Texas Tribune
San Antonio area leaders wrestle with race-based contracting
by By Andrea Drusch and Tracy Idell Hamilton, San Antonio Report, The Texas Tribune – 2024-06-11 17:28:01
SUMMARY: A national debate on affirmative action is impacting San Antonio's procurement industry. Conservative groups are driving lawsuits, aiming for Supreme Court rulings to dismantle race-based preferences. A San Antonio-based company, DigitalDesk Inc., sued Bexar County, alleging race and gender discrimination in federal grant distribution, but the case was dismissed. Despite the ruling, the threat of legal actions persists, affecting local policies. San Antonio, an early adopter of race-conscious contracting, saw significant success but is shifting focus due to potential legal challenges. Local leaders aim to support all small businesses amidst ongoing legal and economic pressures.
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A national political fight over affirmative action — including lawsuits filed systematically across the U.S. by conservative groups hoping to take the issue up to the Supreme Court — is quickly reshaping the procurement industry in one of the largest minority-majority cities in the country.
In September, San Antonio-based software company DigitalDesk Inc. sued Bexar County after it wasn't selected to receive a federal pandemic aid grant, alleging the company was placed at the bottom of the priority list because its owner, Greg Gomm, is white and male.
A judge dismissed the case last month, saying Gomm didn't have standing because he didn't file the required paperwork to be considered for the grant.
Despite that setback, “it's just a matter of time” before one of the cases makes it to the Supreme Court, Dan Lennington, a lawyer with the conservative Wisconsin Institute for Law & Liberty who is representing Gomm and plans to appeal the case, told the San Antonio Report.
“One of the long-term goals of our project is to dismantle all race-based preferences in the procurement industry or the contracting industry nationwide,” Lennington said.
Against that backdrop, the City of San Antonio has delayed action on updating its race-conscious scoring system for city contracts and is shifting focus toward a plan to help businesses regardless of race.
Meanwhile, Bexar County commissioned a study in 2021 that found that it had the justification to implement a race-conscious policy for small businesses, but delayed action to monitor the shifting judicial landscape. It has yet to implement such a policy.
Now, the threat of legal action from the right — combined with pressure from those who want existing race-conscious policies to stay in place — have complicated efforts to fairly disperse a rare influx of federal dollars locally.
The region is set to receive a bounty of federal money from the Biden Administration's infrastructure laws in the coming years, and local leaders are under pressure to make sure as many local businesses as possible share in the wealth in projects like the city's $2.5 billion airport redevelopment and VIA Metropolitan Transit's $750 million rapid bus lines.
Bexar County's distribution of federal pandemic relief to small businesses awarded preference based on race and gender, leading to the lawsuit.
The county and LiftFund, which administered the program, were able to convince a judge that Gomm didn't have standing to bring the lawsuit because he didn't provide the right tax forms.
But Neel Lane, a San Antonio lawyer known for championing civil rights causes who represented the county and LiftFund, said the practice of using race and gender in such a selection process isn't likely to survive today's judicial landscape.
Fair Contracting Coalition member Christopher Herring speaks at a meeting with small businesses in March.
Credit:
Brenda Bazán/San Antonio Report
“The Supreme Court opened the door for a flood of cases like this DigitalDesk” suit when it ruled last summer that colleges could no longer use race as a factor in admissions, he explained.
That decision established that race could no longer be used as a proxy for “disadvantaged” — something the conservative legal institute that's representing Gomm is now seeking to apply to all government programs.
“If [local governments] want to help businesses that are disadvantaged, they should help businesses that are disadvantaged,” said Lennington. Instead they “basically stereotype people based on race … presuming that everybody in a certain racial category deserves help.”
His group won a lawsuit in March that forced a federal agency created to help minority-owned businesses to open its doors to all races. A different conservative legal foundation is battling the City of Houston over its minority contracting program.
“There are now a host of organizations purporting to champion the rights of white people to challenge any attempt to address social and economic imbalances,” Lane said. “The Supreme Court took a sledgehammer to that body of law with just one ill-considered decision.”
‘Remove the training wheels'
San Antonio was an early adopter of race-conscious contracting, and one of the first cities in the country to put a program on the books to help more women and minority-owned businesses land government contracts in 1989.
By the city's own metrics, it has been a huge success.
In 2023, just over half of the city's contracts — worth about $330 million — went to 517 unique small, minority- and women-owned businesses, up 23% over the previous five-year time frame according to the program's annual report.
Though there's plenty of political appetite to expand on that progress, city leaders say the latest data indicates it's now time to move away from race- and gender-conscious points in the scoring matrix, specifically because they've worked.
The city conducts a disparity study every five years to comply with legal requirements that say it must prove “compelling interest” in maintaining these programs. According to the most recent one, white women- and Hispanic-owned businesses were performing so well they no longer need a finger on the scale.
Further, the city found that in recent contracts, 97% of those businesses that were awarded with race and gender points would have won their contracts without them.
“The data is going in the right direction,” said Mayor Ron Nirenberg. “At some point, by design and by legal requirement, we have to start taking the training wheels off.”
Not everyone agrees. Notably, the most recent disparity study found that businesses owned by African Americans, Asians and Native Americans were still underutilized.
“All of those victories are because of race-conscious [points],” said Christopher Herring, a member of the Fair Contracting Coalition, which represents minority-owned businesses fighting the changes.
A plan to vote on new contracting policies without race and gender points was pulled from the City Council's agenda in December amid concern that it was moving too swiftly away from a program that's helping historically disadvantaged groups.
“It sounds like we're taking our foot off the pedal and the race is still going on,” said Councilwoman Melissa Cabello Havrda (D6) at the time. “We're slowing down because we're afraid someone else is going to slow us down.”
Proponents of preserving race and gender points have found some supporters on the City Council, who have urged the city to be bold in the face of a potential legal onslaught.
San Antonio District 2 Council Member Jalen McKee-Rodriguez has said the city shouldn't remove race and gender preference points in contracting just because of the threat of legal action.
Credit:
Brenda Bazán/San Antonio Report
“I would much rather us do right and have a judge tell us that it's wrong,” said Councilman Jalen McKee-Rodriguez (D2). “We're always being sued, we're always going to be getting sued.”
A national focus on San Antonio
Landing a government contract can be life-changing for a small business.
With the federal government poised to spend north of a trillion of dollars on infrastructure projects, San Antonio was one of two cities chosen in 2022 for a national project by Drexel University's Nowak Metro Finance Lab focused on getting that money to Black- and Hispanic-owned businesses.
Given the uncertainty of the legal landscape, however, San Antonio elected to widen the focus to helping all small businesses.
“It's a different approach than contracting preference, per se,” said Assistant City Manager Alex Lopez, who oversees economic development. “But if we're looking for the outcome of growing businesses, this is absolutely another approach that we can take.”
While the pivot away from racial preferences upsets some businesses, people who've been working on this issue for decades in San Antonio agree that most of the hurdles small businesses face getting contracts happen long before the selection process.
For example, small businesses have trouble getting certifications they need to compete for contracts, and the agency responsible for certifying them has been underfunded and understaffed for years.
The city and county tapped former mayor Henry Cisneros, who oversaw development of the city's race-conscious contracting program in the late 1980s, to head up a group tasked with tearing down those barriers.
“It was a breakthrough then,” Cisneros said of the original race-conscious contracting program, but “this effort is much more comprehensive and has a better chance to enhance local economic development.”
Cisneros convened the top executives from more than a dozen public agencies in Bexar County, including public universities and utility companies, which spend billions of dollars with local businesses on goods and services each year.
The group plans to streamline and standardize its procurement procedures and create a physical office at UTSA where business owners can meet with experts to help them navigate the procurement process. Last month, its leaders also agreed to take over and pump money into the beleaguered certification agency.
While local governments try to thread the needle, Cisneros says that approach will allow decades of work to continue, “regardless of the current procurement policy debates.”
Disclosure: Institute for Economic Development – UTSA, LiftFund and Via Metropolitan Transit have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.
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The Texas Tribune is a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.
Texas Tribune
Gov. Abbott’s border wall will take around 30 years, $20B
by By Jasper Scherer, The Texas Tribune – 2024-07-03 05:00:00
SUMMARY: Governor Greg Abbott announced a state-funded border wall along Texas' Mexico border three years ago, resulting in 34 miles of steel bollards so far, at a cost of $25 million per mile. The fragmented wall faces challenges like securing land rights, with plans to cover 100 miles by 2026. Critics, including Democrats and some Republicans, argue the wall is costly and ineffective, while Abbott claims it helps combat illegal immigration. The project is part of Abbott's $11 billion border security initiative, but acquiring private land remains a significant hurdle. The wall's projected full completion could take 30 years and $20 billion.
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Three years after Gov. Greg Abbott announced Texas would take the extraordinary step of building a state-funded wall along the Mexico border, he has 34 miles of steel bollards to show for it.
That infrastructure — which has so far run up a price tag of some $25 million per mile — isn't yet a contiguous wall. It has gone up in bits and pieces spread across at least six counties on Texas' 1,254-mile southern border. Progress has been hampered by the state's struggles to secure land access, one of myriad challenges signaling a long and enormously expensive slog ahead for Abbott.
Nonetheless, state contractors have already propped up more wall mileage than former President Donald Trump's administration managed to build in Texas, and Abbott's wall project is plowing ahead at a quickened pace. State officials hope to erect a total of 100 miles by the end of 2026, at a rate of about half a mile per week. The governor frequently shares video of wall construction on social media and has credited the project with helping combat immigration flows. To date, though, steel barriers cover just 4% of the more than 800 miles identified by state officials as “in need of some kind of a barrier.” And at its current rate — assuming officials somehow persuade all private landowners along the way to turn their property over to the state — construction would take around 30 years and upwards of $20 billion to finish.
Under Abbott's direction, state lawmakers have approved more than $3 billion for the wall since 2021, making it one of the biggest items under the GOP governor's $11 billion border crackdown known as Operation Lone Star. The rest of the money is being used for items like flooding the border with state police and National Guard soldiers and transporting migrants to Democrat-controlled cities outside Texas, all of which Abbott and other Republicans say is needed to stem the historic number of migrants trying to enter the country.
Democrats and immigration advocates have cast the wall project as a taxpayer-funded pipe dream that will do nothing to address the root causes driving the immigration crisis. And they say the governor, in reviving what was once a hallmark of Trump's agenda, is using public money to boost his political stock.
Even some immigration-hawk Republicans are showing unease about the mounting costs of the wall.
“I am, too, concerned that we're spending a whole lot of money to give the appearance of doing something rather than taking the problem on to actually solve it, and until we do that, I don't expect to see much happen,” state Sen. Bob Hall, R-Edgewood, said last fall before voting in committee to spend another $1.5 billion in wall funding.
Abbott's office did not respond to a request for comment for this story.
Acquiring land
The construction pace has largely hinged on the state's success securing rights to build the wall through privately owned borderland. Early on, the project showed little signs of life as state contractors struggled to obtain the needed easements. But things picked up last year as the state began working out more agreements covering larger tracts. Through mid-June, officials had secured 79 easements covering about 59 miles of the border, according to Mike Novak, executive director of the Texas Facilities Commission, which is overseeing the effort.
At a facilities commission meeting last month, Novak said state officials were in various stages of negotiation with landowners over another 113 miles.
“We knew from the beginning that this was going to be the choke point, you know, one of the most challenging parts of this program,” Novak said of land acquisition. “And it proved true. But we've remained steadfast.”
Officials had built 33.5 miles of wall through June 14, a facilities commission spokesperson said.
The state's ability to secure land rights has also dictated the wall's location, though officials say they have focused on areas pinpointed by the Department of Public Safety as the “highest priority.” TFC officials have declined to share exactly where the wall is being built, citing security concerns, though Novak recently said construction was underway on wall segments in Cameron, Maverick, Starr, Val Verde, Webb and Zapata counties.
Though the Texas-Mexico border spans more than 1,200 miles, Abbott's budget director, Sarah Hicks, told a Senate panel in 2022 that DPS had identified 805 miles “as vulnerable, or [that] is in need of some kind of a barrier.” Another 180 miles are covered by natural barriers, mostly in the Big Bend region of West Texas, while existing barriers already cover another 140 miles, according to state officials.
Novak has said the pace of building about half a mile of wall per week is expected to continue for the “foreseeable future.” At that rate, about 100 miles would go up every four years, with the full 805 miles covered sometime after 2050, when Abbott would be in his 90s.
The earliest wall construction has cost roughly $25 million to $30 million per mile, according to TFC officials. That would amount to $20 billion to $24 billion for the entire 805-mile span, or about three times the cost of paying every Texas public university student's tuition last year. The estimate does not account for the cost of maintaining the wall once it is built, which TFC estimates will cost around $500,000 per mile each year.
Lubbock state Sen. Charles Perry, who last year carried Texas' new immigration law that allows state police to arrest people for illegally crossing the Mexico border, is another Republican who has expressed concern about the wall's cost.
“I am for border security. I am not against a wall. But to me, at least from what I can tell, it is a perpetual circle. We're on the hamster wheel,” Perry said last fall as he prepared to vote for the $1.5 billion wall funding bill. “[At some point] the response has not to be more money for infrastructure. At some point this state must draw the line in the sand.”
Still, no Texas Republican has voted against border wall funding. Lawmakers approved nearly $2.5 billion for the effort in the state's current two-year budget — more than was allotted in state funds to all but a handful of state agencies, and more than twice what Texas spends on its court and juvenile justice systems.
State Rep. Christina Morales, D-Houston, said she doesn't think Texas' GOP leadership “really understands why people are crossing in the first place.”
“Spending billions of dollars on a wall really does not address the root causes of the migration that's happening,” said Morales, who is vice chair of the House's Mexican American Legislative Caucus. “What we should be investing in is our education, our health care, real solutions for problems that are happening right now in Texas.”
Since 2021, federal officials have recorded an average of about 2 million illegal border crossings a year, a record that Abbott has attributed to President Joe Biden for rolling back some of Trump's border policies. The governor has touted the wall construction as a way for Texas to “address the border crisis while President Biden has sat idly by.” Biden and other Democrats have blamed Republicans for shooting down a sweeping bipartisan border deal earlier this year.
The scope of Texas' wall construction — and Abbott's broader border security efforts — are unprecedented in nature, as the federal government is generally responsible for immigration enforcement and the costs associated with it.
Even with the state's improved pace securing easements, Novak has said land access remains the biggest challenge for the project, and “it'll probably remain that way through most of the program.” The Trump administration encountered the same issue after the former president famously said he would build the wall and make Mexico pay for it. Even using the federal government's power to seize some borderland, Trump's administration built just 21 miles of new wall along the Texas-Mexico border.
The painstaking negotiations are required for Texas' wall because lawmakers barred the use of eminent domain to gain land access.
Last year, state Sen. Brandon Creighton, R-Conroe, filed legislation to change that, arguing TFC officials could only build a complete wall if they were authorized to use eminent domain powers. The proposal failed to make it through the Senate, though Creighton said he plans to file it again for the session that starts next January.
“Of course, we can continue to negotiate with ranchers, but that is a very slow process,” Creighton said. “And it's an incomplete process, because there will always be holdouts for different reasons.”
Creighton, one of the upper chamber's more conservative members, said he still supports using state funds to build a border wall, even as some of his GOP colleagues have raised objections.
“I say no to waste, inefficiencies, potential fraud and unreasonable spending as much as any member,” Creighton said. “But … there are times, with all of that fiscal conservatism, that we have to use the money that we save efficiently to protect Texans and Texas.”
“A difficult and complex task”
Most border wall advocates acknowledge barriers alone will not deter people from trying to enter the country illegally. But they say a wall would work if paired with more law enforcement officers and technology, arguing it would slow down attempted crossers to give border agents more time to apprehend them and encourage migrants to seek asylum via ports of entry.
But smuggling gangs have used ordinary power tools to saw through parts of Trump's wall and scaled it using disposable ladders. Some immigration experts say border walls fail to solve the underlying factors driving people to migrate, such as the poverty, violence and political upheaval in Central America, Haiti and Venezuela that is driving millions to flee and straining U.S. resources at the border.
“Walls do not achieve the objectives for which they are said to be erected; they have limited effects in stemming insurgencies and do not block unwanted [migrant] flows, but rather lead to a re-routing of migrants to other paths,” wrote Élisabeth Vallet of the nonpartisan Migration Policy Institute in a 2022 report.
Those sorts of objections have done nothing to deter Abbott and GOP lawmakers, who are armed with a huge budget surplus and polling that shows a majority of Texas voters support the state's wall effort and overall border spending. More than 90% of Republican voters support the wall, with 74% voicing “strong” support, according to an April poll by the Texas Politics Project.
With construction plunging ahead, Novak has projected confidence about the wall's status, pointing to the recent progress after an initial slow start, which saw officials build less than 2 miles in the 12 months after Abbott announced the effort.
It's not just land access that complicates wall construction, Novak said at the June TFC meeting, where he ticked off a list of other factors: changing soil conditions that require “complicated engineering solutions”; steering clear of irrigation systems when building on agricultural land; weather; and “sensitivity” to cattle, oil and gas and hunting operations.
“It's a difficult and complex task, at best,” Novak said. “But with that said, we're whipping it. The latest stats reflect what I like to call just steadfast progress.”
Just in: Former U.S. Rep. Liz Cheney, R-Wyoming; U.S. Sen. John Fetterman, D-Pennsylvania; and Oklahoma Gov. Kevin Stitt will take the stage at The Texas Tribune Festival, Sept. 5–7 in downtown Austin. Buy tickets today!
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The Texas Tribune is a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.
Texas Tribune
Biden administration proposes rule to prevent heat injuries
by By Asad Jung, The Texas Tribune – 2024-07-02 17:27:33
SUMMARY: The Biden-Harris administration proposed a rule to protect workers from extreme heat, following increased heat-related hazards for Texas employees like construction workers and cooks. The rule mandates employers to create plans preventing heat injuries, ensuring water access, rest breaks, and controlling indoor heat. Rep. Greg Casar, advocating for a federal heat standard, supports the proposal, anticipating its finalization by next summer. This rule follows Texas' HB 2127, which eliminated local ordinances for mandatory water breaks. Climate change has intensified heat in Texas, leading to record temperatures and deadly outcomes. At least 300 people died from heat in Texas last year, highlighting the need for protective measures.
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Above-normal high temperatures in recent summers have been outright dangerous for construction workers, kitchen cooks and other Texas employees who may be at risk for hazardous heat exposure.
But some relief may be on the way after the Biden-Harris administration announced a proposed rule Tuesday that aims to protect millions of workers from the risks of extreme heat.
The rule would require employers to develop a plan to prevent heat injuries and illnesses in workplaces and make sure their employees can access drinking water, get rest breaks and control indoor heat. It would apply to all employers conducting indoor or outdoor work in construction, agriculture and other sectors where the Occupational Safety and Health Administration has jurisdiction.
Before going into effect, OSHA must publish the proposal publicly and establish a period to collect public input.
“In many ways, this decades-long fight in Texas is helping expand workers' rights nationwide,” said U.S. Rep. Greg Casar, D-Austin, who has advocated for a federal workplace heat standard and rest and water breaks in Texas.
Casar led a thirst strike at the U.S. Capitol a year ago to draw attention to the issue. Casar hopes the Biden administration's proposed rule will be finalized by next summer.
The proposed federal requirements come a year after Texas legislators passed House Bill 2127, which barred cities and counties from passing local ordinances that go further than state law in several areas — from labor and finance to agriculture and natural resources.
HB 2127 eliminated ordinances in Austin and Dallas that established mandatory water breaks for construction workers. Supporters of the law said those kinds of ordinances bogged down businesses and created inconsistent standards across the state.
Climate change driven by humans burning fossil fuels is pushing temperatures higher in Texas. Last year was the hottest on record in the state. The state climatologist expects average temperatures and the number of triple-digit days will continue to rise.
Heat is deadly. It's known as a silent killer because its impacts are more nuanced than a tornado or a fire. But heat kills more people than any other type of weather, according to the Environmental Protection Agency. At least 300 people died in Texas last year from the heat, more than in any other year on record. Most of the deaths happened in populous metro regions, like Houston and Dallas Fort-Worth, as well as in border regions.
“We know that temperatures will continue to go up. So these protections need to be in place,” said Ana Gonzalez, deputy director of policy and politics at the Texas AFL-CIO.
Emily Foxhall contributed to this story.
Just in: Former U.S. Rep. Liz Cheney, R-Wyoming; U.S. Sen. John Fetterman, D-Pennsylvania; and Oklahoma Gov. Kevin Stitt will take the stage at The Texas Tribune Festival, Sept. 5–7 in downtown Austin. Buy tickets today!
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Texas Tribune
U.S. Supreme Court rejects Texas death row inmate’s petition
by By Pooja Salhotra, The Texas Tribune – 2024-07-02 14:51:35
SUMMARY: The U.S. Supreme Court has declined to review the murder case of Rodney Reed, who has maintained innocence for the 1996 murder of Stacey Stites. Convicted in 1998, Reed's guilt has been questioned with accusations aimed at Stites' fiancé, Jimmy Fennell. Although Texas halted Reed's execution in 2019 for further review, the courts denied a new trial. However, the Supreme Court allowed Reed to pursue DNA testing on crime scene evidence. Reed's attorneys continue to fight for justice, asserting his innocence. Meanwhile, Stites' family insists on Reed's guilt. Both Reed and Fennell have faced accusations of sexual assaults.
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The U.S. Supreme Court on Tuesday declined to give Rodney Reed the chance to have his murder case reviewed, delivering a blow to the death row inmate who has for more than a quarter century maintained that he is innocent of the 1996 murder of Stacey Stites.
Reed, a Black man, was convicted in 1998 of killing a 19-year-old white woman in the Central Texas town of Bastrop. For years, Reed's guilt has been questioned, with his supporters pointing blame at Stites' fiance, Jimmy Fennell.
In 2019, Texas' highest criminal court halted Reed's execution, sending the case back to the trial court for further review. But a district judge ruled against granting Reed a new trial in 2021, and two years later the state's highest criminal court also rejected Reed's claims of innocence.
Without offering any comment, the U.S. Supreme Court rejected Reed's petition for a writ of certiorari, which would have ordered the lower court to deliver the case records to the higher court for review.
The ruling does not mean that Reed's execution will immediately be scheduled. In another appeal, the U.S. Supreme Court last year sided with Reed, who is now 56, and cleared the way for his team to pursue DNA testing on crime scene evidence that his attorney's said could exonerate him.
The 5th U.S. Circuit Court of Appeals will hear oral arguments in that case in August, Reed's legal team said.
“[Reed] has litigation pending in several courts and his legal team is continuing to pursue all available avenues to secure his relief,” said Parker Rider-Longmaid, an attorney representing Reed. “Mr. Reed's legal fight to test key DNA evidence and prove his innocence is far from over.”
Reed's attorneys maintain that their client was sentenced to death for a crime he didn't commit. They say that Reed was having an affair with Stites and that the courts have not allowed for DNA testing of crucial evidence, including the belt used to strangle Stites.
Stites' sister, Debra Oliver, meanwhile, said that Reed is guilty and should accept responsibility for the crime.
“It is time to stop retraumatizing Stacey's loved ones for the benefit of activists and those seeking notoriety from this nightmare,” the statement said.
Oliver also said that Reed is guilty of raping her sister, who she says had no romantic relationship with Reed.
Both Reed and Stites' fiance have been accused of multiple sexual assaults. Reed was indicted in several rape cases. Fennell spent 10 years in prison after he kidnapped and allegedly raped a woman while on duty as a police officer in 2007.
Just in: Former U.S. Rep. Liz Cheney, R-Wyoming; U.S. Sen. John Fetterman, D-Pennsylvania; and Oklahoma Gov. Kevin Stitt will take the stage at The Texas Tribune Festival, Sept. 5–7 in downtown Austin. Buy tickets today!
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