHA inspectors can be fined up to $10,000 and face a year in jail. Inspectors must have subpoenas to look at your safety and health documentation. True or false. The correct answer is false. They can look at any relevant documentation they ask for.

14 Inspection Preliminaries
Do you understand: What prompts inspections? How to prepare for an inspection? Preliminary inspection procedures? Now it’s time to ask yourself if you understand the information presented in the previous slides about inspection preliminaries. Do you understand: What prompts inspections and how facilities are targeted for inspection? How to prepare for an inspection, including developing an inspection action plan and putting together an inspection tool box? Preliminary inspection procedures, including the opening conference and documentation that might be requested? You need to know about all of this information in order to be properly prepared to deal with the arrival of an OSHA inspector at your door. Now let’s continue to the next slide and discuss the first step in the facility inspection—the walkaround.

15 Walkaround Wear required PPE Follow process flow
Start at area of complaint Inspector may note apparent violations in plain view Once the inspector has conducted the opening conference and reviewed some safety documentation, he or she will want to walk through your facility. Before going into the facility for the walkaround, make sure the inspector and all escorts are wearing the required PPE for the areas you’ll be visiting. For most inspections, the walkaround will go most smoothly if you follow the process or production flow. This route should have been described in your OSHA inspection action plan and maps should be in your inspection tool box. Give a map to the inspector. Alternatively, if the inspection was triggered by an employee complaint, the inspector might want to start at the area of complaint. If this is the case, take the most direct route to that area. The inspector may note apparent violations that are in plain view along the walkaround route even if it wasn’t the original intention to inspect the area. For that reason, avoid unnecessary travel around the facility. Think about how you would facilitate the walkaround part of the inspection to make things go smoothly and minimize risks.

16 Side-by-Side Documentation
Record what OSHA records Take pictures Sample what OSHA samples Make a copy of documents OSHA wants to take Have your safety consultant there, if you use one During the walkaround, it’s important to keep a record of what the inspector has noted and recorded. That way, you’ll be prepared to discuss, or even counter, any issues or violations that the inspector raises in the closing conference. So when the inspector takes a picture, you should take a picture of the same object from the same perspective. If the inspector is using a video camera, you should also be videotaping whatever the inspector is recording. And remember, just because a video camera isn’t up to the inspector’s eye doesn’t mean he or she isn’t recording. If the inspector takes samples or measurements, you should duplicate those samples or measurements. For example, if the inspector is recording readings of a sound level meter, you should have a sound level meter available to double-check and record the readings at the same time. Or if the inspector is measuring the distance between a potential hazard and employees working nearby, you should also measure and record this distance. The inspector might also want to make copies of certain written documents at some point during the inspection. Make sure to make yourself a copy of the same documents so that you know exactly which documents the inspector has taken. Then file photos, videos, and copies of documents together. Don’t forget, if your organization uses a safety consultant, be sure he or she is present for the inspection.

17 Fix Hazards and Run Equipment
Quickly fix hazards identified by inspector Explain why an apparent violation is not an actual violation Operate machines if inspector asks Ensure that guards are in place and operator is trained During the walkaround the inspector will point out minor hazards as well as major violations. The inspector might also ask questions about machines and equipment. If the inspector identifies a hazard that can be fixed quickly, do so immediately. This response is a positive reaction to an issue that concerns the inspector. Although the hazard might not be something for which you’d be issued a citation, fixing the hazard demonstrates a good-faith effort and a commitment to safety and health. If the inspector points out an apparent violation and you have information to the contrary, explain why you believe no violation exists. But only do this if you have studies or special knowledge to back up your assertion. If there is any deviation from regulations, be sure to document it in writing by stating why the deviation is necessary and what alternative procedures are in place. Show this documentation to the inspector. The inspector might want to see how equipment works if it’s not operating at the time of the walkaround. Although you’re not required to run a machine just because the inspector asks, it’s generally a good policy to cooperate unless it would be unsafe to start up the machine—for example, if it’s locked out for repairs. Of course, before starting up any machines, make sure all safeguards are in place, a trained operator is present, and appropriate PPE is available for everyone involved in the walkaround.

18 Employee Interviews Question employees privately
Determine safety knowledge and culture Determine if employees can discuss safety concerns with management Find out if employees have any safety concerns The inspector will probably also want to speak to a few employees. Sometimes the inspector will ask you to select a few workers from different areas of your facility and send them to a conference room for private interviews. Other times, an inspector might pick employees on the production floor and talk to them right there. Either way, during an inspection the inspector has the right to question employees privately and employees have the right to talk to the inspector privately. During employee interviews, the inspector will try to determine the employees’ level of safety knowledge, which will reflect the quantity and quality of safety training you provide. The inspector will also ask questions to try to understand the safety culture in your organization. Do employees feel safe? Does management support safety? Are employees involved in safety? In addition, the inspector will want to make sure employees feel comfortable discussing safety concerns with management, and that employees feel management makes an effort to resolve safety issues. Finally, the inspector will usually ask employees if they have any specific safety concerns.

19 Closing Conference Delay of the closing conference
Discussion of all apparent violations Discussion of relevant OSHA standard(s) Now we come to the end of the inspection—the closing conference. The closing conference is where the inspector and your key personnel gather back in the conference room to discuss the inspection and to officially close the book on the inspection part of the process. In some cases, the inspector might want to delay the official closing conference until a later date if there are complex issues that require further investigation, If that’s the case, the inspector will likely conduct an unofficial closing conference to discuss the inspection results so far and explain why the inspection will remain open. You can also request a delay if you need time to gather key individuals such as corporate safety personnel or consultants who are not on-site. If there is no need for a delay, the inspector will go ahead and discuss apparent safety violations as well as other safety and health hazards that were noted during the walkaround. Not all violations will turn into citations. The inspector may not indicate at this point which violations will result in citations. However, the inspector will discuss all the relevant OSHA standards that were violated.

20 Closing Conference (cont.)
Abatement requirements OSHA consultation programs Post-conference violations and citations The inspector will also discuss abatement requirements and may even provide suggestions about how to correct problems. In addition, the inspector will inform you of OSHA programs that are available to help organizations comply with OSHA requirements—for example, the OSHA Consultation Program. These programs can be very helpful and assist you in avoiding future violations and generally creating a safer workplace. After the closing conference, the inspector may discover additional violations that were not discussed at the conference because they were pending further review. If this happens, the inspector will call you to discuss any additional violations and abatement requirements. Think about the closing conferences you have attended and the information that was discussed.

21 Your Role in the Closing Conference
Take notes and listen Explain mitigating factors that prove why a situation is not really a violation Provide proof of abatement efforts that are in process You play an important role in the closing conference. In particular, there are three important steps you can take to make sure the conference goes well and your organization and the inspector both have the information needed to proceed with the post-inspection process. Take plenty of notes and listen carefully to what the inspector says. Make sure you understand each of the inspector’s concerns and are able to differentiate between actual violations that require abatement and other hazards that were pointed out in the walkaround, which are concerns and should be corrected but will not result in a citation. Explain any mitigating factors or other information that may help prove why an apparent violation is not an actual violation. For example, you may have previous monitoring results that show employee exposures are below safe exposure limits. If so, this is the time to present your documentation and discuss it with the inspector. You may also have some documentation showing that you recently became aware of a hazardous situation and are already in the process of correcting it. For example, you might have records of a meeting with safety personnel in which the problem was discussed and ideas were generated for resolving the problem.

22 Citations and Penalties
Format of the citation Citation posted for 3 days or until abatement completed Proposed penalties due, unless contested Penalties for failure to abate and for repeated violations If you are cited for an OSHA standard violation, the inspector will discuss the format of the citation during the closing conference and tell you to expect the citation to arrive by certified mail. The inspector will also remind you that you are required to post the citation near the area where the violation was found for a minimum of 3 days, or until abatement is completed, if the abatement process takes more than 3 days. All proposed penalties for the violation must be paid right away unless you intend to contest the violations and penalties. The inspector will also discuss penalties for failure to abate as well as penalties for repeated violations.

23 Abatement Abatement deadline determined
Abatement goals provided by inspector Successful abatement methods discussed Progress reports may be required Abatement dates may be modified Now let’s talk about abatement—in other words, correcting safety problems that violate OSHA standards and lead to citations. The inspector will determine approximately how long it will take to abate each violation. The abatement date will depend on a number of factors, including the severity of the hazard, relative ease of abatement, number of items that require abatement, and so forth. The inspector will then assign an abatement deadline for each violation. The inspector will also provide you with abatement goals, but not the specific method of abatement. That’s up to you. For example, the abatement goal might be guarding the point of operation of a piece of machinery. It’s up to you to decide which type of machine guard can best meet this goal. If you’re not sure how to abate a violation, the inspector will share methods he or she has seen used successfully in other facilities to correct similar safety problems. The inspector may require you to submit progress reports on certain long-term or complex abatement issues to make sure that you are making strides toward successful abatement of the hazard. You may request that OSHA extend or modify abatement dates. Requests must be submitted in writing, and will usually be granted as long as you are making reasonable progress toward abatement.

24 Right to Appeal 15 working days Submitted in writing
Posting the appeal Occupational Safety and Health Review Commission Lawyers and consultants You have the right to appeal or contest a citation. However, you must do so within 15 working days of receipt of the citation. Appeals must be submitted in writing and should be sent by certified mail. Be sure to leave sufficient time for delivery. Appeals must be posted prominently near the location of the violation—right next to the citation would be good. The purpose of this posting is to give your employees the opportunity to review your appeal. Your appeal will be reviewed by the Occupational Safety and Health Review Commission. This commission is an independent agency of the U.S. government that is not connected with OSHA. Administrative law judges are assigned to hear cases involving contested OSHA citations. Juries are not involved. If you appeal goes to the commission, you will most likely need a lawyer or safety consultant who is very familiar with the OSHA appeal process to properly present your case.

25 Informal Conference and Settlement Agreement
Discuss citations and penalties Be prepared with evidence, arguments, and contrition Offer of expedited settlement agreement Don’t make promises you can’t keep An alternative to the appeal process is the informal conference. This is your opportunity to discuss citations and penalties with OSHA officials, to present concrete arguments why a citation or penalty should be reduced, and to work out a settlement agreement. Come to the informal conference prepared to argue why your organization deserves some relief. There may be mitigating factors, misunderstandings about OSHA requirements, or difficulties encountered in abatement efforts. Be sure to demonstrate your commitment to employee safety and health during the conference. A show of contrition and an earnest desire to improve the safety culture in your organization wouldn’t hurt either. Sometimes citations will come with an expedited settlement agreement that offers a penalty reduction of up to 50 percent. To take advantage of this offer, you have to sign a commitment to total abatement and agree not to seek an appeal or modification to the citation. Don’t rush to sign a settlement agreement just because the penalty is reduced. There may be other considerations such as the cost of abatement or the stigma of citations that could result in repeated or willful citations down the road. And, don’t make promises you can’t keep. If you sign, make sure you can live up to the agreement.

26 Inspection Process: Multiple Choice
What should you photograph or videotape during an investigation? a. Everything the inspector does b. Only when the inspector finds a citation c. The final summary of the inspection When will you find out if you are being cited for OSHA violations? a. At the closing conference Now let’s consider a few questions about the information presented in the previous slides concerning the inspection process. Choose the best answer for each question: 1. What should you photograph or videotape during an investigation? Is it A. Everything the inspector does, B. Only when the inspector finds a citation, or C. The final summary of the inspection? 2. When will you find out if you are being cited for OSHA violations? Is it A. At the closing conference, B. When the inspector arrives at your facility, or C. When the inspector completes the final report? b. When the inspector arrives at your facility c. When the inspector completes the final report

27 Inspection Process: Multiple Choice (cont.)
Who decides the abatement method? a. A neutral source b. OSHA does c. You do Who hears an appeal of an OSHA citation? a. A lawyer b. The Occupational Safety and Health Review Commission Slide Show Notes 3. Who decides the abatement method? Is it A. A neutral source, B. OSHA, or C. You do? 4. Who hears an appeal of an OSHA citation? Is it A. a lawyer, B. The Occupational Safety and Health Review Commission, or C. The inspector who performed your walkthrough? c. The inspector who performed your walkthrough

28 Inspection Process Do you understand:
What the inspector will do and look for? What you should do during the inspection? How employee interviews will be conducted? The purpose of the closing conference? Citation, penalty, and abatement procedures? Settlements and appeals? Before we conclude the session, take a moment to make sure you understand all the information presented in the previous slides concerning the inspection process. Do you understand: What the inspector will do and look for? What you should do during the inspection? How employee interviews will be conducted? The purpose of the closing conference? Citation, penalty, and abatement procedures? Settlements and appeals? You must understand all this information so that you can successfully navigate the inspection process and deal effectively with any citations, penalties, and abatement orders that might result from an inspection. Now let’s conclude the session with some key points to remember.

29 Key Points to Remember An OSHA inspection will go more smoothly and produce a better result if you are prepared with an inspection action plan During the inspection, document what the inspector sees and records Respond to citations immediately and abate violations promptly Exercise your right to appeal citations if you believe you are not in violation Here are the main points to remember from this session on OSHA inspections, citations, and penalties: An OSHA inspection will go more smoothly and produce a better result if you are prepared with an inspection action plan. During the inspection, document what the inspector sees and records. Respond to citations immediately and take necessary steps to abate violations promptly. Exercise your right to appeal a citation if you believe you are not in violation. This concludes the OSHA inspection, citations, and penalties training session.


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