CAT File No. P-1240-33
MoT File No. EMIS 27453
CIVIL AVIATION TRIBUNAL
Minister of Transport, Applicant
- and -
Gary K. Shelton, Respondent
Aeronautics Act, R.S.C. 1985, c. A-2, ss 3, 7.7, 7.9(5), 8.4(2), 8.7(1)
Air Regulations, C.R.C. 1978, c. 2, ss 101(1), 210, 807, 808
Certificate of Airworthiness, Inspection
Robert L. Mortimer
Decision: October 21, 1996
The Minister has not proven that Mr. Shelton contravened paragraph 210(1)(a) of the Air Regulations as specified in the Notice of Assessment of Monetary Penalty dated January 31, 1996. The Minister's allegations are therefore dismissed.
The Review Hearing on the above matter was held Wednesday, September 25, 1996 at 10:00 hours at the Court House in the city of Fort St. John, British Columbia.
A Notice of Assessment of Monetary Penalty dated January 31, 1996 was forwarded to Mr. Gary K. Shelton from Mr. W.T. Cole, Regional Director, Civil Aviation Enforcement, Pacific Region, Transport Canada. The Notice reads in part:
Pursuant to section 7.7 of the Aeronautics Act, the Minister of Transport has decided to assess a monetary penalty on the grounds that you have contravened the following provision(s):
Air Regulation 210(1)(a) in that, at approximately 22:00 hours Coordinated Universal Time on or about September 07, 1995, at or near Fort St. John, B.C., you did unlawfully fly a Cessna 337A aircraft bearing Registration Marks C-FWLV when there was not in force in respect of the aircraft, a Certificate of Airworthiness.
In Schedule "A", the Notice of Assessment of Monetary Penalty details 17 subsequent counts that are the same as the one above except for time and date. The date of the flight in the last count is October 15, 1995. The assessed penalty for each count is $250.00. The final paragraph of Schedule "A" states:
Pursuant to Section 8.4(2) of the Aeronautics Act, you as operator of the aircraft, bearing Canadian registration markings C-FWLV, are liable for the penalty provided for the contraventions.
Payment of the total assessed penalty of $4,500.00 was not received by the prescribed date of March 1, 1996; therefore, arrangements were made to hold a Review Hearing as provided for in section 7.9 of the Aeronautics Act.
In opening Transport Canada's case, Mr. Hudson stated that on October 12, 1995 information had been received from the T.C. Aviation Regulation District Office in Prince George that a Cessna 337 bearing U.S. registration markings N6385F and Canadian registration markings C-FWLV was being operated by a Gary Shelton of Hudson Hope, B.C. Allegedly, the aircraft was not registered, and it did not have a valid Canadian Certificate of Airworthiness.
Mr. Hudson stated further that, on August 23, 1995, Mr. Shelton, as owner of and pilot for Northwoods Flying Services Ltd, requested a flight permit to fly C-FWLV from Vacaville, CA. to Fort St. John, B.C. A Transport Canada Flight Permit was issued, valid for three days commencing August 25, 1995, provided that the aircraft was flown to Fort St. John, B.C. in the most direct route possible. The aircraft was de-registered from the U.S. Registry the same day.
Mr. Shelton allegedly continued to operate the aircraft long after the Flight Permit expired, without re-registering the aircraft in Canada. To obtain a Canadian Certificate of Registration (C of R), an imported aircraft has to undergo an airworthiness inspection. An inspection was never done, and the aircraft was operated until mid-October 1995 without either a C of R or a Certificate of Airworthiness (C of A).
The Minister's first witness, Mr. Hessberger, stated that he visited the Fort St. John area to find out the story on the aircraft, where it was, how it was being operated, who had it, and so on. On October 19, 1995 at the Fort St. John Airport, he met with T.C. personnel from Fort St. John, the RCMP, and other T.C. personnel who were in Fort St. John at the time. He was advised by these other T.C. personnel that they had seen the aircraft in question, and that Mr. Shelton had a property at Hudson Hope.
Accompanied by the RCMP, Mr. Hessberger on October 20, 1995 went to Mr. Shelton's property at Hudson Hope where he found the aircraft. Mr. Shelton was not there at the time. Mr. Hessberger looked at the aircraft and took some photographs, and left after a relatively short time.
Mr. Hessberger subsequently contacted the U.S. Federal Aviation Administration (FAA) and obtained from them a certified history of the aircraft. He then obtained from Mr. Trischuk copies of aircraft movements pertaining to C-FWLV at Fort St. John Airport for September and October 1995.
Exhibit M-1 is a letter dated December 6, 1995 from Mr. Shelton to Mr. Hessberger in response to a letter of investigation dated November 15, 1995 sent from Mr. Hessberger to Mr. Shelton. In Exhibit M-1 Mr. Shelton wrote:
Dear Mr. Hessberger
I received your letter of Nov. 15, 1995 and only have the following in response. I live on a ranch which has no phone access and the drive to Fort St. John takes an entire day, whereas it is only a 20 minute flight when things have to be picked up in town. I have been waiting for my Taylorcraft aircraft to complete its inspection so I can have an aircraft to get to town, but the inspection has been drug out over A year by Government inspectors. For what it is worth the 337 was licensed and flying with a current airworthiness certificate good until spring of 1996. It was decided to register the plane in Canada in August but that could have waited as it was perfectly legal to fly the aircraft in Canada with US marks.
I had no intention to break the law and I hope that fact will be considered in your recommendation.
Exhibit M-2 is a letter dated October 16, 1995 from Mr. Roman Anthony, FSS Specialist at Fort St. John Airport, to Mr. Hessberger. In that letter Mr. Anthony confirms seeing C-FWLV taxi by the Operations Building at 17:45 hours on October 15, 1995, and that according to their records it departed Fort St. John for Hudson Hope at 17:50 hours.
Exhibit M-3 comprises copies of movement sheets and a computer extract listing the departures and arrivals of C-FWLV at Fort St. John Airport during the months of September and October 1995. The records did not reflect any movements of C-FWLV during the months of May to August 1995.
Exhibit M-4 is made up of copies of two documents: an Application for a Flight Permit and a message to T.C. from the FAA Aeronautical Center in Oklahoma City. The Application for Flight Permit was dated August 23, 1995, and was for a Cessna 337A Serial No. 337-0385 to be flown from Vacaville CA. to Fort St. John. The FAA message confirmed the deregistration of N6385F Cessna Serial No. 337-0385 from the United States Civil Aircraft Register effective August 25, 1995.
Mr. Hessberger explained that a Flight Permit was required for an aircraft being imported to Canada when that aircraft does not have a C of R or C of A at the time of importation. He further stated that, when an aircraft is de-registered in the U.S., the U.S. C of A is then no longer valid.
Exhibit M-5 is a Type Certificate for the Cessna Model 337A. Exhibit M-6 is a Certified True Copy of all aircraft file records pertaining to Cessna 337A serial number 3370385 in the Aircraft Registration Branch, FAA, Oklahoma City. Exhibit M-7 is a collection of copies of U.S. records pertaining to the ownership of Cessna 337-0385.
Exhibit M-8 is a Department of Transport Secretary's Certificate concerning the subject aircraft. The Certificate, dated August 27, 1996, reads in part:
... THAT during the period beginning September 7, 1995 until October 15, 1995, no Certificate of Airworthiness was issued by or on behalf of the Minister of Transport, in respect of Cessna 337A aircraft, serial number 337-0385, nationality and registration marks C-FWLV.
The Minister's final Exhibit, M-9, is a series of photographs of Cessna 337A N6385F / C-FWLV and documentation aboard the aircraft.
In cross-examination of Mr. Hessberger, Mr. Daley questioned the admissibility of the photographs taken at Mr. Shelton's property because they were taken on private property without the owner's permission. Mr. Hessberger replied that he had the authority vested in him by subsection 8.7(1) of the Aeronautics Act, which gave him access to any aerodrome when carrying out his responsibilities as a T.C. Inspector. Mr. Daley questioned the definition of 'aerodrome', and asserted that Mr. Shelton's property at Hudson Hope was not an aerodrome.
Under further questioning by Mr. Daley, Mr. Hessberger admitted that he had no hard evidence that C-FWLV had flown into Mr. Shelton's property, and that it is possible the aircraft could have been trucked to that location.
With reference to Exhibit M-1, Mr. Daley asked Mr. Hessberger what the significance was of that letter. Mr. Hessberger stated that the letter showed Mr. Shelton had custody and control of the aircraft. When Mr. Daley then asked whether Mr. Shelton had been given any warning before he wrote letter M-1, Mr. Hessberger stated that in his letter to Mr. Shelton on November 15, 1995 he advised Mr. Shelton that he was "... not obliged to assist in this investigation ...." Although he could not be certain Mr. Shelton did not receive some other form of warning, that was the only warning Mr. Hessberger could claim that Mr. Shelton received; nevertheless, Mr. Hessberger believed that statement was sufficient.
With reference to the Charter of Rights, Mr. Daley established that Mr. Hessberger did not tell Mr. Shelton that he had the right to retain counsel and the right to remain silent. Mr. Daley further suggested that, after the disclaimer that he was not obliged to assist in the investigation, the letter then invited Mr. Shelton to contact the T.C. Inspector. Mr. Hessberger stated that he was not "wanting to" have Mr. Shelton contact him, but was only giving him an "opportunity to" contact him.
Mr. Daley then questioned Mr. Hessberger about his knowledge of the principals of Northwoods Flying Service Ltd. When Mr. Hessberger stated he did not know who the principals were, Mr. Daley advised that Mr. Scott Kyllo was the sole director of the company, and produced a BC OnLine corporate search printout received that day, September 25, 1996, which confirmed his statement; the printout was entered as Exhibit D-1. In further amplification, Mr. Daley advised that Mr. Shelton resigned as President of Northwoods Flying Service Ltd. on January 15, 1996 in a letter that was entered as Exhibit M-2. Finally, Mr. Daley produced as Exhibit D-3 a copy of a resolution of the sole director of Northwoods Flying Service Ltd. dated November 29, 1995, but "deemed effective the 26th day of June, 1995", that Scott Kyllo was appointed President of the Company.
With reference to the pilot's log book that Mr. Hessberger photographed in the aircraft at Mr. Shelton's property, Mr. Daley asked if he had noted that the last entry was dated August 1, 1995, and Mr. Hessberger stated that he had.
Mr. Daley asked on what basis Mr. Hessberger had concluded that Mr. Shelton was the operator of C-FWLV. Mr. Hessberger stated he concluded Mr. Shelton had custody of the aircraft because it was at his property, but admitted he did not have any information that indicated Mr. Shelton was the only pilot who had flown the aircraft, and that other pilots could have flown it. Mr. Hessberger acknowledged that because he assumed Mr. Shelton was an officer of Northwoods Flying Service Ltd. he considered him a major operator of the aircraft.
Asked whether he took Mr. Shelton's letter of December 6, 1995 (Exhibit M-1) as an admission of operating the Cessna in question on the dates alleged, Mr. Hessberger stated he did not.
In redirect, Mr. Hudson established that the request for Flight Permit on August 23, 1995 was made by Mr. Shelton as Chief Pilot of Northwoods Flying Service Ltd. In further response to Mr. Hudson, Mr. Hessberger stated that he had observed Mr. Shelton's Hudson Hope property from the air, and that in his judgment it was suitable for aircraft to land on.
With reference to a further question from Mr. Daley about the application for Flight Permit, Mr. Hessberger stated that he did not know who flew the aircraft from the U.S. to Canada, and that he had no direct knowledge that Mr. Shelton piloted the aircraft during the flights in September and October 1995.
The Minister's second witness was Mr. Trischuk, the Flight Service Station Manager at Fort St. John Airport who identified and confirmed Exhibit M-3 as showing the arrival and departure times of C-FWLV during the months of September and October 1995.
The Minister's third witness was Mr. Anthony, who testified that he had seen C-FWLV on October 15, 1995 as stated in his letter at Exhibit M-2. That concluded the Minister's case.
Mr. Daley stated he had no evidence to present or witnesses to be heard. He pointed out that in accordance with paragraph 7.9(5)(b) of the Aeronautics Act the document holder is not compelled to give any evidence, and suggested that no adverse inference should be drawn from this choice.
In his summation and final argument, Mr. Hudson contended that Mr. Shelton as operator of aircraft C-FWLV had contravened paragraph 210(1)(a) of the Air Regulations. He stated the identity of the contravener and the aircraft had been clearly established by Mr. Hessberger's testimony and the evidence submitted: the photographs, the Flight Permit Application, the type certificate and the bill of sale. This proved that Mr. Shelton had care and control of C-FWLV and pursuant to subsection 8.4(2) of the Aeronautics Act was the operator of the aircraft during the time in question. Mr. Hudson argued further that C-FWLV had been flown at or near Fort St. John during the period from September 7, 1995 to October 15, 1995 as evidenced by the traffic records and the testimony of the two witnesses from the Flight Service Station. Further, the Minister of Transport Secretary's Certificate (Exhibit M-8) showed that a C of A was not in force during the period in question.
Mr. Hudson argued that the evidence proved that Mr. Shelton continued to operate the aircraft after bringing it into Canada and that it was flown for 18 flights at or near Fort St. John without a C of A. He reiterated that Mr. Hessberger had the authority under subsection 8.7(1) of the Aeronautics Act to enter any aircraft, aerodrome, or facility relating to aeronautics for the purpose of making inspections. Mr. Hudson stated that on a balance of probabilities it was unlikely that the aircraft's wings had been removed so that it could be towed rather than flown to the Shelton property. Finally, he contended that the fact that Mr. Shelton was no longer a director of the company at the time of the flights in question was irrelevant to establishing that Mr. Shelton was the operator of the aircraft.
In his summary and final argument Mr. Daley again raised two objections based on the Canadian Charter of Rights and Freedoms by which he requested that certain evidence be excluded. The first concerned an alleged unwarranted or illegal search or seizure. He suggested that Mr. Shelton's property was not an aerodrome in the sense of section 8.7 of the Aeronautics Act, and that therefore any evidence gathered there should not be allowed. The second objection concerned the failure to warn Mr. Shelton that he was not required to make any statement and that anything he did state could be used against him, and that he had a right to counsel.
Mr. Daley argued that the Minister had failed to discharge the burden of proof incumbent on him to satisfy the allegations made against Mr. Shelton. Mr. Daley pointed out that in all counts the substance of the charge is that Mr. Shelton piloted the aircraft himself, although in his submission the Minister took a slightly different approach contending Mr. Shelton was the operator of the aircraft. Mr. Daley stated the actual evidence showed that Mr. Shelton ceased to have a legal interest in the aircraft on January 15, 1995, and that the only connection the Minister could make between Mr. Shelton and the aircraft was that he had identified himself as Chief Pilot for Northwoods Flying Service Ltd. on the Application for Flight Permit. The fact that the aircraft was on Mr. Shelton's property one day is insufficient to constitute custody and control of that aircraft. Mr. Shelton does not fit the definition of operator of the aircraft in that he was neither owner, nor lessee, nor hirer of C-FWLV at the time. Also, there is no evidence that Mr.Shelton flew the aircraft during the time period in question.
Section 8 of the Canadian Charter of Rights and Freedoms states:
8. Everyone has the right to be secure against unreasonable search or seizure.
Section 10 of the Canadian Charter of Rights and Freedoms states in part:
10. Everyone has the right on arrest or detention
(b) to retain and instruct counsel without delay and to be informed of that right; and
Subsection 7.9(5) of the Aeronautics Act states:
(5) On a proceeding before a member of the Tribunal under subsection (4),
(a) the burden of proving that the person appearing before the member has contravened the designated provision that the person is alleged to have contravened is on the Minister; and
(b) the person is not required and shall not be compelled to give any evidence or testimony in the matter.
Subsection 8.4(2) of the Aeronautics Act states:
(2) The operator of an aircraft may be proceeded against in respect of and found to have committed an offence under this Part in relation to the aircraft for which another person is subject to be proceeded against unless, at the time of the offence, the aircraft was in the possession of a person other than the operator without the operator's consent and, where found to have committed the offence, the operator is liable to the penalty provided as punishment therefor.
Subsection 8.7(1) of the Aeronautics Act states:
8.7 (1) Subject to subsection (4), the Minister may
(a) enter any aircraft, aerodrome, facility relating to aeronautics or any premises used for the design, manufacture, distribution, maintenance or installation of aeronautical products for the purposes of making inspections relating to the enforcement of this Part;
Section 3 of the Aeronautics Act gives the following interpretation:
"aerodrome" means any area of land, water (including the frozen surface thereof) or other supporting surface used, designed, prepared, equipped or set apart for use either in whole or in part for the arrival, departure, movement or servicing of aircraft and includes any buildings, installations and equipment situated thereon or associated therewith;
Subsection 101(1) of the Air Regulations gives the following interpretation:
"operator", in respect of an aircraft, means the person in possession of the aircraft, whether as owner, lessee, hirer or otherwise ...
Section 210 of the Air Regulations states in part:
210. (1) No person shall fly or attempt to fly an aircraft, other than a hang glider or an ultra-light aeroplane, unless there is in force in respect of that aircraft
(a) a certificate of airworthiness issued under this Part or under the laws of the country in which the aircraft is registered,
Section 807 of the Air Regulations states:
807. The owner or operator of any aircraft shall, upon reasonable notice given to him by the Minister, make available such aircraft for inspection in accordance with the notice.
Section 808 of the Air Regulations states in part:
808. (1) Every person who
(a) is the holder of any licence, certificate or permit issued under these Regulations,
(b) is the owner, operator or pilot-in-command of any aircraft in respect of which any certificate, log book or other document is kept, or
(c) has in his possession any licence, certificate or permit issued under these Regulations or any log book or other document relating to any aircraft or commercial air service,
shall, upon demand,
(d) produce the licence, certificate, permit, log book or other document, as the case may be, for inspection by a peace officer, officer of customs or immigration or any person thereto authorized by the Minister.
Mr. Daley raised two objections related to the Canadian Charter of Rights and Freedoms. The first was that any evidence gathered at Mr. Shelton's property on October 20, 1995 should not be admitted because Mr. Shelton's property was not an aerodrome as defined in the Aeronautics Act, and therefore the authority in subsection 8.7(1) of the Aeronautics Act to enter property did not apply. Section 8 of the Canadian Charter of Rights and Freedoms refers to the right to be secure against unreasonable search.
The interpretation of aerodrome in the Act states in part "... any area of land ... used ... for the arrival ... of aircraft ...." Sections 807 and 808 of the Air Regulations make provision for any aircraft and all related documents to be made available for inspection upon reasonable notice or on demand. Given these authorities, I do not consider the evidence in question was obtained as the result of an unreasonable search. Moreover, in the Appeal Determination of the Minister of Transport and Francis Clayton Pilgrim, CAT File No. A-0052-37 dated May 2, 1989, it was determined that evidence that was obtained in the form of documents taken from an aircraft without permission and without a search warrant should have been accepted at the Review Hearing level. Finally, although it was acknowledged that the aircraft could have been trucked into Mr. Shelton's property at some time before it was seen there by Inspector Hessberger, no evidence to that end was presented by Mr. Daley. I am satisfied that, as it was there only five days after it last flew out of Fort St. John, the aircraft likely was flown into the property, in which case the interpretation of aerodrome would apply. I therefore accept the evidence entered as Exhibit M-9.
The second objection raised by Mr. Daley concerned the letter sent Mr. Shelton by Mr. Hessberger on November 15, 1995. Mr. Daley stated that in keeping with the Canadian Charter of Rights and Freedoms, Mr. Shelton had the right to:
- be informed he was under investigation;
- retain and instruct counsel without delay; and
- be informed he was not required to make any statement but that any statement he makes may be used against him.
Mr. Daley argued that as T.C. did not observe these rights in Mr. Hessberger's letter of November 15, 1995, Mr. Shelton's reply of December 6, 1995 should not be accepted as evidence. In section 10 of the Canadian Charter of Rights and Freedoms the right to retain and instruct counsel without delay applies "on arrest or detention", neither of which apply in this case. The other two rights cited are not in the Canadian Charter of Rights and Freedoms. I therefore accept the evidence entered as Exhibit M-1.
In accordance with paragraph 7.9(5)(a) of the Aeronautics Act, the onus is on the Minister to prove the alleged series of contraventions. The issues of concern are:
(1) Did the alleged 18 flights occur on the dates and at the times specified?
(2) Did Mr. Shelton fly C-FWLV on any or all of the 18 flights?
(3) Was Mr. Shelton the operator of C-FWLV on any or all of the 18 flights?
(4) Did C-FWLV have in force a Certificate of Airworthiness during the 18 flights?
The evidence presented at Exhibit M-3 and the testimonies of Mr. Trischuk and Mr. Anthony are sufficient to accept that the arrivals and departures of C-FWLV at Fort St. John Airport did occur as alleged. What remains unknown is who was flying the aircraft and precisely where the points of origin and destination respectively were for each of those flights.
No evidence was presented to show that Mr. Shelton was the pilot-in-command or indeed was even aboard the aircraft on any of those 18 flights. In his letter of December 6, 1995 to Mr. Hessberger, Mr. Shelton contends that "the 337 was licensed and flying with a current airworthiness certificate good until spring of 1996" and "it was perfectly legal to fly the aircraft in Canada with US marks." He also writes that "I had no intention to break the law ...." I find that neither of those statements nor anything else in that letter is specific enough to implicate Mr. Shelton as having flown C-FWLV on any or all of the flights specified in the Notice of Assessment of Monetary Penalty.
To be deemed the operator of C-FWLV in accordance with the Aeronautics Act, Mr. Shelton had to be in possession of C-FWLV. The fact that Mr. Shelton applied for a Flight Permit on August 25, 1995 as the Chief Pilot of Northwoods Flying Service Ltd. does not establish possession during the period September 7 to October 15. The only other evidence to that end presented by the Minister was a series of photographs of the aircraft, and of documents that were in it, taken on Mr. Shelton's property five days after the last of the alleged contravening flights.
The photographs at Exhibit M-9 comprise a photograph of C-FWLV taken at Hudson Hope Airport on July 20, 1995, which was before the aircraft was imported and therefore has no relevance; photographs of C-FWLV including close-ups of its Canadian markings and of blanked out U. S. markings taken at Mr. Shelton's property on October 20, 1995; and photographs of Mr. Shelton's log book and of a Provisional Certificate of Registration and Flight Permit. The last entry in the log book is apparently August 1, 1995, and the date of issue on the Flight Permit appears to be August 28, 1995. That evidence supports a contention that Mr. Shelton had possession of the aircraft on October 20, 1995, but not on any of the dates of the alleged contravening flights.
Mr. Shelton sold C-FWLV to Northwoods Flying Service Ltd. on January 1, 1995 while the aircraft was still registered in the U.S. (Exhibit M-7); he was not the owner of C-FWLV during the period of the 18 flights in question. I accept that on the day of the hearing, Mr. Scott Kyllo was the only officer of Northwoods Flying Service Ltd., as submitted in Exhibit D-1. According to Exhibit D-2, Mr. Shelton resigned as President of Northwoods Flying Service Ltd. on January 15, 1995. Although that letter must be given less weight than if it had been backed by sworn testimony, no evidence to the contrary was presented by the Minister identifying Mr. Shelton as an officer of the company, or in any other way showing that he had custody and control, that is possession, of C-FWLV during the time period in question. In that absence of any contrary evidence, I accept that Mr. Shelton was not President nor a Director of Northwoods Flying Service Ltd. during the period September 7 to October 15, 1995.
The Secretary's Certificate at Exhibit M-8 states in part:
THAT during the period beginning September 7, 1995 until October 15, 1995, no Certificate of Airworthiness was issued by or on behalf of the Minister of Transport, in respect of Cessna 337A aircraft, serial number 337-0385, nationality and registration marks C-FWLV.
The Certificate is evidence that no C of A was issued during that time period, but it does not address the question of whether or not a valid C of A was issued before September 7, 1995 and continued in force during the period of September 7 to October 15. The possibility exists that a C of A was issued sometime between the completion of the importation flight and September 7, 1995. Exhibit M-8 does not rule out that possibility.
The Minister has established that during the period from September 7, 1995 to October 15, 1995, C-FWLV landed at or took off from Fort St. John Airport 18 times. The Minister has not proven, however, that Mr. Shelton flew the aircraft or was the operator of the aircraft for any of those flights. Moreover, the evidence submitted by the Minister to show that C-FWLV did not have in force a valid C of A during those flights is not conclusive.
In accordance with paragraph 7.9(5)(a) of the Aeronautics Act, the burden of proof of the allegations is on the Minister, and he has not met that requirement.
The Minister has not proven that Mr. Shelton contravened paragraph 210(1)(a) of the Air Regulations as specified in the Notice of Assessment of Monetary Penalty dated January 31, 1996. The Minister's allegations are therefore dismissed.
Robert L. Mortimer
Civil Aviation Tribunal
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