1. 1.Provide an overview of the mining industry in your country. What significance does the mining industry have as a component of the national economy?

    Although during pre-colonial times the native inhabitants of Panama had abundant gold artifacts and several gold mines were exploited during the colony (to the Spanish colonial government Panama was known as “Castilla de Oro”), for the greater part of its history as an independent nation Panama has not had a developed mining industry. Except for a few small gold and manganese mines, mining activity has been limited to the extraction of materials needed for the construction industry.

    Geological surveys of the last 80 years attest to the vast mining potential of Panama. Cerro Colorado and Petaquilla, two of the largest untapped copper deposits in the world, sit in Panama waiting to be developed. In the 1990s Mina Santa Rosa and Mina Remance were in production for a few years. At the beginning of 2010, Petaquilla Gold (a subsidiary of Petaquilla Minerals Ltd, based in Canada) started production at the Molejon gold deposit in Petaquilla (with an estimated annual production of 100,000 ounces). Minera Cerro Quema SA (a subsidiary of Pershimco Resources Inc, also of Canada) has announced that it will start production of the Cerro Quema gold deposit in late 2012 (estimated to produce 54,000 ounces annually at peak).

    Before 2010, except for scrap metal, Panama exported no minerals. During 2010 and 2011 gold has become the number one export. Gold production at Petaquilla alone accounts for 10 per cent of total Panamanian exports since 2010.

    The current Panamanian administration has openly expressed its willingness to support and foster mining and has been trying to modernise mining legislation, although it has encountered some obstacles in its way. In early 2011, the government passed an amendment to the Code of Mineral Resources, which later had to be repealed due to opposition by native groups who feared that mining exploitation necessarily entailed the loss of their ancestral lands. After repealing the new law, the government met with native groups and reached an agreement regarding the procedures to follow in the case of mining activities in lands occupied by natives. It is anticipated that new legislation will be reintroduced in the future (either in late 2011 or during 2012), which will not only address the concerns of native groups (without preventing the exploitation of mineral resources in their lands), but which will also modernise the legal regime applicable to mining and foster such economic activity.

  2. 2.Describe the legal and regulatory framework. What laws establish and grant authority to the mining authorities?

    Article 257 of the Political Constitution of the Republic of Panama states that all mineral assets belong to the state. The Panamanian Constitution provides for the granting of mineral concessions enabling persons, other than the state, to explore for and exploit mineral deposits.

    Mining legislation in Panama must be passed by the National Assembly (the legislative body of the government of Panama), sanctioned by the President and published in the Official Gazette.

    The Code of Mineral Resources of Panama (adopted by means of Law Decree No. 23 of 1963, as amended, the “CMR”) is the main legal body governing most activities relating to Panama’s subsurface estate (other than hydrocarbons), establishes the system of mining concessions and determines the relevant privileges and obligations of concession holders. In the case of minerals used in the construction industry (sand, gravel, clay, etc,) the CMR has been supplemented by Laws 55 and 109 of 1973, and Law 32 of 1996, in order to create a separate regime for the granting of concessions relating to those minerals.

    The CMR states that the Ministry of Commerce and Industries, through its Directorate General of Mineral Resources (the DGMR), is the governmental entity in charge of overseeing mining activities in Panama. According to the CMR, the DGMR oversees the granting of mining concessions to particulars and ensures that mining is carried out in accordance with the law.

    Since Panama has a unitary system of government, the DGMR and other central authorities (such as the National Environmental Authority) are the only ones in charge of regulating mining. There is little if any overlap with provincial or municipal authorities.

  3. 3.Describe the investment regime applicable to foreign company involvement in mining projects.

    The CMR contains the general investment regime applicable to mining companies. It applies equally to foreign and local companies, without restrictions on account of nationality.

    The official currency of Panama is the Balboa. The Balboa however exists in coins only. In accordance with Panamanian law, the United States dollar is on a par with the Balboa and is also legal tender in Panama and, since there are no Balboa bills, it circulates freely and is the accepted medium of exchange. Official payments to the government are expressed in terms of Balboas, although, in effect, are paid in dollars.

    There are no exchange controls of any kind in Panama. Consequently, funds of any denomination and in any amounts may move freely in and out of the country at any time, may be deposited in local or foreign banks, and may be held by any domestic or foreign natural or legal person. It is lawful to hold funds in any denomination, as well as gold bullion.

    There are no export limits on mineral products currently in effect. The CMR empowers the government to require concession holders to deliver a portion of their production for internal use in Panama. Such product is to be paid at production prices (which are deemed to be the prices that a third party in Panama may have to pay to the concession holder for the mineral). Thus far, the government has not made use of this legal power.

    The above investment regime has been in place in Panama for several decades. Companies wishing to obtain further assurances may seek to register under Law 54 of 1998, which provides for a legal and tax stability regime for companies investing in Panama not less that US$2 million. The stability regime has a ten year duration.

  4. 4.Is your country a party to international investment treaties applicable to mining projects undertaken or sponsored by foreign companies?

    The Republic of Panama has entered into several treaties concerning the treatment and protection of investment (with the United States, Canada, Chile, Czech Republic, United Kingdom, France, the Netherlands, South Korea, Singapore, Spain, to name a few, BITs). These treaties afford a general protection regime (applicable to mining and other types of activities). In general, these treaties provide for the possibility of resorting to international arbitration in case of disputes.

  5. 5.What in general terms is the mining exploration and exploitation permit or concession regime? What is the licensing regime?

    In the case of mining projects in Panama, there are two types of concession regimes:

    • concession agreements granted by means of special legislation (or contrato-ley); and
    • ordinary concession agreements granted by the government pursuant to the terms of the CMR.

    Concessions for some of the largest infrastructure projects in Panama have been granted by means of special legislation (for example, Texaco’s former oil refinery (built in the early 1960s and refurbished in the early 1990s) and Northville’s trans-Isthmian pipeline (built in the late 1970s and refurbished in the 1990s and during the start of the 21st century)). In the case of mining, there are two main examples of concessions granted by means of special legislation: Minera Panama SA and Petaquilla Gold’s Petaquilla mining concession (granted in 1997); and RTZ’s development plans with respect to Cerro Colorado (which was granted in the early 1980s and mutually terminated in the early 1990s).

    Some of the advantages of such special legislation are that the terms of the concession can be tailor-made to the project; tax relief from some taxes (withholding and stamp taxes and registration duties for mortgages); specific recognition of lenders’ rights to step-in, greater certainty as to enforcement of security arrangements, etc.

    However, the granting of mining concessions by means of special legislation is rare. The government may be willing to consider special legislation for a mining project in extraordinary circumstances: importance of the project to the nation, amount of investment required, difficulties of the project, etc. As a matter of general policy, the last administrations have shied away from the granting of concessions by means of special legislation. The preference of Panamanian governments has been to grant all types of concessions by means of the applicable general legal regimes (available to all investors wishing to invest in the country).

    The CMR and related laws provide a general framework for the granting of mining concessions, which is available to all projects and investors. The vast majority of mining concessions have been granted pursuant to the CMR and related legislation.

    The CMR and related laws establish a system of mining concessions for the exploration and extraction of mineral resources and determine the relevant privileges and obligations of concession holders. The CMR sets forth two principal types of mining concessions, the exploration concession and the extraction concession, and in addition allows the grant of prospecting permits (permisos de reconocimiento superficial) and processing and transportation concessions (concesiones de beneficio y de transporte). A mining concession is granted for specific types of minerals.

    Exploration concessions grant the concessionaire, firstly, the right to engage in preliminary geological work (as would also be conferred by a Prospecting Permit); secondly, the exclusive right to engage in all necessary exploration and related activities with respect to specific types of minerals within the zone constituting the concession; and thirdly, the exclusive right to be awarded an extraction concession over the relevant area should minerals in commercial quantities be discovered during exploration activities. Exploration concessions are available for initial periods of four years, subject to two discretionary extension periods of two years each.

    A holder of a valid exploration concession benefits from the exclusive right to apply for an extraction concession on the same area. The CMR also provides for the award of extraction concessions over minerals not then subject to exploration activities. Extraction concessions are granted for: an initial period of 25 years and for a maximum area of 5,000 hectares for base metals; an initial period of 20 years and for a maximum area of 5,000 hectares for alluvial precious metals; and an initial period of 10 years and a maximum area of 3,000 hectares for non-alluvial precious metals. Extraction concessions may be extended, at the discretion of the DGMR, for three periods, the first two of 10 years each and the last one of five years. In the case of construction materials, such concessions are granted for an initial period of 10 years and a maximum area of 500 hectares, and their term may be extended for an additional 10-year period.

    The prospecting permit allows the permittee the right to engage in preliminary geological surveying on a non-exclusive basis within the specific area delineated for the relevant permit for an initial period of six years.

    Transportation and processing concessions enable the holders thereof to transport and process, respectively, minerals on behalf of a mining operator legally entitled to extract those minerals. Each such concession may be granted for an initial period of 25 years, subject to three renewal periods, the first one of ten years and the last two of five years each. Holders of extraction concessions engaged in the ordinary course of extracting and selling mineral product are not required to obtain these supplemental concessions.

    The DGMR, a bureau within the Ministry of Commerce and Industries, is the administrative entity in charge of all matters relating to Panama’s subsoil, except for hydrocarbons. The DGMR is in charge of receiving and reviewing applications for mineral concessions and recommending their acceptance or rejection. Once the concessionaires and their applications have been approved by the DGMR, the concession will be granted by means of a concession contract entered into by the concessionaire and the Minister of Commerce and Industries, representing the state of Panama. The law requires that concession contracts be countersigned by the Office of the Comptroller General of the Republic and published in the Official Gazette of the Republic of Panama.

    Mining concessions may be granted to foreign and local private and governmental entities. The vast majority of mining concessions are currently granted to private entities. However, the state also holds concessions mainly with respect to the extraction of construction materials (generally employed in public works). In the case of metallic minerals, the government holds the concession for the Cerro Colorado deposits; however, the government has not been directly involved in exploration or extraction at Cerro Colorado and has always sought the assistance of large mining companies (for example, RTZ).

    The application process for mining concessions involves the submission to the DGMR of information on the legal, financial and technical status of the applicant, maps, mining plans and budgets for at least four years, a nominal application fee, and environmental impact studies. Our authorities require environmental impact studies for the granting of mineral concessions. In the case of an application for an exploration concession, the type and scope of the environmental impact study will depend on the degree of intrusiveness of the intended exploration plans.

    The maintenance conditions applicable to mining concessions involve mainly the obligation on the part of the concession holder to actively and continuously carry out the work plans approved by the DGMR within the terms of its contract and the law. In addition, concessionaires are required to file periodic information reports with the DGMR, including annual reports of their operations, information as to each concession (or part thereof) cancelled, abandoned or otherwise terminated, quarterly reports on royalties owed to the government, detailed reports on all technical aspects of operations which are normally required to be submitted on an annual basis unless the DGMR requires more frequent documents, annual tax reports and statements as to compliance with the relevant provisions relating to employment found in the CMR and related legislation, etc.

    The National Environmental Authority (ANAM) is the governmental entity in Panama in charge of reviewing and approving environmental impact studies filed by applicants of mining concessions and overseeing the compliance by concessionaires with approved studies and remediation plans.

  6. 6.What types of duties, royalties and taxes must be paid by the mining project company as a condition to obtaining or continuing a mining concession? What remedial actions are available to the granting authority when such levies are unpaid?

    Since the enactment of the CMR in 1963, concessionaires have been expected to contribute to the government:

    • a fixed annual duty for the area comprising mining concessions; and
    • royalties for the product extracted.

    In early 2011, Panama adopted a set of amendments to the CMR, which, inter alia, included a new regime regarding duties and royalties applicable to mining concessions. However, as explained earlier, the government had to repeal such amendments. The repeal had the effect under our legal system of leaving without effect the old and new regimes regarding duties and royalties applicable to mining concessions.

    It is anticipated that the new legislation will be enacted shortly and that such duties and royalties may be equal or very similar to the new regime adopted in early 2011:

    • in the case of exploration concessions, a fixed annual surface tax, ranging from US$1 to US$3 per hectare, with the amount increasing progressively with the length of the concession;
    • in the case of extraction concessions, the surface tax and royalties vary depending on the mineral: the surface tax will range from US$1.50 to US$ 8 per hectare and the royalties will range from 4 per cent to 8 per cent. Royalties are calculated as percentages of the “net negotiable production”. “Net negotiable production” is defined as the net amounts obtained during a fiscal year from the sale of extracted minerals, which is generally equal to:
      • the gross sales receipts minus;
      • transportation and other expenses, calculated in accordance with the international financial reporting standards;

    • Concessionaires will also have to pay annual inspection duties of :
      • US$ 2,500 in the case of exploration concessions; and
      • US$ 5,000 in the case of extraction concessions.

    Concessionaires are also required to post performance bonds. The 2011 amendments to the CMR stated that these bonds would range from US$50 per hectare in the case of exploration concessions to US$200 per hectare in the case of extraction concessions.

    Performance bonds may be posted in cash, delivery of bonds issued by the government of Panama or surety bonds issued by insurance companies qualified to do business in Panama.

    Any payments to the government may be made in dollars of the United States of America.

    Failure to pay to the government amounts due under the concession contracts and the law will trigger defaults under the concession contracts and will give right to the government to terminate concessions. The CMR allows a grace period of one year for payment defaults. In practice, third parties (such as creditors) may step in and pay the duties owed to the government.

  7. 7.What in general terms is the water rights regime? What is the availability of water for mining facilities? What techniques or activity have you seen in your jurisdiction to address limited or shared water resources?

    Rights to water resources are awarded by ANAM and will have to be applied for separately from mining concessions. These rights follow mining concessions or land ownership, or both, and cannot be mortgaged, encumbered or assigned.

  8. 8.What in general terms is the surface rights regime?

    Holders of both exploration and extraction concessions enjoy reasonable rights of access to and use of water, timber and soil overlying those concessions, subject to permission from the owner of the surface estate or ANAM, or both.

    Concessionaires will have unimpeded access to lands owned by the state, which are not subject to possessory claims. In the case of privately held lands, if the surface owner and the concessionaire fail to come to an agreement, the CMR establishes a procedure for expropriation of all lands necessary for mining or the creation of an appropriate easement in favour of the concessionaire, upon payment of just compensation and costs to the surface owner. In such a case, title to all surface land so taken will vest in the government of Panama, with all necessary rights of use enuring to the concessionaire. Such rights of use will terminate at the time the concession ends.

    Concessionaires may also acquire title to lands within their concessions. These lands will be owned by the concessionaire and are not subject to any defeasance conditions.

  9. 9.What is the availability of power for remote mining facilities? May mining facilities generate their own power?

    The CMR and Panama’s power generation laws and regulations allow mining companies to apply for the required concessions to generate their own power.

  10. 10.What are the grounds for lawful termination of rights under a mining concession, water rights or surface rights or power rights? What remedies are available to the concessionaire if rights are wrongfully terminated?

    Mineral concessions may be cancelled if concessionaires breach their obligations under concession contracts or relevant legal provisions under the CMR and other applicable laws. In addition, a mineral concession may be cancelled in case the concessionaire is declared bankrupt or insolvent. The CMR allows a grace period of one year for payment defaults by miners and provides that the relevant concession will not be revoked in the absence of overt and repeated refusals to submit required reports or comply with inspection requests from government officials. A concession will, moreover, be considered abandoned if mining operations cease for an entire year, in the absence of any force majeure event.

    The cancellation of mining concessions will also entail the cancellation of rights to the use of waters associated with the project and the rights to have access to state lands and properties.

    Bear in mind that water and power concessions are granted pursuant to separate concession contracts and under legal regimes different from the CMR. The contracts and applicable legal regimes for water and power concessions also provide for default provisions which may be different from those provided in the CMR, given the nature of the concession.

    Mining concessions will be cancelled by the Ministry of Commerce and Industries, water rights by ANAM and power concessions by the Public Services Authority (also known by as ASEP). Governmental entities have the power to unilaterally terminate concessions in case of defaults.

    By law, the government of Panama has the right to terminate a concession agreement for reasons of public interest (ie, without the existence of defaults) and upon payment of fair compensation. Please note that this principle applies to all the concessions that may be granted to a mining company for the development of a mining project (mining, water, power, road building, etc). The details of what constitutes public interest and fair compensation depend on the type of concession.

    In the absence of special dispute resolution provisions in the applicable concession contracts, concessionaires will have to recur to the Third Chamber of the Supreme Court of Panama to challenge any unjustified termination of their rights. In addition, in case any concessionaire hails from any country that has entered into a BIT with Panama, it may recur to the remedy and protection mechanisms provided in such treaty.

  11. 11.Describe the extent to which the legal and regulatory regime is conducive to the installation or provision of essential infrastructure.

    Mining concessionaires in Panama should expect a legal regime conducive to the installation and provision of infrastructure required for their projects. In addition, they can expect cooperation from governmental authorities in charge of permitting and licensing.

    Panamanian authorities are familiar with and understand the complexities of modern infrastructure projects. There are several ongoing major infrastructure projects in Panama (exceeding US$15 billion of capital investment), which require of multiple governmental concessions, permits and licenses and the authorities have proved cooperative and responsive to the needs of these projects (some examples are the construction of the third set of locks of the Panama Canal, several major hydroelectric projects (GDF Suez’s Dos Mares and AES’s Changuinola), the building of a metro line for the city of Panama (by Constructora Norberto Odebrecht and Alstom), etc). In addition, Minera Panama SA (a Panamanian subsidiary of Inmet Mining Corporation) is currently in the construction phase of a copper mine, which requires an investment of not less than US$4 billion dollars. Therefore, developers and sponsors should not expect problems in procuring the permits needed for developing the infrastructure required for their projects.

  12. 12.Please provide a description of the collateral security arrangements permitted in your jurisdiction, relating particularly to the mining project’s ability to grant to creditors a perfected security interest in concession rights, water rights, surface rights, related easements, permits, licences, land and bank accounts. Are there any limitations to the ability to transfer such rights to a successor owner/operator of the mine?

    The following are some of collateral security arrangements available to creditors in mining projects:

    • mining concessions may be mortgaged;
    • if the land belongs to the concessionaire, it may be mortgaged;
    • mining product, once extracted, may be subject to security arrangements;
    • shares and bank deposits of the concessionaire may be pledged; and
    • movable assets may be either pledged or mortgaged.

    As a general rule, the type of security arrangement will depend on the type of collateral.

    Mortgages may turn out to be expensive security arrangements.

    Registration duties applicable to real estate mortgages are based on the principal amount secured: at the rate of US$0.02 for each US$100 or fraction thereof secured by the mortgage. In the case of chattel mortgages, the applicable duties are US$42 for the first US$20,000 and US$30 for each US$10,000 or fraction thereof secured by the mortgage. In addition, their registration requires that their text be typed on notarial paper (which has a cost of US$8 per page). If any agreement is in English, it will have to be translated to Spanish by an official interpreter.

    Stamp taxes also apply to agreements expressing obligations to pay, including security agreements, at the rate of US$0.10 for each US$100 of the face value of the obligation expressed on the document. Amounts paid in notarial paper and in registration duties for the documents that have to be registered are deducted from the applicable stamp tax.

    Before the early 2011 amendments to the CMR (see our answers to the first question above), mortgages on mining concessions had to be registered at the Mining Register (kept by the DGMR) and at the Public Registry of Panama (which is a general registry containing records on companies, vessels, real estate and some other types of chattel property). The 2011 amendments stated that mortgages on mining concessions had to be registered at the Mining Register only and set the registration duty at US$1,500 (regardless of the amounts secured). As a result of the repeal of the 2011 amendments to the CMR, mortgages on mining concessions seem to have to be registered at the Mining Register only. It is anticipated that new legislation will be adopted in the near future which will introduce greater certainty on the place of registration of mortgages on mining concessions.

    Mining concessions may be transferred, with the consent of the government. According to the CMR, the transferee must prove to the satisfaction of our authorities that it has the technical and financial capabilities to continue with the obligations of transferor under the concession.

  13. 13.Is it accepted practice for creditors financing a mining project to enter into an agreement with the mining authority in connection with the creation, perfection or acknowledgement of the collateral security interests granted to the creditors in mining projects, including to facilitate the transfer of such rights to a successor owner/operator? Is there any requirement, benefit or limitation to such agreements?

    Generally, the granting of any collateral security arrangements on governmental concessions requires prior governmental consent. Government officials have proved cooperative at the time of granting such consents. In the case of water rights, the law prohibits their encumbrance or assignment.

    At the time of requesting governmental consents to the granting of security arrangements over governmental concessions, it may be advisable to request an express consent or acknowledgment on the part of the government to creditors’ stepping-in rights.

    In the case of mortgages on mining concessions, the CMR requires that lenders or secured parties submit evidence of their legal and financial capacity to extend financing to mining operators. The CMR also provides for the possibility of lenders or secured parties to assume the operation of mining concessions, provided such secured parties or third parties (appointed by the secured parties) have the required technical capacity to continue with mining operations.

    Security arrangements over privately held rights (such as titled lands belonging to concessionaires and ownership of shares of concessionaires) do not require governmental consent, even if such rights are closely related to mining concessions.

  14. 14.What means of enforcement are available to creditors in connection with collateral security interests in mining rights?

    Mortgages on mining and other types of concessions, titled lands and chattel property may be foreclosed pursuant to general mortgage foreclosure proceedings provided in the Judicial Code.

    Pledges may also be foreclosed pursuant to judicial proceedings, however, the law allows in certain instances (particularly, if agreed upon in the pledge agreement) for their private enforcement.

    The type of enforcement available will depend on the type of collateral security arrangement.

  15. 15.What insurance must be placed with domestic insurance companies? Can insurance be placed abroad? Can claims be paid directly offshore? Are there restrictions with respect to obtaining reinsurance outside the country, and obtaining assignments or cut-through endorsements to permit claims to be made directly to owners or creditors outside the jurisdiction?

    Insurance coverage must be acquired from local insurance companies. If any particular type of insurance is not available in Panama, then it may be acquired from insurance providers abroad.

    There are no restrictions on the place of payment of insurance claims. Neither are there any restrictions on obtaining reinsurance outside of Panama or cut-through clauses.

  16. 16.Describe any requirements related to the use of domestic and foreign labour, suppliers and contractors.

    Companies must contract Panamanian workmen or foreigners married to Panamanian citizens or who have resided in the country for at least 10 years, in a proportion of at least 90 per cent of total personnel, and may engage expert or technical foreign workers not exceeding 15 per cent. In no event can the percentages of wages or remuneration together and by category be less than those indicated in the previous sentence. However, a larger proportion of foreign technicians (for whom comparable local expertise is unavailable) may be permitted for a definite period at the recommendation of the respective Ministry and subject to approval by the Ministry of Labour.

  17. 17.Can any liabilities extend beyond the mining project company to its owners, mortgagees, or creditors?

    Except for some particular instances in the case of labour obligations, generally, liabilities of the mining project company will not extend to its shareholders, mortgagees or creditors.

  18. 18.Describe any other relevant legal considerations related to financing of mining projects in your jurisdiction.

    Other aspects that may be relevant for Lenders and investors in mining projects are the following:

    • payments of interest by project companies on loans extended by foreign lenders are subject to withholding taxes (during 2011, at the rate of 15 per cent between 2012 and 2014, at the rate of 13.75 per cent starting on 1 January 2014, at the rate of 12.5 per cent). The withholding tax rate applies to the total interest payments;
    • payments of dividends by project companies are subject to withholding taxes, currently calculated at the rate of 10 per cent;
    • step-in rights by lenders and other third parties may require the prior approval of the government, unless the government has consented to such rights previously;
    • mortgages of concessions and other types of collateral may turn out to be expensive (see our answers to question 12 above);
    • as a general comment, lenders and investors should keep an eye on the forthcoming amendments to the CMR (see our answers to question 1 above and elsewhere). Of particular importance to lenders and investors will be the provisions dealing with the public office where mortgages on mining concessions will be registered and the duties applicable to such registration;
    • in the case of large and complex projects, it may be worth considering requesting the government to grant (or re-grant) the mining concession by means of special legislation (contrato-ley). As explained in our answer to question 5 above, some of the advantages of such special legislation are: the terms of the concession can be tailor-made to the project; tax relief from some taxes (withholding and stamp taxes and registration duties for mortgages and other security arrangements); specific recognition of lenders’ rights to step-in, greater certainty as to enforcement of security arrangements, etc.

  19. 19.In recent times, several governments have mandated concession renegotiation, or revisited royalty and taxation regimes in light of increased commodity values. Has there been any such activity in your jurisdiction?

    As stated above, the government intends to amend the CMR to increase the duties and royalties payable for concessionaries. Some of these duties and royalties have been in effect since the late 1980s.

  20. 20.Please provide electronic links to any of the principal statutory and regulatory compilations referred to in your answers to the foregoing questions, including items such as Mining Law, foreign investment regime applicable to mining and environmental law and regulation.

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