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(Revised March 22, 2023)

 



 252.228-7000 Reimbursement for War-Hazard Losses.
 252.228-7001 Ground and Flight Risk.
 252.228-7002 Reserved.
 252.228-7003 Capture and Detention.
 252.228-7004 Reserved.
 252.228-7005 Mishap Reporting and Investigation Involving Aircraft, Missiles, and Space Launch Vehicles.
 252.228-7006 Compliance with Spanish Laws and Insurance.
 252.228-7007 Public Aircraft and State Aircraft Operations—Liability.


252.228-7000  Reimbursement for War-Hazard Losses.

As prescribed in 228.371(a), use the following clause:

 

REIMBURSEMENT FOR WAR-HAZARD LOSSES (DEC 1991)

 

      (a)  Costs for providing employee war-hazard benefits in accordance with paragraph (b) of the Workers' Compensation and War-Hazard Insurance clause of this contract are allowable if the Contractor—

 

              (1)  Submits proof of loss files to support payment or denial of each claim;

 

              (2)  Subject to Contracting Officer approval, makes lump sum final settlement of any open claims and obtains necessary release documents within one year of the expiration or termination of this contract, unless otherwise extended by the Contracting Officer; and

 

              (3)  Provides the Contracting Officer at the time of final settlement of this contract—

 

                    (i)  An investigation report and evaluation of any potential claim; and

 

                    (ii)  An estimate of the dollar amount involved should the potential claim mature.

 

      (b)  The cost of insurance for liabilities reimbursable under this clause is not allowable.

 

      (c)  The Contracting Officer may require the Contractor to assign to the Government all right, title, and interest to any refund, rebate, or recapture arising out of any claim settlements.

 

      (d)  The Contractor agrees to—

 

              (1)  Investigate and promptly notify the Contracting Officer in writing of any occurrence which may give rise to a claim or potential claim, including the estimated amount of the claim;

 

              (2)  Give the Contracting Officer immediate written notice of any suit or action filed which may result in a payment under this clause; and

 

              (3)  Provide assistance to the Government in connection with any third party suit or claim relating to this clause which the Government elects to prosecute or defend in its own behalf.

 

(End of clause)

 

252.228-7001  Ground and Flight Risk.

As prescribed in 228.371(b), use the following clause:

 

GROUND AND FLIGHT RISK (MAR 2023)

 

      (a)  Definitions.  As used in this clause—

 

      “Aircraft,” means, unless otherwise provided in the contract Schedule, any item, other than a rocket or missile, intended for flight (e.g., fixed-winged aircraft, blended wing/lifting bodies, helicopters, vertical take-off or landing aircraft, lighter-than-air airships, and unmanned aerial vehicles), including emerging technologies that would commonly be considered aircraft. New production articles become aircraft at a stage of manufacture or production when a wing, portion of a wing, or engine is attached to a fuselage. Blended wing/lifting bodies become aircraft at a stage of manufacture or production when the center portion and a lifting surface become attached.

 

      “Contractor’s managerial personnel” means the Contractor’s directors, officers, managers, superintendents, or equivalent representatives who have supervision or direction of—

 

                    (1)  All, or substantially all, of the Contractor’s business;

 

                    (2)  All, or substantially all, of the Contractor’s operation at any one plant or separate location; or

 

                    (3)  A separate and complete major industrial operation.

 

      “Contractor's premises” means those premises, including subcontractors’ premises, designated in the Schedule or in writing by the Contracting Officer, and any other place the aircraft is moved for safeguarding.

 

      “Covered aircraft” means an aircraft owned by or to be delivered to the Government and, when determined by the contracting officer and specifically identified as such in the contract Schedule, may include contractor-furnished aircraft that are not intended for induction into the DoD inventory, including—

 

              (1)  Aircraft furnished by the Government to the Contractor under this contract while in the Contractor’s possession, care, custody, or control regardless of their location or state of disassembly or reassembly;

 

              (2)  Items removed from a Government-furnished aircraft that are—

 

                    (i)  Intended for reinstallation on that particular aircraft, which retain their status as covered aircraft while awaiting installation; and

 

                    (ii)  Not intended for reinstallation on that particular aircraft, which lose their status as covered aircraft once removal is complete;

 

              (3)  New production aircraft when wholly outside of buildings on the Contractor’s premises or other places described in the Schedule (e.g., hush houses, run stations, and paint facilities); and

 

              (4)  Commercial aircraft, to include commercially available off-the-shelf aircraft, become covered aircraft when the commercial aircraft arrives at the Contractor’s place of performance for modification under the terms of the contract.

 

      “Crewmember” means, unless otherwise provided in the Schedule, personnel required in the flight manual, assigned for the purpose of conducting any flight on behalf of the Contractor. It also includes any operator of an unmanned aerial vehicle.

 

      “Flight” means any flight approved in writing by the Government flight representative, to include taxi test made in the performance of this contract, or flight for the purpose of safeguarding the aircraft. All aircraft off the Contractor's premises shall be considered to be in flight when on the ground or water for reasonable periods of time following emergency landings, landings made in performance of the contract, or landings approved in writing by the contracting officer.

 

      “Workmanship error” means damage to the aircraft that is the result of an incorrectly performed skill-based task, operation, or action that was originally planned or intended.

 

      (b)  Combined regulation/instruction.  The Contractor shall be bound by the operating procedures contained in the combined regulation/instruction entitled “Contractor’s Flight and Ground Operations” (Air Force Instruction 10-220, Army Regulation 95-20, NAVAIR Instruction 3710.1 (Series), Coast Guard Instruction M13020.3 (Series), and Defense Contract Management Agency Instruction 8210-1 (Series)) in effect on the date of contract award. Compliance with the combined regulation/instruction is required from the time of contract award throughout the period of performance of the contract, regardless of the Government’s assumption of risk under the contract.

 

      (c)  Government as self-insurer.  The Government self-insures and assumes the risk of damage to, or loss or destruction of, covered aircraft subject to the following conditions:

 

              (1)  The Contractor’s liability to the Government for damage, loss, or destruction of covered aircraft is limited to the Contractor’s share of loss as defined at paragraph (h) of this clause, except when one of the exclusions at paragraph (d) applies.

 

              (2)  The liability provisions of this clause take precedence over the liability provisions of Federal Acquisition Regulation (FAR) clause 52.245-1, Government Property, with respect to covered aircraft.

 

              (3)  The Contractor is not liable for loss, damage, or destruction of covered aircraft as the result of normal wear and tear, or intentional damage or destruction as required in the Schedule.

 

              (4)  Conditions for Government assumption of risk in flight are as follows:

 

                    (i)  The Contractor’s crewmembers are approved in writing by the Government flight representative (GFR).

 

                    (ii)  The flight is approved in writing by the GFR.

 

      (d)  Exclusions from the Government’s assumption of risk.  The Government’s assumption of risk under this clause shall not extend to damage, loss, or destruction of covered aircraft which—

 

              (1)  Is the result of willful misconduct or lack of good faith on the part of the Contractor’s managerial personnel, including the Contractor’s oversight of subcontractors;

 

              (2)  Is sustained during flight if either the flight or the crewmembers have not been approved in advance and in writing by the GFR, who has been authorized in accordance with the combined regulation/instruction entitled “Contractor’s Flight and Ground Operations”;

 

              (3)  Occurs in the course of transportation by rail, or by conveyance on public streets, highways, or waterways, unless the transportation is limited to the vicinity of the Contractor’s premises, and incidental to work performed under the contract as described in the Schedule;

 

              (4)  Is covered by insurance;

 

              (5)  Occurs after the Contracting Officer has, in writing, revoked the Government’s assumption of risk in accordance with paragraph (e)(3) of this clause; or

 

              (6)  Is sustained due to workmanship errors.

 

      (e)  Revoking the Government’s assumption of risk.

 

              (1)  The Contracting Officer, when finding that the Contractor’s managerial personnel have failed to comply with paragraph (b) of this clause, will issue a preliminary notice of revocation requiring the Contractor to comply with contract requirements within a timeframe specified by the Contracting Officer. In determining exposure to unreasonable conditions, the Contracting Officer will consider factors including, but not limited to, the following: lack of adequate hangar fire suppression or firefighting vehicles, failure to provide adequate procedures to the GFR, or systemic failure to comply with approved procedures.

 

              (2)  Upon receipt of the preliminary notice of revocation, the Contractor shall promptly correct the noncompliance or cited conditions, regardless of whether there is agreement that the conditions are unreasonable.

 

              (3)  If the Contracting Officer finds that the Contractor failed to correct the cited noncompliance or conditions within the specified timeframe, the Contracting Officer will issue a notice of revocation of the Government’s assumption of risk for any covered aircraft.

 

              (4)  If the Contracting Officer issues a notice of revocation pursuant to the terms of this clause—

 

                    (i)  The Contractor shall thereafter assume the entire risk for damage, loss, or destruction of the previously covered aircraft;

 

                    (ii)  Any costs incurred by the Contractor (including the costs of the Contractor’s self-insurance, insurance premiums paid to insure the Contractor’s assumption of risk, deductibles associated with such purchased insurance, etc.) to mitigate its risk are unallowable costs; and

 

                    (iii)  The liability provisions of the clause at FAR 52.245-1, Government Property, are not applicable to the aircraft impacted by the notice of revocation.

 

              (5)  The Contractor shall promptly notify the Contracting Officer when the noncompliance or cited conditions have been corrected. Within 3 days of receipt of the Contractor’s notice of correction, the Contracting Officer will notify the Contractor whether the Government will resume risk of loss. The Contracting Officer will determine that the noncompliance or cited conditions have been corrected prior to resuming assumption of risk.

 

              (6)  The notice of revocation does not relieve the Contractor of its obligation to comply with all other provisions of this clause, including the combined regulation/instruction entitled “Contractor’s Flight and Ground Operations.”

 

              (7)  Any disputes regarding the Contracting Officer’s notice of revocation shall be subject to FAR clause 52.233-1, Disputes.

 

      (f)  Contractor’s exclusion of insurance costs.  The Contractor warrants that the contract price does not and will not include, except as may be authorized in this clause, any charge or contingency reserve for insurance (including the Contractor’s share of loss) covering damage, loss, or destruction of covered aircraft when the risk has been assumed by the Government even if the assumption may be terminated for covered aircraft.

 

      (g)  Procedures in the event of damage, loss, or destruction.

 

              (1)  In the event of damage, loss, or destruction of covered aircraft, the Contractor shall take all reasonable steps to protect the aircraft from further damage, to separate damaged and undamaged aircraft, and to put all aircraft in the best possible order. Except in cases covered by paragraph (h)(2) of this clause, the Contractor shall furnish to the Contracting Officer a statement of—

 

                    (i)  The damaged, lost, or destroyed aircraft;

 

                    (ii)  The time and origin of the damage, loss, or destruction;

 

                    (iii)  All known interests in commingled property of which aircraft are a part; and

 

                    (iv)  The insurance, if any, covering the interest in commingled property.

 

              (2)  If a new production aircraft is damaged, lost, or destroyed before it has become a covered aircraft, the Government bears no responsibility for risk of loss.

 

              (3)  If a new production aircraft is damaged, lost, or destroyed after it has become a covered aircraft, the Contractor shall take action in accordance with the Contracting Officer’s written direction that the aircraft shall be—

 

                    (i)  Replaced;

 

                    (ii)  Repaired to the condition immediately prior to the damage; or

 

                    (iii)  Considered beyond economic repair. The Contracting Officer will decide whether further actions are required under the contract.

 

              (4)  If a covered aircraft that has been furnished by the Government to the Contractor is damaged, lost, or destroyed while covered, the Contractor shall take action in accordance with the Contracting Officer’s written direction that the aircraft shall be—

 

                    (i)  Repaired; or

 

                    (ii)  Considered beyond economic repair. The Contracting Officer will decide further actions required under the contract.

 

              (5)  The Contracting Officer will make an equitable adjustment for expenditures made in performing the obligations under this paragraph (g).

 

      (h)  Contractor’s share of loss.

 

              (1)  The Contractor’s share of loss or damage to covered aircraft, except for loss or damage caused by negligence of Government personnel, is the least of—

 

                    (i)  $200,000;

 

                    (ii)  20 percent of the price or estimated acquisition cost of affected aircraft; or

 

                    (iii)  20 percent of the price or estimated cost of the contract, task order, or delivery order.

 

              (2)  If the Government requires covered aircraft be replaced or repaired by the Contractor, any resulting equitable adjustment shall not include reimbursement of the Contractor’s share of loss.

 

              (3)  In the event the Government does not decide to replace or repair, the Contractor agrees to credit the contract price or pay the Government, as directed by the Contracting Officer, the least of—

 

                    (i)  $200,000;

 

                    (ii)  20 percent of the price or estimated acquisition cost of affected aircraft; or

 

                    (iii)  20 percent of the price or estimated cost of the contract, task order, or delivery order.

 

              (4)  The costs incurred by the Contractor for its share of the loss and for insuring against that loss are unallowable costs, including but not limited to—

 

                    (i)  The Contractor’s share of loss under the Government’s self-insurance;

 

                    (ii)  The costs of the Contractor’s self-insurance;

 

                    (iii)  The deductible for any Contractor-purchased insurance;

 

                    (iv)  Insurance premiums paid for Contractor-purchased insurance; and

 

                    (v)  Costs associated with determining, litigating, and defending against the Contractor’s liability.

 

      (i)  Reimbursement from a third party.  In the event the Contractor is reimbursed or compensated by a third party for damage, loss, or destruction of covered aircraft and has also been compensated by the Government, the Contractor shall equitably reimburse the Government. The Contractor shall do nothing to prejudice the Government’s right to recover against third parties for damage, loss, or destruction. Upon the request of the Contracting Officer or authorized representative, the Contractor shall at Government expense furnish to the Government all reasonable assistance and cooperation (including the prosecution of suit and the execution of instruments of assignment or subrogation) in obtaining recovery.

 

      (j)  Liability to third parties.  Unless the flight and crewmembers have been approved in writing by the GFR, the Contractor shall not be reimbursed for liability to third parties for loss or damage to property or for death or bodily injury caused by covered aircraft during flight, even if the Government has accepted such liability under any other provisions of the contract.

 

      (k)  Subcontracts.  The Contractor shall incorporate the requirements of this clause, including this paragraph (k), in subcontracts to include subcontracts for commercial products and commercial services, except—

 

              (1)  The Contractor shall not include paragraph (f) of this clause in subcontracts for commercial products or commercial services; and

 

              (2)  The Contractor shall not incorporate the requirements of this clause in subcontracts with Federal Aviation Administration (FAA) part 145 repair stations performing work pursuant to their FAA license.

 

(End of clause)

 

252.228-7002  Reserved

 

252.228-7003  Capture and Detention.

As prescribed in 228.371(c), use the following clause:

 

CAPTURE AND DETENTION (DEC 1991)

 

      (a)  As used in this clause—

 

              (1)  “Captured person” means any employee of the Contractor who is—

 

                    (i)  Assigned to duty outside the United States for the performance of this contract; and

 

                    (ii)  Found to be missing from his or her place of employment under circumstances that make it appear probable that the absence is due to the action of the force of any power not allied with the United States in a common military effort; or

 

                    (iii)  Known to have been taken prisoner, hostage, or otherwise detained by the force of such power, whether or not actually engaged in employment at the time of capture; provided, that at the time of capture or detention, the person was either—

 

                          (A)  Engaged in activity directly arising out of and in the course of employment under this contract; or

 

                          (B)  Captured in an area where required to be only in order to perform this contract.

 

              (2)  A “period of detention” begins with the day of capture and continues until the captured person is returned to the place of employment, the United States, or is able to be returned to the jurisdiction of the United States, or until the person's death is established or legally presumed to have occurred by evidence satisfactory to the Contracting Officer, whichever occurs first.

 

              (3)  “United States” comprises geographically the 50 states and the District of Columbia.

 

              (4)  “War Hazards Compensation Act” refers to the statute compiled in Chapter 12 of Title 42, U.S. Code (sections 1701-1717), as amended.

 

      (b)  If pursuant to an agreement entered into prior to capture, the Contractor is obligated to pay and has paid detention benefits to a captured person, or the person's dependents, the Government will reimburse the Contractor up to an amount equal to the lesser of—

 

              (1)  Total wage or salary being paid at the time of capture due from the Contractor to the captured person for the period of detention; or

 

              (2)  That amount which would have been payable if the detention had occurred under circumstances covered by the War Hazards Compensation Act.

 

      (c)  The period of detention shall not be considered as time spent in contract performance, and the Government shall not be obligated to make payment for that time except as provided in this clause.

 

      (d)  The obligation of the Government shall apply to the entire period of detention, except that it is subject to the availability of funds from which payment can be made.  The rights and obligations of the parties under this clause shall survive prior expiration, completion, or termination of this contract.

 

      (e)   The Contractor shall not be reimbursed under this clause for payments made if the employees were entitled to compensation for capture and detention under the War Hazards Compensation Act, as amended.

 

(End of clause)

 

252.228-7004  Reserved.

 

252.228-7005  Mishap Reporting and Investigation Involving Aircraft, Missiles, and Space Launch Vehicles.

As prescribed in 228.371(d), use the following clause:

 

MISHAP REPORTING AND INVESTIGATION INVOLVING AIRCRAFT, MISSILES, AND SPACE LAUNCH VEHICLES (NOV 2019)

 

      (a)  The Contractor shall report promptly to the Administrative Contracting Officer all pertinent facts relating to each mishap involving an aircraft, missile, or space launch vehicle being manufactured, modified, repaired, or overhauled in connection with this contract.

 

      (b)  If the Government conducts an investigation of the mishap, the Contractor shall cooperate and assist the Government's personnel until the investigation is complete.

 

      (c)  The Contractor shall include a clause in subcontracts under this contract to require subcontractor cooperation and assistance in mishap investigations.

 

(End of clause)

 

252.228-7006  Compliance with Spanish Laws and Insurance.

As prescribed at 228.371(e), use the following clause:

 

COMPLIANCE WITH SPANISH LAWS AND INSURANCE (DEC 1998)

 

      (a)  The requirements of this clause apply only if the Contractor is not a Spanish concern.

 

      (b)  The Contractor shall, without additional expense to the United States Government, comply with all applicable Spanish Government laws pertaining to sanitation, traffic, security, employment of labor, and all other laws relevant to the performance of this contract.  The Contractor shall hold the United States Government harmless and free from any liability resulting from the Contractor’s failure to comply with such laws.

 

      (c)  The Contractor shall, at its own expense, provide and maintain during the entire performance of this contract, all workmen’s compensation, employees’ liability, bodily injury insurance, and other required insurance adequate to cover the risk assumed by the Contractor.  The Contractor shall indemnify and hold harmless the United States Government from liability resulting from all claims for damages as a result of death or injury to personnel or damage to real or personal property related to the performance of this contract.

 

      (d)  The Contractor agrees to represent in writing to the Contracting Officer, prior to commencement of work and not later than 15 days after the date of the Notice to Proceed, that the Contractor has obtained the required types of insurance in the following minimum amounts.  The representation also shall state that the Contractor will promptly notify the Contracting Officer of any notice of cancellation of insurance or material change in insurance coverage that could affect the United States Government’s interests.

 

Type of Insurance

Coverage per Person

Coverage per Accident

Property Damage

Comprehensive General Liability

$300,000

$1,000,000

$100,000

 

      (e)  The Contractor shall provide the Contracting Officer with a similar representation for all subcontracts with non-Spanish concerns that will perform work in Spain under this contract.
      (f)  Insurance policies required herein shall be purchased from Spanish insurance companies or other insurance companies legally authorized to conduct business in Spain.  Such policies shall conform to Spanish laws and regulations and shall¾

 

              (1)  Contain provisions requiring submission to Spanish law and jurisdiction of any problem that may arise with regard to the interpretation or application of the clauses and conditions of the insurance policy;

 

              (2)  Contain a provision authorizing the insurance company, as subrogee of the insured entity, to assume and attend to directly, with respect to any person damaged, the legal consequences arising from the occurrence of such damages;

 

              (3)  Contain a provision worded as follows:  “The insurance company waives any right of subrogation against the United States of America that may arise by reason of any payment under this policy.”;

 

              (4)  Not contain any deductible amount or similar limitation; and

 

              (5)  Not contain any provisions requiring submission to any type of arbitration.

 

(End of clause)

 

252.228-7007  Public Aircraft and State Aircraft Operations—Liability.

As prescribed at 228.371(f), use the following clause:

 

PUBLIC AIRCRAFT AND STATE AIRCRAFT OPERATIONS—LIABILITY (MAR 2023)

 

      (a)  Definitions.  As used in this clause—

 

      “Civil aircraft” means an aircraft other than a public aircraft or state aircraft.

 

      “Public aircraft” means an aircraft that meets the definition in 49 U.S.C. 40102(a)(41) and the qualifications in 49 U.S.C. 40125. Specifically, a public aircraft means any of the following:

 

              (1)  An aircraft used only for the Government, except as provided in paragraphs (5) and (7) of this definition.

 

              (2)  An aircraft owned by the Government and operated by any person for purposes related to crew training, equipment development, or demonstration, except as provided in paragraph (7) of this definition.

 

              (3)  An aircraft owned and operated by the government of a State, the District of Columbia, or a territory or possession of the United States or a political subdivision of one of these governments, except as provided in paragraph (7) of this definition.

 

              (4)  An aircraft exclusively leased for at least 90 continuous days by the government of a State, the District of Columbia, or a territory or possession of the United States or a political subdivision of one of these governments, except as provided in paragraph (7) of this definition.

 

              (5)  An aircraft owned or operated by the armed forces or chartered to provide transportation or other commercial air service to the armed forces under the conditions specified by 49 U.S.C. 40125(c). In the preceding sentence, the term “other commercial air service” means an aircraft operation that—

 

                    (i)  Is within the United States territorial airspace;

 

                    (ii)  The Administrator of the Federal Aviation Administration determines is available for compensation or hire to the public; and

 

                    (iii)  Must comply with all applicable civil aircraft rules under title 14, Code of Federal Regulations.

 

              (6)  An unmanned aircraft that is owned and operated, or exclusively leased for at least 90 continuous days, by an Indian Tribal government, as defined in section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122), except as provided in paragraph (7) of this definition.

 

              (7)  As described in 49 U.S.C. 40125(b), an aircraft described in paragraph (1), (2), (3), or (4) of this definition does not qualify as a public aircraft when the aircraft is used for commercial purposes or to carry an individual other than a crewmember or a qualified non-crewmember.

 

      “Public aircraft operation” means operation of an aircraft that meets the legal definition of public aircraft established in 49 U.S.C. 40102(a)(41) and the legal qualifications for public aircraft status outlined in 49 U.S.C. 40125.

 

      “State aircraft” means an aircraft operated by the Government for sovereign, noncommercial purposes such as military, customs, and police services. Military aircraft are afforded status as state aircraft. In very rare circumstances, DoD-contracted aircraft may be designated, in writing, by a responsible Government official pursuant to DoD Directive 4500.54E, DoD Foreign Clearance Program, to be operated in state aircraft status, and such status cannot be deemed without a written designation by an authorized Government official.

 

      (b)  Combined regulation/instruction.  Upon award, for contract performance to be conducted as a public aircraft operation, the Contractor shall be bound by the operating procedures contained in the combined regulation/instruction entitled “Contractor’s Flight and Ground Operations” (Air Force Instruction 10-220, Army Regulation 95-20, NAVAIR Instruction 3710.1 (Series), Coast Guard Instruction M13020.3 (Series), and Defense Contract Management Agency Instruction 8210-1 (Series)) in effect on the date of contract award.

 

      (c)  Contractor liability for operations for contract performance conducted as public aircraft operations or state aircraft operations.

 

              (1)  The Contractor assumes responsibility for all damage or injury to persons or property, including the Contractor’s employees and property, and Government personnel and property, occasioned through the use, maintenance, and operation of the Contractor’s aircraft or other equipment by, or the action of, the Contractor or the Contractor’s employees and agents.

 

              (2)  The Contractor, at the Contractor’s expense, shall maintain adequate public liability and property damage insurance, including hull insurance for the Contractor’s aircraft, during the duration of this contract, insuring the Contractor against all claims for injury or damage.

 

              (3)  The Contractor shall maintain workers’ compensation and other legally required insurance with respect to the Contractor’s own employees and agents.

 

              (4)  The Government will in no event be liable or responsible for damage or injury to any person or property occasioned through the use, maintenance, or operation of any aircraft or other equipment by, or the action of, the Contractor or the Contractor’s employees and agents in performing under this contract, and the Government shall be indemnified and saved harmless against claims for damage or injury in such cases.

 

(End of clause)

 

 

 


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