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The Conservation (Natural Habitats, etc.) Regulations (Northern Ireland) 1995

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PART IICONSERVATION OF NATURAL HABITATS AND HABITATS OF SPECIES

European sites

Selection of sites eligible for identification as of Community importance

6.—(1) On the basis of the criteria set out in Annex III (Stage 1) to the Habitats Directive, and relevant scientific information, the Department shall propose a list of sites indicating with respect to each site—

(a)which natural habitat types in Annex I to the Directive the site hosts, and

(b)which species in Annex II to the Directive that are native to Northern Ireland the site hosts.

(2) For animal species ranging over wide areas these sites shall correspond to the places within the natural range of such species which present the physical or biological factors essential to their life and reproduction.

For aquatic species which range over wide areas, such sites shall be proposed only where there is a clearly identifiable area representing the physical and biological factors essential to their life and reproduction.

(3) Where appropriate the Department may propose modification of the list in the light of the results of the surveillance referred to in Article 11 of the Habitats Directive.

(4) The list shall be transmitted to the European Commission together with information on each site including—

(a)a map of the site,

(b)its name, location and extent, and

(c)the data resulting from the application of the criteria specified in Annex III (Stage 1),

provided in a format established by the Commission.

Adoption of list of sites: designation of special areas of conservation

7.—(1) Once a site of Community importance in Northern Ireland has been adopted in accordance with the procedure laid down in paragraph 2 of Article 4 of the Habitats Directive, the Department shall designate that site as a special area of conservation as soon as possible and within six years at most.

(2) The Department shall establish priorities for the designation of sites in the light of—

(a)the importance of the sites for the maintenance or restoration at a favourable conservation status of—

(i)a natural habitat type in Annex I to the Habitats Directive, or

(ii)a species in Annex II to the Directive,

and for the coherence of Natura 2000; and

(b)the threats of degradation or destruction to which those sites are exposed.

(3) In this regulation in relation to European marine sites for the words “the Department” where they occur substitute “the Secretary of State”.

Consultation as to inclusion of site omitted from the list

8.  If consultation is initiated by the European Commission in accordance with Article 5(1) of the Habitats Directive with respect to a site in Northern Ireland hosting a priority natural habitat type or priority species and—

(a)the Department agrees that the site should be added to the list transmitted in accordance with regulation 6, or

(b)the Council, acting on a proposal from the Commission in pursuance of paragraph 2 of Article 5 of the Habitats Directive, so decides,

the site shall be treated as added to the list as from the date of that agreement or decision.

Meaning ofEuropean sitein these Regulations

9.—(1) In these Regulations a “European site” means—

(a)a special area of conservation,

(b)a site of Community importance which has been placed on the list referred to in the third sub-paragraph of Article 4(2) of the Habitats Directive,

(c)a site hosting a priority natural habitat type or priority species in respect of which consultation has been initiated under Article 5(1) of the Habitats Directive, during the consultation period or pending a decision of the Council under Article 5(3), or

(d)an area classified pursuant to Article 4(1) or (2) of the Wild Birds Directive.

(2) Sites which are European sites by virtue only of paragraph 1(c) are not within regulations 17 and 43 (which relate to the approval of certain plans and projects); but this is without prejudice to their protection under other provisions of these Regulations.

Register of European sites

Duty to compile and maintain a register of European sites

10.—(1) The Department shall compile and maintain in such form as it thinks fit, a register of European sites in Northern Ireland.

(2) The Department shall include in the register—

(a)special areas of conservation as soon as they are designated;

(b)sites of Community importance as soon as they are placed on the list referred to in the third sub-paragraph of Article 4(2) of the Habitats Directive, until they are designated as special areas of conservation;

(c)any site hosting a priority natural habitat type or priority species in respect of which consultation is initiated under Article 5(1) of the Habitats Directive, during the consultation period or pending a Council decision under Article 5(3); and

(d)an area classified by the Department pursuant to Article 4(1) or (2) of the Wild Birds Directive, as soon as they are so classified or, if they have been classified before the commencement of these Regulations as soon as practicable after commencement.

(3) The Department may, if appropriate, amend the entry in the register relating to a European site.

(4) The Department shall remove the relevant entry—

(a)if a special area of conservation is declassified by the European Commission under Article 9 of the Habitats Directive; or

(b)if a site otherwise ceases to fall within any of the categories listed in paragraph (2).

(5) A copy of the register shall be available for inspection by the public at all reasonable hours and free of charge.

Notice to landowners, district councils, etc.

11.—(1) The Department shall as soon as practicable after including a site in the register, amending an entry in the register or removing an entry from the register, give notice of that fact to—

(a)every owner and occupier of land within the site,

(b)each district council in whose district the site or any part of it is situated, and

(c)such other persons or bodies as the Department thinks fit.

(2) Notice of the inclusion of a site in the register, or the amendment of an entry in the register, shall be accompanied by a copy of so much of the relevant register entry as relates to land owned or occupied by or, as the case may be, to land within the area of, the person or district council to whom the notice is given.

Entry in Statutory Charges Register

12.  An entry in the register relating to a European site in Northern Ireland shall be included among the matters which are required to be registered in the Statutory Charges Register.

Management agreements

Management agreements

13.—(1) The Department may enter into an agreement (a “management agreement”) with any person having an estate in any land forming part of a European site, or land adjacent to such a site, for the management, conservation, restoration or protection of the site, or any part of it.

(2) A management agreement may impose such restrictions as may be expedient on the exercise of rights over the land by persons who can be bound by the agreement.

(3) A management agreement—

(a)may provide for the management of the land in such manner, the carrying out thereon of such work and the doing thereon of such other things as may be expedient for the purposes of the agreement;

(b)may provide for any of the matters mentioned in sub-paragraph (a) being carried out, or for the cost thereof being defrayed, either by the said owner or other persons, or by the Department, or partly in one way and partly in another;

(c)may contain such other provisions as to the making of payments by the Department, and, in particular, for the payment by it of compensation for the effect of the restrictions mentioned in paragraph (2), as may be specified in the agreement.

(4) Where a person having an estate in any land, by such a management agreement grants or agrees to grant any right as respects the land, the grant or agreement shall be binding upon any person deriving title or otherwise claiming under the grantor to the same extent as it is binding upon the grantor notwithstanding that it would not have been binding upon that person apart from this paragraph.

(5) A management agreement may be made irrevocably or subject to such provisions for revocation or variation as may be specified in the agreement.

(6) The Department may waive (either permanently or temporarily) any condition imposed by a management agreement which is inconsistent with any provision of a development order under the 1991 Order.

(7) A management agreement shall be included among the matters which are required to be registered in the Statutory Charges Register.

Continuation in force of existing agreements, etc.

14.—(1) Any agreement previously entered into—

(a)under Article 17 of the Nature Conservation and Amenity Lands (Northern Ireland) Order 1985(1) (nature reserves), or

(b)under Article 24(8) of that Order (areas of special scientific interest),

in relation to land which, on or after the commencement of these Regulations becomes land within a European site, or adjacent to such a site, shall have effect as if entered into under regulation 13.

(2) Any other thing done or deemed to have been done under any provision of Part V, Part VI or Part VIII of the Nature Conservation and Amenity Lands (Northern Ireland) Order 1985, in respect of any land prior to that land becoming land within a European site or adjacent to such a site, shall continue to have effect as if done under the corresponding provision of these Regulations.

(3) Any reference in any outlying enactment to a nature reserve within the meaning of Article 2(2) of the Nature Conservation and Amenity Lands (Northern Ireland) Order 1985 shall be construed as including a European site.

For this purpose “outlying enactment” means an enactment not contained in, or in an instrument made under, the Nature Conservation and Amenity Lands (Northern Ireland) Order 1985.

Control of potentially damaging operations

Declaration of potentially damaging operations

15.—(1) Any declaration in force in relation to a European site under Article 24 of the Nature Conservation and Amenity Lands (Northern Ireland) Order 1985 (declaration of areas of special scientific interest) specifying—

(a)the flora, fauna or geological, physiographical or other features by reason of which the land is of special scientific interest, and

(b)any operations and activities appearing to the Department to be likely to damage the flora or fauna or those features,

shall have effect for the purposes of these Regulations.

(2) The Department may, for the purpose of securing compliance with the requirements of the Habitats Directive, at any time amend the declaration with respect to any of the matters mentioned in paragraph 1(a) or (b).

(3) Notice of any amendment shall be given—

(a)to every owner and occupier of any land within the site who in the opinion of the Department may be affected by the amendment; and

(b)to each district council in whose district the site is wholly or partially situated;

and the amendment shall come into force in relation to an owner or occupier upon such notice being given to him.

(4) The provisions of Article 33 of the Nature Conservation and Amenity Lands (Northern Ireland) Order 1985 (matters to be registered in the Statutory Charges Register) apply with the necessary modifications to an amendment of a declaration under this regulation as in relation to the original declaration.

Restriction on carrying out operations specified in declaration

16.—(1) The owner or occupier of any land within a European site shall not carry out, or cause or permit to be carried out on that land, any operation or activity specified in a declaration in force in relation to the site under regulation 15 unless—

(a)in the case of any operation or activity which, in the opinion of the Department, would not cause any damage to the scientific interest of the area,—

(i)a person has given notice to the Department of a proposal to carry out the operation or activity; and

(ii)the operation or activity is carried out with the Department’s written consent; and

(iii)the Department has not served on him notice of its intention to acquire the land compulsorily; or

(b)in the case of any other operation or activity,—

(i)the owner or occupier has given written notice to the Department of a proposal to carry out the operation or activity, specifying its nature and the land on which it is proposed to carry it out; and

(ii)one of the conditions in paragraph (2) is fulfilled; and

(iii)the Department has not served on him notice of its intention to acquire the land compulsorily.

(2) The conditions referred to in paragraph 1(b)(ii) are—

(a)that the operation or activity is carried out with the Department’s written consent; and

(b)that the operation or activity is carried out in accordance with the terms of a management agreement.

(3) A person who, without reasonable excuse, contravenes paragraph (1) shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(4) For the purposes of paragraph (3) it shall be a reasonable excuse in any event for a person to carry out an operation if—

(a)the operation was authorised by a planning permission granted under Part IV of the 1991 Order; or

(b)the operation was an emergency operation particulars of which (including details of the emergency) were notified to the Department as soon as practicable after the commencement of the operation.

(5) The Department shall have power to enforce the provisions of this regulation.

(6) Proceedings for an offence under this regulation shall not, without the consent of the Director of Public Prosecutions for Northern Ireland, be taken by a person other than the Department.

Supplementary provisions as to consents

17.—(1) Where it appears to the Department that an application for consent under regulation 16(2)(a) relates to an operation which is or forms part of a plan or project which—

(a)is not directly connected with or necessary to the management of the site, and

(b)is likely to have a significant effect on the site (either alone or in combination with other plans or projects),

it shall make an appropriate assessment of the implications for the site in view of that site’s conservation objectives.

(2) In the light of the conclusions of the assessment, and subject to paragraph (3), the Department may give consent for the operation only after having ascertained that the plan or project will not adversely affect the integrity of the site.

(3) If, in spite of an assessment that a plan or project will adversely affect the integrity of a site, the Department is satisfied that, there being no alternative solutions, the plan or project must be carried out for imperative reasons of overriding public interest (which, subject to paragraph (4), may be of a social or economic nature), it may give consent to the operation.

(4) Where the site concerned hosts a priority natural habitat type or a priority species, the reasons referred to in paragraph (3) must be either—

(a)reasons relating to human health, public safety, or beneficial consequences of primary importance to the environment, or

(b)other reasons which in the opinion of the European Commission are imperative reasons of overriding public interest.

(5) Where the Department gives consent under this regulation it shall secure that such compensatory measures are taken as are necessary to ensure that the overall coherence of Natura 2000 is protected.

(6) This regulation does not apply in relation to a site which is a European site by reason only of regulation 9(1)(c) (site protected in accordance with Article 5(4)).

Provision as to existing notices and consents

18.—(1) Any notice previously given under Article 25(1)(a)(i) or (b)(i) of the Nature Conservation and Amenity Lands (Northern Ireland) Order 1985 or consent previously given under Article 25(1)(a)(ii) or (2)(a) of that Order in relation to land which on or after the commencement of these Regulations becomes land within a European site shall have effect, subject as follows as if given under regulation 16(1)(a)(i) or (b)(i) (notices), (a)(ii) or (2)(a) (consents).

(2) The Department shall review any such consent as regards its compatibility with the conservation objectives of the site, and may modify or withdraw it.

(3) Notice of any such modification or withdrawal of consent shall be given to every owner and occupier of land within the site who in the opinion of the Department may be affected by it; and the modification or withdrawal shall come into force in relation to an owner or occupier upon such notice being given to him.

(4) The modification or withdrawal of a consent shall not affect anything done in reliance on the consent before the modification or withdrawal takes effect.

(5) Where or to the extent that an operation ceases to be covered by a consent by reason of the consent being modified or withdrawn, regulation 16(1) shall apply from the giving of the notice of the modification or withdrawal under paragraph (3) above.

Compensation

Compensation: payment

19.  Where a declaration is applied by virtue of regulation 15 the Department shall pay compensation to any person having at the time the declaration is so applied an estate in land comprised in an agricultural unit (within the meaning of Article 2(2) of the Planning Blight (Compensation) (Northern Ireland) Order 1981(2)) comprising land to which the declaration relates who, on a claim made to the Department within the time and manner prescribed by regulations, shows that the value of his estate in that land is less than it would have been if a declaration had not so applied.

Compensation: amount and assessment

20.—(1) The following provisions have effect in relation to compensation under regulation 19 (compensation).

(2) The amount of compensation shall be the difference between the value of the estate in the land in question and what it would have been had a declaration not applied by virtue of regulation 15.

(3) For this purpose—

(a)an estate in land shall be valued at the time when the declaration is applied by virtue of regulation 15 to that land; and

(b)where a person has more than one estate in land to which a declaration is applied by virtue of regulation 15, his various estates may be valued together.

(4) Article 13 of the Land Acquisition and Compensation (Northern Ireland) Order 1973(3) (mortgages, trusts for sale and settlements) shall apply in relation to compensation under regulation 19 as it applies to compensation under Part II of that Order.

(5) For the purpose of assessing any compensation payable under regulation 19, the rules set out in Article 6 of the Land Compensation (Northern Ireland) Order 1982(4) shall, so far as applicable and subject to any necessary modifications, have effect as they have effect for the purpose of assessing compensation for the compulsory acquisition of land.

(6) Except so far as may be provided by regulations made by the Department, any question of disputed compensation shall be referred to and determined by the Lands Tribunal.

Compensation: procedural provisions

21.—(1) The power to make regulations under Article 26 of the Nature Conservation and Amenity Lands (Northern Ireland) Order 1985(5) (compensation) shall be exercisable so as to make provision for the purposes of these Regulations corresponding to those for which provision may be made under that Article.

(2) The references in regulation 19 to matters being prescribed by regulations, and in regulation 20(6) to matters being provided by regulations, are to their being so prescribed and provided.

(3) Any regulations in force under Article 26 of that Order on the commencement of these Regulations shall have effect for the purposes of these Regulations as if made under that Article as applied by this regulation.

Restoration where person convicted of an offence under regulation 16

22.—(1) Where a person is convicted of an offence under regulation 16, the court by which that person is convicted may, in addition to dealing with him in any other way, make an order requiring him to carry out, within such a period as may be specified in the order, such operations for the purpose of restoring the land to its former condition as may be so specified.

(2) The period specified in an order made under paragraph (1) shall not begin to run—

(a)in any case until the expiration of the period for the time being prescribed by law for the giving of notice of appeal against a decision of a court of summary jurisdiction;

(b)where notice of appeal is given within the period so prescribed, until determination of the appeal.

(3) At any time before an order under paragraph (1) is complied with or fully complied with, the court by which it was made may, on the application of the person against whom it was made, discharge or vary the order if it appears to the court that a change in the circumstances has made compliance or full compliance with the order impracticable or unnecessary.

(4) If, within the period specified in an order under paragraph (1), the person against whom it was made fails, without reasonable excuse, to comply with it, he shall be guilty of an offence and liable on summary conviction—

(a)to a fine not exceeding level 5 on the standard scale; and

(b)in the case of a continuing offence, to a further fine not exceeding £100 for each day during which the offence continues after conviction.

(5) If, within the period specified in an order under paragraph (1), any operations specified in the order have not been carried out, a person authorised in writing by the Department may enter the land and carry out those operations and recover from the person against whom the order was made any expenses reasonably incurred by the Department in doing so.

Byelaws

Power to make byelaws

23.—(1) The Department may make byelaws for the protection of a European site under Article 19 of the Nature Conservation and Amenity Lands (Northern Ireland) Order 1985 (byelaws for the protection of nature reserves).

(2) Without prejudice to paragraph (1), byelaws under that Article as it applies by virtue of this regulation may make provision of any of the following kinds.

(3) They may—

(a)provide for prohibiting or restricting the entry into, or movement within, the site of persons, vehicles, boats and animals;

(b)prohibit or restrict the killing, taking, molesting or disturbance of living creatures of any description in the site, the taking, destruction or disturbance of eggs, larvae or other immature stage of any such creature, the taking of, or interference with, vegetation of any description in the site, or the doing of anything in the site which will interfere with the soil or damage any object in the site;

(c)regulate or prohibit the taking away of soil, turf, sand or minerals of any description;

(d)prohibit or restrict, or provide for prohibiting or restricting, the lighting of fires in the site, or the doing of anything likely to cause fire in the site.

(4) They may prohibit or restrict any activity referred to in paragraph (3) within such area surrounding or adjoining the site as appears to the Department requisite for the protection of the site.

(5) They may provide for the issue, on such terms and subject to such conditions as may be specified in the byelaws, of permits authorising—

(a)entry into the site or any such surrounding or adjoining area as is mentioned in paragraph (4), or

(b)the doing of anything within the site, or any such surrounding or adjoining area,

where such entry, or doing that thing, would otherwise be unlawful under the byelaws.

(6) They may be made so as to relate to the whole or to any part of the site, or of any such surrounding or adjoining area as is mentioned in paragraph (4), and may make different provisions for different parts thereof.

(7) Before making byelaws under Article 19 of the Nature Conservation and Amenity Lands (Northern Ireland) Order 1985 as applied by this regulation the Department shall consult the Council for Nature Conservation and the Countryside.

(8) This regulation does not apply in relation to a European marine site (but see regulation 31).

Byelaws: limitation on effect

24.  Byelaws under Article 19 of the Nature Conservation and Amenity Lands (Northern Ireland) Order 1985 as it applies by virtue of regulation 23 shall not interfere with—

(a)the exercise by any person of a right vested in him as owner, lessee or occupier of land in a European site, or in any such surrounding or adjoining area as is mentioned in paragraph (4) of that regulation;

(b)the exercise of a public right of way; or

(c)the exercise of any statutory functions of any local or public authority.

Compensation for effect of byelaws

25.—(1) Where the exercise of any right vested in a person by reason of his being entitled to any estate in land is prevented or hindered by the coming into operation of byelaws under Article 19 of the Nature Conservation and Amenity Lands (Northern Ireland) Order as it applies by virtue of regulation 23, he shall be entitled to receive from the Department compensation in respect thereof.

(2) Any dispute, arising on a claim for compensation under paragraph (1) shall, in the absence of agreement be referred to and determined by the Lands Tribunal.

Continuation in force of existing byelaws

26.  Any byelaws previously made under Article 19 of the Nature Conservation and Amenity Lands (Northern Ireland) Order 1985 in relation to land which on or after the commencement of these Regulations becomes land within a European site, or adjacent to such a site, shall have effect as if made under the said Article 19 as it applies by virtue of regulation 23 and shall be construed as if originally so made.

Power of acquisition

Power of acquisition

27.—(1) Where the Department is satisfied—

(a)that it is unable to enter into a management agreement with any person having estate in any land within a European site, on terms appearing to it to be reasonable; and

(b)that it is expedient for the purposes of conserving land within a European site;

the Department may, in accordance with arrangements approved by the Department of Finance and Personnel, acquire such land, or any land necessary for the purpose of providing a means of access to such land, by agreement (whether by way of purchase, lease or exchange) or otherwise.

(2) Where, for any of the purposes referred to in paragraph (1), the Department desires to acquire otherwise than by agreement any land, the Department may make an order vesting that land in the Department.

(3) Section 97(2) and (3) of, and Schedule 6 to, the Local Government Act (Northern Ireland) 1972(6) shall apply subject to the modifications specified in Schedule 1 for the purpose of the making of vesting orders under this regulation.

(4) Where the Department is of the opinion that any land acquired under this regulation would be more expediently or efficiently managed or conserved in the public interest by any person, the Department may, in accordance with arrangements approved by the Department of Finance and Personnel, convey, either for value or otherwise and upon such terms and conditions as the Department may think fit, that land to that person, and may—

(i)impose such restrictions as the Department may think necessary on the user of the land so conveyed; and

(ii)grant or reserve such rights over such land as the Department may think fit.

(5) Without prejudice to paragraph (4), the Department may, in accordance with arrangements approved by the Department of Finance and Personnel, dispose of any land acquired under this regulation which the Department no longer requires for any of the purposes referred to in paragraph (1), upon such terms and conditions as the Department may think fit, and may impose restrictions and grant or reserve rights as if the land were conveyed under paragraph (4).

(6) Nothing in section 5 of the Stormont Regulation and Government Property Act (Northern Ireland) 1933(7) (which relates to the taking and disposal of land for the public services) shall affect the disposal by the Department of land acquired under this regulation.

Special provisions as to European marine sites

Marking of site and advice by the Secretary of State

28.—(1) The Secretary of State may install markers indicating the existence and extent of a European marine site.

(2) As soon as possible after a site becomes a European marine site, the Secretary of State shall advise the relevant authorities as to—

(a)the conservation objectives for that site, and

(b)any operations which may cause deterioration of natural habitats or the habitats of species, or disturbance of species for which the site has been designated.

Management scheme for European marine site

29.—(1) The Department, the Department of Agriculture and the relevant authorities, or any of them, may establish for a European marine site a management scheme under which their functions (including any power to make byelaws) shall be exercised so as to secure in relation to that site compliance with the requirements of the Habitats Directive.

(2) Only one management scheme may be made for each European marine site.

(3) A management scheme may be amended from time to time.

(4) As soon as a management scheme has been established by the relevant authority or authorities, or is amended, a copy of it shall be sent by the relevant authority or authorities concerned to the Secretary of State.

Direction to establish or amend management scheme

30.—(1) The Secretary of State, or persons authorised on his behalf, may give directions to the relevant authorities, or any of them, as to the establishment of a management scheme for a European marine site.

(2) Directions may, in particular—

(a)require conservation measures specified in the direction to be included in the scheme;

(b)appoint one of the relevant authorities to co-ordinate the establishment of the scheme;

(c)set time limits within which any steps are to be taken;

(d)provide that the approval of the Secretary of State is required before the scheme is established; and

(e)require any relevant authority to supply to the Secretary of State such information concerning the establishment of the scheme as may be specified in the direction.

(3) The Secretary of State, or persons authorised on his behalf, may give directions to the relevant authorities, or any of them, as to the amendment of a management scheme for a European marine site, either generally or in any particular respect.

(4) Any direction under this regulation shall be in writing and may be varied or revoked by a further direction.

Byelaws for protection of European marine site

31.—(1) The Secretary of State may make byelaws for the protection of a European marine site under Article 21 of the Nature Conservation and Amenity Lands (Northern Ireland) Order 1985(8) (byelaws for the protection of marine nature reserves).

(2) The provisions of paragraphs (2) to (7) of that Article apply in relation to byelaws made by virtue of this regulation with the substitution for the references to marine nature reserves of references to European marine sites.

(3) Nothing in the byelaws made by virtue of this regulation shall interfere with the exercise of any functions of a relevant authority, any functions conferred by or under a statutory provision (whenever made) or any right of any person (whenever vested).

Miscellaneous

Nature conservation policy in planning contexts

32.  The Department shall endeavour, where it considers it necessary, in its land use planning and development policies, to encourage the management of features of the landscape which are of major importance for wild fauna and flora.

Such features are those which, by virtue of their linear and continuous structure (such as rivers with their banks or the traditional systems for marking field boundaries) or their function as stepping stones (such as ponds or small woods), are essential for the migration, dispersal and genetic exchange of wild species.

(1)

S.I. 1985/170 (N.I. 1); Article 17 was amended by Article 8 of the Nature Conservation and Amenity Lands (Amendment) (Northern Ireland) Order 1989 S.I. 1989/492 (N.I. 3)

(5)

S.I. 1985/170 I(N.I. 1)

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