Registering the Human Terrain a Valuation of Cadastre
by douglas batson
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The following is an excerpt from Registering the Human Terrain: a Valuation of Cadastre, a 170-page book published by National Defense Intelligence College Press in 2008. The book is in the public domain at http://www.ndic.edu/press/10279.htm
Summary: Land is often a significant factor in violent conflict and is also a critical element in peace-building in post-conflict situations. This paper examines how cadastral information (land and property records) can predict threats to regional stability and world peace. The discussion considers how causes of 21st century conflicts are land related: rapid urbanization, forced evictions, and lack of land tenure security---and introduces a new tool. Until now there has never been an internationally accepted standard or method for evaluating land administration systems. Significant inventiveness on the part of Lemmen, Augustinus, van Oosterom, and van der Molen has resulted in the Land Administration Domain Model (LADM). The LADM is compelling because it makes explicit the various types of land rights, restrictions, or responsibilities. It is flexible enough to record both Western-style, registered land rights and customary, informal socio-tenure relationships typical of the developing world. In a word, the LADM aspires to be a repository for land issues faced by civil-military Reconstruction and Stability personnel in post-conflict societies. It merits close attention by NATO, the U.S. State and Defense Departments, and USAID because it represents an important tool for facilitating land administration in countries where it has been weak or totally absent.
From Hard Power to Soft Power
With increasing frequency, the first responders to post-disaster and post-conflict crises are the U.S. and allied armed forces. In 1997 former U.S. Marine Corps Commandant Charles Krulak coined the term “three-block war” to describe three missions: combat, peace enforcement, and humanitarian, that the U.S. military could be expected to execute within a three-block radius of a given urban center. Lieutenant Colonel Steven Fleming, professor of geography at the U.S. Military Academy, relates that resolving land conflicts is indispensable for operations other than war, so that for two of the three missions of the three-block war concept land administration is important. This is a striking contrast with wars of bygone eras. Even in the recent fighting in Iraq, Fleming notes that “From a military position, warfighting, e.g., ‘the March to Baghdad,’ does not concern itself much with land ownership. However, post-conflict nation-building and reconstruction inherently involve mass movements of people. Therefore knowledge of land ownership is central to the success of those missions” (Fleming, 2007). For military or civilian responders, early assessment of the state of post-conflict land records, land institutions, and land problems is an integral part of restoring peace and stability. Round-the-clock food, water, medical, shelter and emergency aid distribution often eclipse the need to conduct these assessments. A lack of public clamor about land issues invites further postponements. Citing his experience in Liberia, John Unruh cautions Reconstruction and Stability (R&S) practitioners not to be fooled: in postwar countries a surge of land tenure problems tend to surface three to five years after the fighting ceases. “This is because in the immediate postwar lull, people are upgrading livelihoods in rudimentary ways. But, at about three to five years, continued upgrading needs a property rights system and it is then that the problems emerge. While social unrest connected to land and property issues is unlikely while UNMIL [United Nations Mission in Liberia] has a large presence in the country, at some point the peacekeeping forces will be stepped down and the rule of law needs to step up” (Unruh, 2007). Naturally, the ideal time to head off a post-conflict land crisis, as occurred in East Timor, is to anticipate it and, soon upon arrival in a country, develop a cadastral framework, years in advance of the inevitable problems.
While military forces are often the first responders to world crises, most would gladly limit their role to providing security so that other entities can execute their own vital missions. In a perfect world, NGOs deliver humanitarian aid; intergovernmental bodies such as the UNHCR resettle refugees. It may seem that involvement in local land matters, something normally relegated to civilian agencies, is not in the interest of the military. But in reality, the military’s involvement in recording early land disputes enhances, not hinders, its military mission. Joseph Nye, former Chair of the U.S. National Intelligence Council, and Deputy Under Secretary of State for Security Assistance, Science and Technology, coined the term “soft power” as the ability to get what you want through attraction rather than coercion (Nye, 2004). Nye lamented that in only in academic circles, and in Europe, but not in the United States has soft power entered into political debate, and that the global attractiveness of the U.S. has been squandered by a singular hard power approach to foreign policy (Nye, 2006). “The imposition of law and order to generate regional stability, development, peace, and effective sovereignty,” (Manwaring, 2006) in other words, a commitment to win the peace as much as to win the war will require aiding other countries to build land information systems and the human resources capacity to maintain them. Where a cadastral system is in use, rule of law is evident, and, according to International Federation of Surveyors (FIG) President Stig Enemark, “the system acts as the backbone of society” (ITC, 2005). This change is optimal to the projection of U.S. soft power.
To meet these future challenges, Dr. Max Manwaring of the U.S. Army Strategic Studies Institute theorizes that a national, executive-level, management structure, and an international coordinating entity are essential for ensuring vertical and horizontal unity of effort.
Dealing with these kinds of national and global threats involves the entire population of affected countries, as well as large numbers of civilian and military national and international governmental and nongovernmental organizations and agencies—and sub-national, indigenous actors. As a result, a viable unity of effort is required to coordinate the many multidimensional, multi-organizational, and multilateral/multinational activities necessary to play in a given security arena (Manwaring, 2006).
The Pentagon has already anticipated this new role, by incorporating stability operations into the war colleges' curricula, thereby preparing regional combatant commanders for their expanded role. Some Western nations are increasing the allocation and training of military forces for peacekeeping, peace enforcement, and stability, known collectively as “military operations other than war.” Canada, for example, has implemented a Defense, Development, and Diplomacy (3D) approach “in developing a new external conflict and internal catastrophe/disaster paradigm in which traditional military and police organizations continue to play major roles, but are closely coordinated with all the other instruments of power under the control of the civil authority. The 3-D concept is rapidly growing into a broader and more effective strategic whole-of-government and grand-strategy whole-of-alliance paradigm” (Manwaring, 2006).
Civil-Military Cooperation in Reconstruction and Stability
These new initiatives in the military emphasize collaboration with relief and development organizations. Recent post-conflict scenarios have at times forced military forces to assume the unconventional roles of humanitarian aid providers and nation-builders. Although the military is there, ready and able to assist, these roles ultimately are best served by neutral civilians. Military and civilian organizations must learn how to cooperate, especially how to affect the transfer of the military’s short-term responsibilities to civilian specialists. Ideally, this hand-off would occur a month or two following the end of hostilities, and the military would play a supporting role until its presence is no longer required. In recent operations a smooth transfer of those responsibilities has been difficult to achieve.
To understand why the military-to-civilian hand-off of nation building tasks is problematic, consider the experience of Deborah Alexander. In spring 2002, USAID sent Alexander to Afghanistan to build relations with the U.S. military and prepare the way for agency experts to aid in that country's reconstruction. “Alexander would land at a clandestine airfield and then hitch a ride with a passing United Nations convoy to get to a military base. Once there, she would find the civil-affairs unit: ‘Hi, I'm from the government and I'm here to help.’ Civil-affairs soldiers were always happy to see her, even if they didn't know she was coming, and they would quickly brief her on the local water, agricultural, and health challenges. She made friends and learned about the needs to be filled by the USAID experts -- who arrived 18 months later” (Hegland, 2007). Alexander explains:
It takes a while to get them recruited, trained, and out there. Unlike the military, neither USAID nor State has a standing reserve of civilian experts ready to deploy. They can send a few people quickly, but for such substantial operations as those in Afghanistan or Iraq, both have to recruit staff, write and sign contracts, and conduct training -- a time-consuming process for which the situation on the ground can't wait. In an ideal world, the military would be a supporting partner to a broader civilian-led operation. But that's challenged by the very real fact that the civilian agencies are under-resourced. Even if they started building capacity today, it would still take a long time. As a result, in the short term, the burden falls on the military (Hegland, 2007).
Clearly, transition and cooperation need to be better coordinated. The U.S. Congress is now pursuing reforms that would better integrate the departments of Defense and State and the U.S. Agency for International Development. First, the National Security Presidential Directive (NSPD) 44, issued in December 2005, promotes the security of the United States through improved coordination, planning, and implementation of reconstruction and stabilization assistance for foreign states and regions of, in, or in transition from, conflict or civil strife. NSPD-44 provides some much-needed vitality to the newly created State Department Office of the Coordinator for Reconstruction and Stabilization (S/CRS). Regarding policy, NSPD-44 states that “the United States should work with other countries and organizations to anticipate state failure, avoid it whenever possible, and respond quickly and effectively when necessary and appropriate to promote peace, security, development, democratic practices, market economies, and the rule of law” (The White House, 2005).
Cadastres Aiding Post-Conflict Afghanistan
Little assistance in settling land disputes and registering rights and interests in lands is forthcoming from the Afghan national government, and even less from the meagerly resourced provincial and district governments of that country. Thus, moving beyond the morass requires initiative at the community level. Nearly all Afghan pastureland, while State-owned, is customarily managed by families, clans, or tribes, and not by private owners. These parties, settled agricultural families and also nomads, raise livestock and gather fuel and medicinal herbs on semi-arid pastures. The locally devised agreements about who has rights to these lands for what purposes during what time of the year have never been recorded.
Most rural families, and also many urban ones, do not use the formal, court-prepared title deeds to document property transactions. Yet the lack of court-prepared documents does not leave Afghans who conduct business informally without any form of tenure security. Customary arrangements, even verbal agreements, witnessed by family members and respected elders have sufficed for centuries because most dealings are inheritance matters and intra-family or intra-tribal agreements. Non-related persons privately draft documents, again witnessed by locally respected people, which are retained by the parties to the transaction without the involvement of any government official (Stanfield, 2007).
In response to increasing insecurity of tenure on Afghan rangelands, which occurred only in recent post-conflict years, a RLAP team—funded by the Asian Development Bank and the U.K. Department for International Development (ADB/DfID) and administered through the auspices of Afghanistan’s Ministry of Agriculture, Irrigation and Livestock—has created a community-based initiative to produce and record community agreements about who has the legitimate rights to use pasture lands for particular purposes during specific times of the year. Local land stakeholders agree in writing on the legitimate uses and users of pasturelands, delineate boundaries using satellite imagery, and develop plans for improving productivity of defined parcels of rangeland. Following the customary signing and witnessing by village elders, often including local leaders known as maliks, the documents are archived in the village with copies sent to government land institutions. There is trust in this system for several reasons: 1) because local leaders have indicated their concurrence with the agreements, 2) the documents describing legitimate use rights are kept in village archives; 3) the agreements are facilitated by the efforts of educated maliks to represent the local people in court disputes or in dealings with government agencies and other outside organizations.
The RLAP initiative has summarized the tested procedures for producing the rangeland agreements with the acronym A-D-A-M-A P (Stanfield, 2007):
Ask for community cooperation
Delineate the boundaries of rangeland parcels
Agreements are prepared concerning the legitimate users of the rangeland parcels
Meet, discuss and approve the agreements and delineations
Archive the agreements and delineated images
Plan for the improvement of the rangeland parcels
There have been discussions of expanding RLAP’s rangeland agreements into a national effort. Their method has resulted in increased security of tenure and a decrease in rangeland disputes. Village leaders may desire a similar approach to council-supervised identification of private agricultural lands. Satellite imagery identifies parcel boundaries; forms noting ownership and other rights to the parcels are prepared, signed, witnessed, and retained by the village councils (shuras or jirgas) with copies sent to provincial government agencies.
Nomadic peoples have serious problems with access to land for feeding and watering their flocks. Traditional seasonal migration routes are often interrupted in Afghanistan by local militia commanders trying to stop nomads from traveling their traditional routes to and from mountain pastures in the summer. To counteract these demands with evidence of long term traditional easements, steps are being taken by the nomads to document those routes. GPS information facilitates the negotiations of agreements with villagers for rights of passage (Stanfield, 2007). Concerning the pasturelands experience and the incremental step to extend the method to agricultural lands with ADAMAP, Stanfield concludes:
The legitimization of rights to pasture lands, a potentially very complicated process, shows that community definition of such rights is entirely feasible and normally quickly accomplished. Moreover, villagers are quite willing to keep those records and commit to updating the agreements when the conditions change requiring changes in the written agreements. Taking that experience another step and applying the same principles of community legitimization of property rights to agricultural land showed that the generation of property records at the community level is not only feasible but that village elders are organizing to do the work themselves, using the satellite imagery provided to them (Stanfield, 2007).
Advances in Land Administration in Afghanistan
Community-based creation and maintenance of land rights records is a bottom-up response to weak State institutions. Centralized land-governing institutions in particular have not enjoyed public confidence. With participative, transparent, and observable processes of community recording of locally derived agreements about the legitimate users of rangeland, the RLAP team substantially support the words of Alden Wily: “Democratization of land administration and management should be an objective of all countries… the more accessible, useable and used, cheaper, speedier and generally more efficient the system will be” (Alden-Wiley, 2003).
Community-based mapping in rural Afghanistan needs all the help it can get. To this end a valuable resource, eclipsed by a quarter century of conflict, exists intact. While conducting research in Kabul the author visited the Afghan Geodesy and Cartography Head Office (AGCHO) and met Engineer (Eng.) M. Yasin Safar, a retired chief of the AGCHO cadastral department. Eng. Safar informed the author that between 1965 and 1978, one-third of Afghan agricultural lands, 12.9 million jerib (a traditional unit of land that equals 1/5 hectare, 2000 square meters, or 0.494 acre), were professionally surveyed by the Cadastral Survey. This enormous undertaking, covering 25,800 square kilometers, nearly the size of Rwanda, was not used in a land registration system or in issuance of formal titles. Cadastral surveyors compiled names of probable parcel owners to dispel any notion that they were also official government title adjudicators. Despite their age today, these painstakingly assembled graphical and textual records survived the wars and could contribute to a future land administration system. Owners and occupants certainly have changed, but not so for most the parcel boundaries as there have been few subdivisions and consolidations, at least in the study village.
Eng. Safar suggests a three-level strategy for establishing a modern land administration system in Afghanistan. (Safar, 2007)
1. Improve the technical capacity for mapping property
2. Decentralize the Property Records Administration
3. Build a national technical and financial property information infrastructure to support this local property information administrative infrastructure
Eng. Safar presents favorably the pilot project ideas of recording and archiving property transaction documents at the village level, with elders supervising and verifying record updates and maintenance. He suggests that if done properly the documents so recorded will be given a preferential legal status by local judges in claims presented to them, over claims without such documents (Safar, 2007).
Land Policy in Afghanistan
Dr. Yohannes Gebremedhin, formerly USAID/Land Titling and Economic Restructuring of Afghanistan (LTERA), Land Titling/Legal Team Leader, and now advisor to the Afghan Ministry of Agriculture, has advised a Land Working group in preparing a draft national land policy approved by the entire Afghan cabinet, which would enable the following urban land conditions to be addressed with an overarching strategy (Gebremedhin, 2006) (at this writing the policy has been approved by three line ministries and by the Economic Commission of the Cabinet):
1. Residents living in informal settlements do not hold registered title. Property in informal settlements may have been acquired by squatter settlements built on public lands; settlements built on privately owned land; settlements built on grabbed land or land bought from land grabbers. In order for residents in informal settlements to obtain formal deeds the legal issues surrounding the mode of land acquisition must be clarified.
2. Many properties are occupied on the basis of customary (informal) deeds; others are based upon multiple claims. The existing registration process is also an adjudication process. Afghanistan needs a separate coherent land registration law. It also needs a land adjudication law that establishes a process by which claims of interests over land are evaluated, conflicting claims resolved and customary settlements recognized.
3. In addition, and critical to the registration process is the necessity to clarify the legal authority for land mapping, surveying and related activities in Afghanistan. Improvement of land tenure security is an essential element to peace building in Afghanistan.
4. Land grabbing, particularly in urban areas, has given rise to an extensive informal real estate market. Individuals have appropriated, sub-divided, and distributed public land using the informal market. The ease with which informal land transactions take place discourages formalization of property titles and makes provision of services in urban areas very difficult and complicated for the municipality.
5. The excessive judicial and administrative steps and archaic modes of operation which exist in the system of transfer of real property rights are cumbersome, inefficient and often riddled with corruption. The real property transfer tax, coupled with the unavoidable illegal fees (bribes) at every step in the process, is sufficiently onerous as to discourage legally recognized title registration. More often than not, individuals resort to only using the informal system.
The adoption of a national land policy would establish the foundation for a desperately needed National Land Administration Agency, distinct from the entity now administering rural land records and State-owned lands. Resting on the national land policy, a consolidated Land Administrative System could formalize land tenure, integrate formal and informal processes to register property freely, and link cadastral with other maps to create a parcel-based cadastre. Such lofty goals in a stable and well-resourced environment would take years to achieve; in Afghanistan two decades at a minimum, even assuming that the insurgency completely disappears. Like any mammoth undertaking, the way forward is by incremental steps.
A USAID Project Makes Progress
The Land Titling and Economic Restructuring of Afghanistan (LTERA), USAID-funded and implemented by Emerging Markets Group (EMG), has presented a five-prong integrated approach to land titling and economic restructuring efforts (Gebremedhin, 2006):
• Land Registration System
• Mapping and Land Information System
• Tenure Regularization
• Policy and Legal Framework
• Release of Public Land
The project has done important work in rehabilitating and re-organizing deeds in Provincial Court archives, although little progress has been made in simplifying land titling procedures, or clarifying the property rights legal framework, reducing the cost of transactions or re-organizing land administration agencies. A complete listing of LTERA projects in Afghanistan is at www.ltera.org. But one LTERA project is worth mentioning: the upgrading of informal settlements in two districts of Kabul.
LTERA selected two Community Development Councils (CDCs) that were established by UN-HABITAT in two gozars (neighborhoods) in Districts 7 and 13. This decision was based, in part, because the community had already established representative bodies (shuras) and both residents and the municipality were willing to participate in the program. Although the shuras had been involved in previous upgrading projects, the issue of tenure security had not been addressed prior to the LTERA project’s program. In District 13, newly established land clarification boards review property deeds presented by the informal settlers. Ninety-five percent of these are informal, customary deeds. Disputes settled at the community level avoid the bureaucratic and uncertain procedures of the Kabul courts. Once community consensus is reached about who lives, or has the right to live, where, LTERA requests a municipality to issue a "certificate of comfort." While not a property deed, it is a valuable form of tenure security (LTERA, 2007).
Out of this pilot effort to formalize informal settlements, LTERA has developed preliminary proposals to create a legal basis for regularizing tenure in other such contexts. The team has developed a replicable and cost-effective methodology that upgrades basic services, regularizes tenure, and formally integrates informal settlements into the municipality’s urban planning process. The projects in Districts 7 and 13 are testing an incremental, community-based method of upgrading and tenure regularization. These neighborhoods were chosen because their problems were obvious. Informal settlers lived in fear of forced eviction and therefore had no incentive to improve their dwellings, start businesses, or upgrade their neighborhoods. An LTERA employee informed the author:
We estimate that in Districts 7 and 13, the implementation of the 1978 Kabul Master Plan would result in evicting 2000 households (about 14,000 people). We are preparing a land use plan for the Districts. The plan contains alternative land development options which better reflect current land patterns, provide residents access to basic services, and considerably minimize the number of evictions. Once approved by the municipality, it will halt forced evictions (LTERA, 2007).
A 2006 preliminary study of the LTERA project in District 7, was conducted by an Afghan NGO well-versed in the techniques and philosophy of community action planning, the Cooperation for the Reconstruction of Afghanistan (CRA). CRA identified the possibility of improved tenure security in terms of increased business activity and housing construction, especially where improvement in security of tenure was accompanied by community organization and the physical upgrading of the District’s streets and drainage systems. Interviews with community leaders and residents also showed that people’s perception of tenure security and general community conditions have improved significantly since the implementation of the project. In summary, the work done by community thanks largely to the organizational and guiding efforts of CRA and the financial support from USAID/EMG (LTERA, 2007).
More construction: 46 houses have either been reconstructed or extended in the pilot area since the implementation of the project. This represents 9% of all houses in the area. All but one of these houses are constructed of brick and concrete, a substantially greater investment than the usual mud construction.
More Businesses: The number of business activities has increased from 117 to 126, an increase of 7% since the last survey was undertaken ten months previously, in November 2005.
Increased Prices of Vacant Land: Although house prices appear to have stabilized and, in some instances, decreased in value, the price of vacant land has increased by as much as 50% since the project was implemented. There are fewer houses on the market than before the project started. There are fewer properties for rent and rentals have increased by an average of 30% during the last year.
More Tenure Security: All 30 residents were interviewed regarding their knowledge and understanding of the LTERA upgrading effort. All but one felt more secure as a result of the project and believed that the area would eventually be formally incorporated into the City Plan. Three respondents noted that the mere fact that roads and drains had been constructed had resulted in improved perceptions of secure tenure.
The shura and community leaders involved with the property adjudication process reiterated their support for the project and confirmed that it had resulted in improved perceptions of security and increased economic activity. Lessening fear of the forced eviction bulldozer, resolving disputes, demarcating plots, providing funds for community infrastructure upgrading, actually enabling community development; each success, no matter how small, builds upon the other to provide security of tenure and upgrading of the settlement.
The post-Cold War period has been marked by few U.S. foreign policy, and fewer post-conflict nation-building, successes. Keeping the peace in post-conflict areas requires many forms of action; one very specific action is a focus on land tenure and property rights. This focus would, possibly more than any other kind of U.S. foreign aid, transform a volatile state into a capable one. Capable, that is, of maintaining stability by resisting and deterring the violent extremism of non-state actors through the strength of its civil society. The infusion of technical assistance in the U.S.-Afghan Mapping Initiative is an example of how a developing nation government’s capacity to register its peoples’ land and property interests might be improved. A Basic Education and Cooperative Agreement, signed in June 2007, between the National Geospatial-Intelligence Agency (NGA) and the Afghan Geodetic and Cartographic Head Office (AGCHO), which has a cadastral division, outlines how NGA will provide hardware and technical assistance to AGCHO: training in using geographic systems information (GIS) software, archiving geospatial data, standardizing geographic names, creating boundary databases, and in geodetic surveying and management topics.
A land registration system, with its dispute resolution component, can prevent or lessen conflict by bringing simmering land and property disputes into the public forum and recording the resulting local adjudications. "A good cadastre will be the greatest achievement in my civil code," said Napoleon, who 200 years ago wanted an end to costly and useless trials to resolve land disputes between neighbors. Napoleon sought to create a universal type of property right; its perennial representation would eliminate boundary disputes and facilitate uniform taxation. Cadastres, along with security of tenure, land policy, dispute resolution, are key tools in efforts to restore sound land administration to post-conflict nations….and the Pentagon is taking notice.
Fleming, S., 2007, interview by the author, 10 August 2007.
Unruh, J., 2007, Postwar Land Tenure in Liberia: Lessons Learned from Other Post-Conflict Countries, p. 3.
Nye, J.S., 2004, Soft Power: The Means to Success in World Politics, 1st ed. New York: Public Affairs, p. x.
Nye, J.S., 2006, “After Rumsfeld, a Good Time to Focus on Soft Power,” Daily Star (Beirut, Lebanon), 11 November.
Manwaring, M.G., 2006, “Defense, Development, and Diplomacy (3D): Canadian and U.S. Military Perspectives,” paper presented at the Defense, Development, and Diplomacy (3D): Canadian and U.S. Military Perspectives, 21-23 June (Kingston, Ontario, Canada), p. 3.
ITC, 2005. International Institute for Geo-Information Science and Earth Observation ITC, "Land Administration: The Path Towards Tenure Security, Poverty Alleviation and Sustainable Development," paper presented at the ITC Lunstrum Conference: Spatial Information for Civil Society, 14-16 December (Enschede, The Netherlands), p.17.
Hegland, C., 2007, “Pentagon, State Struggle to Define Nation-Building Roles,” Government Executive, 30 April.
The White House, 2005. NSPD-44 Management of Interagency Efforts Concerning Reconstruction and Stability
Stanfield, J.D., 2007, "Community Recording of Property Rights: Focus on Afghanistan."
Paper presented to the International Association of Clerks, Recorders, Election Officials and Treasurers (IACREOT) 2007 Annual Conference and Trade Show, 19 July. Charlotte, North Carolina.
Alden-Wiley, L., 2003. Governance and Land Relations: A Review of Decentralisation of Land Administration and Management in Africa. London: International Institute for Environment and Development (IIED).
Safar, M.Y., 2007, personal interview 10 March.
Gebremedhin, Y., 2006, Legal Issues Pertaining to Land Titling and Registration in Afghanistan, prepared by Land Titling and Economic Restructuring in Afghanistan (LTERA) Project for USAID Review (Kabul, Afghanistan), p. 12.
LTERA, 2007. "Providing Land Tenure Security in Afghanistan." Land Titling and Economic Restructuring of Afghanistan, www.ltera.org/USAID_LTERA_LAND_TENURE.html#Teaming_Up_With_the_World_Bank_KURP_Program_>.
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