Non Raceday Inquiry RIU v SJ Thompson-Brown and MP Brown – Decision dated 3 June 2013
ID: JCA12659
Decision:
NON RACEDAY ENQUIRY BEFORE THE JUDICIAL CONTROL AUTHORITY
COMMITTEE: N Moffatt: Chair, T Utikere: Committee Member
VENUE: Hastings Racecourse, Hastings
Date: 27th May 2013
INFORMATION NO: A 4156
BETWEEN
Mr R P BEVEGE (Racecourse Inspector for RIU)
Informant
AND
Susan Jane Thompson-Brown and Michael Peter Brown (Licensed Trainers in partnership)
Respondent
REGISTRAR: Mr L Tidmarsh
1. NATURE OF THE CHARGE
1.1 On the 21st day of March 2013, at Otaki, Susan Jane Thompson-Brown and Michael Peter Brown were the registered trainers and the persons for the time being in charge of the unnamed 2 yr old gelding (Captain Rio-Itza Beel) which was presented to race in a 2 year old Catchweight Trial at a trials meeting conducted by the Otaki Owners and Trainers Association, when the said horse was found to have had administered to it a Prohibited Substance, namely Phenylbutazone; and that Susan Jane Thompson-Brown and Michael Peter Brown are in breach of Rules 804(1) and 804(2) of the Rules of Racing, and therefore subject to the penalty or penalties that may be imposed pursuant to Rules 804(1), 804(2) and 804(7) of the Rules of Racing.
Rule 804 (1) states:
A horse which has been brought to a Racecourse or similar racing facility and which is found by a Tribunal conducting an inquiry to have had administered to it or have had present in its metabolism a Prohibited Substance of the type set out in any part of the Fourth Appendix to these Rules shall be, in addition to any other penalty which may be imposed, disqualified for any Race or trial to which the Third Appendix hereto applies in which it has started on that day.
(2) When a horse which has been brought to a Racecourse or similar racing facility for the purpose of engaging in a Race or trial to which the Third Appendix hereto applies is found by a Tribunal conducting an inquiry to have had administered to it or have had present in its metabolism a Prohibited Substance of the type set out in paragraphs 1 to 4 of the Fourth Appendix to these Rules, the Trainer and any other person who in the opinion of such Tribunal conducting such inquiry was in charge of such horse at any relevant time commits a breach of these Rules unless he satisfies the Tribunal that he had taken all proper precautions to prevent the administration or presence of such Prohibited Substance.
(7) A person who commits a breach of sub-Rule (2) or (3) or (4) or (5) or (6) of this Rule shall be liable to:(a) be disqualified for a period not exceeding five years; and/or(b) be suspended from holding or obtaining a Licence for a period not exceeding 12 months. If a Licence is renewed during a term of suspension, then the suspension shall continue to apply to the renewed Licence; and/or (c) a fine not exceeding $25,000.
(8) Any horse connected with a breach of sub-Rule (2) or (3) or (4) or (5) or (6) of this Rule shall be, in addition to any other penalty which may be imposed, disqualified from any Race or trial to which the Third Appendix hereto applies and/or be liable to a period of disqualification not exceeding five years.
1.2 Mr and Mrs Brown admitted the charge and acknowledged they had received a copy of the rules and that they understood the Rules and the charge.
2. FACTS (not contested by Respondents)
2.1 Mr Bevege provided written authority from Mike Godber, Operations Manager Racing Integrity Unit, to proceed with the charge.
2.2 The Respondents are licensed Public Trainers under the Rules of Thoroughbred Racing.
2.3 On the 21st March 2013 they were the trainers and the persons for the time being in charge of the thoroughbred horse an unnamed 2yr g CAPTAIN RIO - ITZA BEEL which had been correctly entered for, and started in, heat six at a trial meeting conducted by the Otaki Owners and Trainers association at the Otaki Racecourse.
2.4 The horse ran fifth in a field of five and was selected as a post race swab. Mr Brown was present when the horse was swabbed and signed the relevant swab card accordingly. He indicated that he had no complaints regarding the swabbing procedures. On this occasion a urine sample was unable to be obtained and a blood sample was taken by the race day veterinarian on duty.
2.5 Mr Bevege explained that while drug testing was rarely done at trials the Racing Integrity Unit had some concerns about rogue behaviour of horses on race day but the same horses being compliant when sent back to the trials.
2.6 A number of horses were randomly selected for drug testing at the Otaki trials on 21st March 2013.
2.7 All samples from the Trial meeting were packaged in accordance with the Regulations and forwarded by courier to the Racing Laboratory where they were received on 26th March 2013 with all seals intact.
2.8 On the 4th April 2013 the Official Racing Analyst reported in writing that the sample from 2g CAPTAIN RIO - ITZA BEEL had tested positive to Phenylbutazone.
2.9 Phenylbutazone is a non-steroidal anti-inflammatory drug for the short-term treatment of pain. Oxphenbutazone is a metabolite of Phenylbutazone. In horses, and race horses in particular, Phenylbutazone is used for the following purposes: pain relief from infections and musculoskeletal disorders including sprains, overuse injuries, tendinitis, arthritis and laminitis. It acts directly on musculoskeletal tissue to control inflammation, therefore reducing secondary inflammatory damage, alleviating pain, and restoring range of motion.
2.10 Phenylbutazone is therefore a Prohibited Substance within the meaning of the Rules of Racing. The presence of Phenylbutazone in a race day sample is prima facia, a breach of the Rules.
2.11 Mr and Mrs Brown were interviewed at their property on the 10th April 2013. They were both shocked when first advised by the investigators of the positive swab. Mrs Brown then explained that they had been treating another 2 year old colt (2c FAST AND FAMOUS - MISS TIMMS) which had suffered a cut to a hind leg. They had been treating the horse by putting a sachet of “Bute” in the horse’s feed. She believed that the wrong feed may have been given to the horses by a stable employee who had worked for them for a short time as both horses are plain brown with no white markings. A written statement was taken from Mrs Thompson-Brown in the presence of Mr Brown.
2.12 Mrs Brown further stated that the CAPTAIN RIO - ITZA BEEL gelding had not been treated with Phenylbutazone in the previous two months. He had previously been treated with Bute when he was gelded over six months prior.
2.13 Mrs Brown was able to produce to the investigators a tube of Phenylbutazone that was stored in the stable gear room. There were no more sachets of the drug on the premises. Enquiries with the respondents Veterinarian revealed that Phenylbutazone sachets had been supplied in February 2013.
2.14 Whilst Mrs Thompson Brown and Mr Brown have administered the drug which is the source of the positive swab to the horse the informant accepts that the administration was an error and not done as a deliberate administration. For that reason both Mr and Mrs Brown have been charged with a breach of the Drug Negligence provisions in the rules rather than the more serious charge of a deliberate administration.
2.15 Mrs Thompson-Brown and Mr Brown were fully co-operative with the investigators conducting this enquiry.
2.16 Mrs Brown said while they did not know how the horse returned a positive they surmised that the feeds must have been mixed up. The Phenylbutazone was mixed in with the feeds which were labelled.
2.17 One of their other horses in an adjoining paddock (2C Fast and Famous-Miss Pimms) was being treated with Phenylbutazone. This horse and the Captain Rio-Itza Beel colt look very alike. They are both 2yr olds, plain brown and with no white markings.
2.18 At the time they had a young lad working for them who was responsible for putting the feed buckets in the paddocks in the mornings.
2.19 As the breach was admitted the Committee found the charge against Mrs Susan Jane Thompson-Brown and Mr Michael Peter Brown proved.
3. Penalty Submissions by Mr Bevege (Racing Integrity Unit)
3.1 When fixing penalty the informant respectfully submits that the respondents are entitled to credit for the following reasons:
3.2 They have accepted responsibility for the positive swab although they cannot fully understand how the horse returned the result.
3.3 They have admitted the offence at the first opportunity and have consented to the matter being determined on a race day, thus minimizing costs to the industry.
3.4 The substance detected has a legitimate therapeutic use in equine medicine and was properly prescribed, although not for this horse.
3.5 Both respondents have been involved in the Thoroughbred Industry for a number of years and have never been involved in any similar offence.
3.6 It is therefore the recommendation of the Informant that neither disqualification nor suspension is appropriate and that the matter can properly be disposed of by way of a fine.
3.7 In this regard as the positive was a result from a Trial Meeting, from an unnamed 2 year old, that was unplaced, and that no punters money was involved, no placings have to be altered, no stakes earnings are involved we seek a fine of $3000. This is half the amount normally sought from a race day swab.
3.8 Rule 804(8) provides for the mandatory disqualification of a horse presented to race when a prohibited substance has been detected. It is therefore submitted that the 2 year old “Captain Rio – Itza Beel” must be disqualified from heat six at the Trial Meeting held at Otaki Racecourse on 21st March 2013.
3.9 The Informant makes no submissions in relation to costs.
3.10 The committee asked Mr Bevege what penalty the RIU would be seeking if the mitigating factors he referred to in this case did not apply. He replied that the submissions would be the same i.e. the RIU would be seeking a fine of the same amount.
4. Penalty Submissions from Mr and Mrs Brown
4.1 Mr Brown referred to a previous charge involving a horse on race day returning a positive swab for the same drug, Phenylbutazone, where the trainer on that occasion was fined $6000.
4.2 Mr Brown said he believed that $3000 was too harsh a penalty. No punters money was involved, the horse did not win the trial and it was not up for sale.
4.3 He said they were small time trainers and struggling in the Racing Industry.
4.4 Mrs Brown said they had held a trainers licence for three years but had been in the industry for 30 years and had a clear record. They were “horrified” that this had occurred.
4.5 Mr Brown queried the submission put forward by Mr Bevege when he said the RIU would seek the same monetary penalty even in the event of a horse winning a trial.
4.6 Mr Brown submitted that the fact his horse ran last in the trial should be taken into account.
4.7 Mr and Mrs Brown were asked if they had any further submissions to put before the committee but said they were satisfied that everything had been covered.
Penalty:
5 Decision and Penalty
5.1 This committee has no precedent to follow. We are not aware of any other cases where a charge has been brought in respect to a positive drug test arising from a trials meeting in New Zealand.
5.2 Authorised trials are run under the “Regulations for Trials” (Third Appendix, New Zealand Rules of Racing). They are generally used to educate young horses and provide the opportunity to get horses of all ages fit and ready for race day. It is also accepted that many young horses are sold based on their ability shown at trials meetings.
5.3 Trials differ to race day in that there is no betting and no stake money on offer however where a horse puts in a good performance its saleability is enhanced.
5.4 The safety of horse and rider is the same regardless, and remains paramount.
5.5 It is imperative that, regardless of race day or trials meetings, all horses competing run free of prohibited substances.
5.6 The RIU submitted that a $3000 monetary penalty is appropriate, being half the amount sought from the same situation occurring at a race meeting. We believe that this an appropriate starting point.
5.7 We have identified a number of situations that we believe could be considered aggravating factors. These include, but are not limited to; a horse winning a trial, a horse under offer for sale, a horse testing positive to a drug that has no legitimate therapeutic use and deliberate administration of a drug.
5.8 In the Brown’s case we are satisfied that none of these factors apply.
5.9 We accept the mitigating factors identified by both parties which include: the Brown’s admission of the breach, their acceptance of responsibility and cooperation with the Racing Integrity Unit, and their clear record.
5.10 Any penalty however has to be of a sufficient level to ensure that trainers do not become complacent or assume that trials meetings are different to race meetings in regard to prohibited substance use.
5.11 Taking into account all the factors mentioned, including the financial position of Mr and Mrs Brown, we impose a monetary penalty of $2000.
5.12 As the hearing was held on race day we make no order for costs.
6 Rule 804(8)
6.1 Further we order the disqualification under the provisions of Rule 804(8) of the New Zealand Rules of Racing of the 2 year old unnamed Captain Rio – Itza Beel gelding from heat 6 at the trials meeting held at Otaki Racecourse on 21st March 2013.
N Moffatt and T Utikere
3 June 2013
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 31/05/2013
Publish Date: 31/05/2013
JCA Decision Fields (raw)
Dmitry: This section contains all JCA fields migrated from the raw data.
Data from these fields should be mapped appropriately to display amongst the standard fields above; please make note of any values below that are missing in the above standard fields but should be there.
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informantnumber: A4156
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penaltyrequired:
decisiondate: 31/05/2013
hearing_title: Non Raceday Inquiry RIU v SJ Thompson-Brown and MP Brown - Decision dated 3 June 2013
charge:
facts:
appealdecision: NO LINKED APPEAL DECISION
isappeal:
submissionsfordecision:
reasonsfordecision:
Decision:
NON RACEDAY ENQUIRY BEFORE THE JUDICIAL CONTROL AUTHORITY
COMMITTEE: N Moffatt: Chair, T Utikere: Committee Member
VENUE: Hastings Racecourse, Hastings
Date: 27th May 2013
INFORMATION NO: A 4156
BETWEEN
Mr R P BEVEGE (Racecourse Inspector for RIU)
Informant
AND
Susan Jane Thompson-Brown and Michael Peter Brown (Licensed Trainers in partnership)
Respondent
REGISTRAR: Mr L Tidmarsh
1. NATURE OF THE CHARGE
1.1 On the 21st day of March 2013, at Otaki, Susan Jane Thompson-Brown and Michael Peter Brown were the registered trainers and the persons for the time being in charge of the unnamed 2 yr old gelding (Captain Rio-Itza Beel) which was presented to race in a 2 year old Catchweight Trial at a trials meeting conducted by the Otaki Owners and Trainers Association, when the said horse was found to have had administered to it a Prohibited Substance, namely Phenylbutazone; and that Susan Jane Thompson-Brown and Michael Peter Brown are in breach of Rules 804(1) and 804(2) of the Rules of Racing, and therefore subject to the penalty or penalties that may be imposed pursuant to Rules 804(1), 804(2) and 804(7) of the Rules of Racing.
Rule 804 (1) states:
A horse which has been brought to a Racecourse or similar racing facility and which is found by a Tribunal conducting an inquiry to have had administered to it or have had present in its metabolism a Prohibited Substance of the type set out in any part of the Fourth Appendix to these Rules shall be, in addition to any other penalty which may be imposed, disqualified for any Race or trial to which the Third Appendix hereto applies in which it has started on that day.
(2) When a horse which has been brought to a Racecourse or similar racing facility for the purpose of engaging in a Race or trial to which the Third Appendix hereto applies is found by a Tribunal conducting an inquiry to have had administered to it or have had present in its metabolism a Prohibited Substance of the type set out in paragraphs 1 to 4 of the Fourth Appendix to these Rules, the Trainer and any other person who in the opinion of such Tribunal conducting such inquiry was in charge of such horse at any relevant time commits a breach of these Rules unless he satisfies the Tribunal that he had taken all proper precautions to prevent the administration or presence of such Prohibited Substance.
(7) A person who commits a breach of sub-Rule (2) or (3) or (4) or (5) or (6) of this Rule shall be liable to:(a) be disqualified for a period not exceeding five years; and/or(b) be suspended from holding or obtaining a Licence for a period not exceeding 12 months. If a Licence is renewed during a term of suspension, then the suspension shall continue to apply to the renewed Licence; and/or (c) a fine not exceeding $25,000.
(8) Any horse connected with a breach of sub-Rule (2) or (3) or (4) or (5) or (6) of this Rule shall be, in addition to any other penalty which may be imposed, disqualified from any Race or trial to which the Third Appendix hereto applies and/or be liable to a period of disqualification not exceeding five years.
1.2 Mr and Mrs Brown admitted the charge and acknowledged they had received a copy of the rules and that they understood the Rules and the charge.
2. FACTS (not contested by Respondents)
2.1 Mr Bevege provided written authority from Mike Godber, Operations Manager Racing Integrity Unit, to proceed with the charge.
2.2 The Respondents are licensed Public Trainers under the Rules of Thoroughbred Racing.
2.3 On the 21st March 2013 they were the trainers and the persons for the time being in charge of the thoroughbred horse an unnamed 2yr g CAPTAIN RIO - ITZA BEEL which had been correctly entered for, and started in, heat six at a trial meeting conducted by the Otaki Owners and Trainers association at the Otaki Racecourse.
2.4 The horse ran fifth in a field of five and was selected as a post race swab. Mr Brown was present when the horse was swabbed and signed the relevant swab card accordingly. He indicated that he had no complaints regarding the swabbing procedures. On this occasion a urine sample was unable to be obtained and a blood sample was taken by the race day veterinarian on duty.
2.5 Mr Bevege explained that while drug testing was rarely done at trials the Racing Integrity Unit had some concerns about rogue behaviour of horses on race day but the same horses being compliant when sent back to the trials.
2.6 A number of horses were randomly selected for drug testing at the Otaki trials on 21st March 2013.
2.7 All samples from the Trial meeting were packaged in accordance with the Regulations and forwarded by courier to the Racing Laboratory where they were received on 26th March 2013 with all seals intact.
2.8 On the 4th April 2013 the Official Racing Analyst reported in writing that the sample from 2g CAPTAIN RIO - ITZA BEEL had tested positive to Phenylbutazone.
2.9 Phenylbutazone is a non-steroidal anti-inflammatory drug for the short-term treatment of pain. Oxphenbutazone is a metabolite of Phenylbutazone. In horses, and race horses in particular, Phenylbutazone is used for the following purposes: pain relief from infections and musculoskeletal disorders including sprains, overuse injuries, tendinitis, arthritis and laminitis. It acts directly on musculoskeletal tissue to control inflammation, therefore reducing secondary inflammatory damage, alleviating pain, and restoring range of motion.
2.10 Phenylbutazone is therefore a Prohibited Substance within the meaning of the Rules of Racing. The presence of Phenylbutazone in a race day sample is prima facia, a breach of the Rules.
2.11 Mr and Mrs Brown were interviewed at their property on the 10th April 2013. They were both shocked when first advised by the investigators of the positive swab. Mrs Brown then explained that they had been treating another 2 year old colt (2c FAST AND FAMOUS - MISS TIMMS) which had suffered a cut to a hind leg. They had been treating the horse by putting a sachet of “Bute” in the horse’s feed. She believed that the wrong feed may have been given to the horses by a stable employee who had worked for them for a short time as both horses are plain brown with no white markings. A written statement was taken from Mrs Thompson-Brown in the presence of Mr Brown.
2.12 Mrs Brown further stated that the CAPTAIN RIO - ITZA BEEL gelding had not been treated with Phenylbutazone in the previous two months. He had previously been treated with Bute when he was gelded over six months prior.
2.13 Mrs Brown was able to produce to the investigators a tube of Phenylbutazone that was stored in the stable gear room. There were no more sachets of the drug on the premises. Enquiries with the respondents Veterinarian revealed that Phenylbutazone sachets had been supplied in February 2013.
2.14 Whilst Mrs Thompson Brown and Mr Brown have administered the drug which is the source of the positive swab to the horse the informant accepts that the administration was an error and not done as a deliberate administration. For that reason both Mr and Mrs Brown have been charged with a breach of the Drug Negligence provisions in the rules rather than the more serious charge of a deliberate administration.
2.15 Mrs Thompson-Brown and Mr Brown were fully co-operative with the investigators conducting this enquiry.
2.16 Mrs Brown said while they did not know how the horse returned a positive they surmised that the feeds must have been mixed up. The Phenylbutazone was mixed in with the feeds which were labelled.
2.17 One of their other horses in an adjoining paddock (2C Fast and Famous-Miss Pimms) was being treated with Phenylbutazone. This horse and the Captain Rio-Itza Beel colt look very alike. They are both 2yr olds, plain brown and with no white markings.
2.18 At the time they had a young lad working for them who was responsible for putting the feed buckets in the paddocks in the mornings.
2.19 As the breach was admitted the Committee found the charge against Mrs Susan Jane Thompson-Brown and Mr Michael Peter Brown proved.
3. Penalty Submissions by Mr Bevege (Racing Integrity Unit)
3.1 When fixing penalty the informant respectfully submits that the respondents are entitled to credit for the following reasons:
3.2 They have accepted responsibility for the positive swab although they cannot fully understand how the horse returned the result.
3.3 They have admitted the offence at the first opportunity and have consented to the matter being determined on a race day, thus minimizing costs to the industry.
3.4 The substance detected has a legitimate therapeutic use in equine medicine and was properly prescribed, although not for this horse.
3.5 Both respondents have been involved in the Thoroughbred Industry for a number of years and have never been involved in any similar offence.
3.6 It is therefore the recommendation of the Informant that neither disqualification nor suspension is appropriate and that the matter can properly be disposed of by way of a fine.
3.7 In this regard as the positive was a result from a Trial Meeting, from an unnamed 2 year old, that was unplaced, and that no punters money was involved, no placings have to be altered, no stakes earnings are involved we seek a fine of $3000. This is half the amount normally sought from a race day swab.
3.8 Rule 804(8) provides for the mandatory disqualification of a horse presented to race when a prohibited substance has been detected. It is therefore submitted that the 2 year old “Captain Rio – Itza Beel” must be disqualified from heat six at the Trial Meeting held at Otaki Racecourse on 21st March 2013.
3.9 The Informant makes no submissions in relation to costs.
3.10 The committee asked Mr Bevege what penalty the RIU would be seeking if the mitigating factors he referred to in this case did not apply. He replied that the submissions would be the same i.e. the RIU would be seeking a fine of the same amount.
4. Penalty Submissions from Mr and Mrs Brown
4.1 Mr Brown referred to a previous charge involving a horse on race day returning a positive swab for the same drug, Phenylbutazone, where the trainer on that occasion was fined $6000.
4.2 Mr Brown said he believed that $3000 was too harsh a penalty. No punters money was involved, the horse did not win the trial and it was not up for sale.
4.3 He said they were small time trainers and struggling in the Racing Industry.
4.4 Mrs Brown said they had held a trainers licence for three years but had been in the industry for 30 years and had a clear record. They were “horrified” that this had occurred.
4.5 Mr Brown queried the submission put forward by Mr Bevege when he said the RIU would seek the same monetary penalty even in the event of a horse winning a trial.
4.6 Mr Brown submitted that the fact his horse ran last in the trial should be taken into account.
4.7 Mr and Mrs Brown were asked if they had any further submissions to put before the committee but said they were satisfied that everything had been covered.
sumissionsforpenalty:
reasonsforpenalty:
penalty:
5 Decision and Penalty
5.1 This committee has no precedent to follow. We are not aware of any other cases where a charge has been brought in respect to a positive drug test arising from a trials meeting in New Zealand.
5.2 Authorised trials are run under the “Regulations for Trials” (Third Appendix, New Zealand Rules of Racing). They are generally used to educate young horses and provide the opportunity to get horses of all ages fit and ready for race day. It is also accepted that many young horses are sold based on their ability shown at trials meetings.
5.3 Trials differ to race day in that there is no betting and no stake money on offer however where a horse puts in a good performance its saleability is enhanced.
5.4 The safety of horse and rider is the same regardless, and remains paramount.
5.5 It is imperative that, regardless of race day or trials meetings, all horses competing run free of prohibited substances.
5.6 The RIU submitted that a $3000 monetary penalty is appropriate, being half the amount sought from the same situation occurring at a race meeting. We believe that this an appropriate starting point.
5.7 We have identified a number of situations that we believe could be considered aggravating factors. These include, but are not limited to; a horse winning a trial, a horse under offer for sale, a horse testing positive to a drug that has no legitimate therapeutic use and deliberate administration of a drug.
5.8 In the Brown’s case we are satisfied that none of these factors apply.
5.9 We accept the mitigating factors identified by both parties which include: the Brown’s admission of the breach, their acceptance of responsibility and cooperation with the Racing Integrity Unit, and their clear record.
5.10 Any penalty however has to be of a sufficient level to ensure that trainers do not become complacent or assume that trials meetings are different to race meetings in regard to prohibited substance use.
5.11 Taking into account all the factors mentioned, including the financial position of Mr and Mrs Brown, we impose a monetary penalty of $2000.
5.12 As the hearing was held on race day we make no order for costs.
6 Rule 804(8)
6.1 Further we order the disqualification under the provisions of Rule 804(8) of the New Zealand Rules of Racing of the 2 year old unnamed Captain Rio – Itza Beel gelding from heat 6 at the trials meeting held at Otaki Racecourse on 21st March 2013.
N Moffatt and T Utikere
3 June 2013
hearing_type: Non-race day
Rules: 801(1) and 804(2)
Informant: Mr RP Bevege - Racing Integrity Unit Racecourse Inspector
JockeysandTrainer:
Otherperson:
PersonPresent:
Respondent: SJ Thompson-Brown ad MP Brown - Licensed Traines in partnership
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