[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 5027 Introduced in Senate (IS)]
<DOC>
117th CONGRESS
2d Session
S. 5027
To address the health needs of incarcerated women related to pregnancy
and childbirth, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
September 29, 2022
Ms. Klobuchar (for herself and Ms. Collins) introduced the following
bill; which was read twice and referred to the Committee on the
Judiciary
_______________________________________________________________________
A BILL
To address the health needs of incarcerated women related to pregnancy
and childbirth, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Protecting the Health and Wellness
of Babies and Pregnant Women in Custody Act''.
SEC. 2. DEFINITIONS.
In this Act:
(1) In custody.--The term ``in custody'', with respect to
an individual, means that the individual is under the
supervision of a Federal, State, Tribal, or local correctional
facility, including a pretrial, juvenile, medical, or mental
health facility and a facility operated under a contract with
the Federal Government or a State, Tribal, or local government.
(2) Other pregnancy outcome.--The term ``other pregnancy
outcome'' means a pregnancy that ends in stillbirth,
miscarriage, or ectopic pregnancy.
(3) Postpartum recovery.--The term ``postpartum recovery''
has the meaning given that term in section 4051(c) of title 18,
United States Code, as added by this Act.
(4) Restraints.--The term ``restraints'' means any physical
or mechanical device used to control the movement of an
incarcerated pregnant woman's body, limbs, or both.
(5) Restrictive housing.--The term ``restrictive housing''
has the meaning given that term in section 4322 of title 18,
United States Code, as added by this Act.
SEC. 3. DATA COLLECTION.
(a) In General.--Beginning not later than 1 year after the date of
enactment of this Act, pursuant to the authority under section 302 of
title I of the Omnibus Crime Control and Safe Streets Act of 1968 (34
U.S.C. 10132), the Director of the Bureau of Justice Statistics shall
include in the National Prisoner Statistics Program and Annual Survey
of Jails statistics relating to the health needs of incarcerated
pregnant women in the criminal justice system at the Federal, State,
Tribal, and local levels, including--
(1) demographic and other information about incarcerated
women who are pregnant, in labor, or in postpartum recovery,
including the race, ethnicity, and age of the woman;
(2) the provision of pregnancy care and services provided
for such women, including--
(A) whether prenatal, delivery, and post-delivery
check-up visits were scheduled and provided;
(B) whether a social worker, psychologist, doula or
other support person was offered and provided during
pregnancy and delivery and post-delivery;
(C) whether a pregnancy or parenting program was
offered and provided during pregnancy;
(D) whether a nursery or residential program to
keep mothers and infants together post-delivery was
offered and whether such a nursery or residential
program was provided;
(E) the number of days the mother stayed in the
hospital post-delivery;
(F) the number of days the infant remained with the
mother post-delivery; and
(G) the number of days the infant remained in the
hospital after the mother was discharged;
(3) the location of the nearest hospital with a licensed
obstetrician-gynecologist in proximity to where the
incarcerated pregnant woman is housed and the length of travel
required to transport the woman;
(4) whether a written policy or protocol is in place--
(A) to respond to unexpected childbirth, labor,
deliveries, or medical complications related to the
pregnancies of incarcerated pregnant women; and
(B) for incarcerated pregnant women experiencing
labor or medical complications related to pregnancy
outside of a hospital;
(5) the number of incarcerated women who are determined by
a health care professional to have a high-risk pregnancy;
(6) the total number of incarcerated pregnant women and the
number of incarcerated women who became pregnant while
incarcerated;
(7) the number of incidents in which an incarcerated woman
who is pregnant, in labor, or in postpartum recovery is placed
in restrictive housing, the reason for such restriction or
placement, and the circumstances under which each incident
occurred, including the duration of time in restrictive
housing, during--
(A) pregnancy;
(B) labor;
(C) delivery;
(D) postpartum recovery; and
(E) the 6-month period after delivery; and
(8) the disposition of the custody of the infant post-
delivery.
(b) Personally Identifiable Information.--Data collected under this
section may not contain any personally identifiable information of any
incarcerated pregnant woman or woman in postpartum recovery.
SEC. 4. CARE FOR FEDERALLY INCARCERATED WOMEN RELATED TO PREGNANCY AND
CHILDBIRTH.
(a) In General.--The Director of the Bureau of Prisons shall ensure
that appropriate services and programs, as described in subsection (b),
are provided to women in custody, to address the health and safety
needs of such women related to pregnancy and childbirth. The warden of
each Bureau of Prisons facility that houses women shall ensure that
these services and programs are implemented for women in custody at
that facility.
(b) Services and Programs Provided.--The services and programs
described in this subsection are the following:
(1) Access to complete appropriate health services for the
life cycle of women.--The Director of the Bureau of Prisons--
(A) shall provide to each woman in custody--
(i) pregnancy testing and testing for
sexually transmitted diseases; and
(ii) the option to decline such testing;
and
(B) at an inmate's request, shall provide
contraception.
(2) Compliance with protocols relating to health of a
pregnant woman.--On confirmation of the pregnancy of a woman in
custody by clinical diagnostics and assessment, the chief
health care professional of the Bureau of Prisons facility in
which the woman is housed shall ensure that--
(A) a summary of all appropriate protocols directly
pertaining to the safety and well-being of the woman
are provided to the woman;
(B) such protocols are complied with; and
(C) such protocols include an assessment of undue
safety risks and necessary changes to accommodate the
woman where and when appropriate, as it relates to--
(i) housing or transfer to a lower bunk for
safety reasons;
(ii) appropriate bedding or clothing to
respond to the woman's changing physical
requirements and the temperature in housing
units;
(iii) regular access to water and
bathrooms;
(iv) a diet that--
(I) complies with the nutritional
standards established by the Secretary
of Agriculture and the Secretary of
Health and Human Services in the
Dietary Guidelines for Americans report
published pursuant to section 301(a)(3)
of the National Nutrition Monitoring
and Related Research Act of 1990 (7
U.S.C. 5341(a)(3)); and
(II) includes--
(aa) any appropriate
dietary supplement, including
prenatal vitamins;
(bb) timely and regular
nutritious meals;
(cc) additional caloric
content in meals provided;
(dd) a prohibition on
withholding food from the woman
or serving any food that is
used as a punishment, including
nutraloaf or any food similar
to nutraloaf that is not
considered a nutritious meal;
and
(ee) such other
modifications to the diet of
the woman as the Director of
the Bureau of Prisons
determines to be necessary
after consultation with the
Secretary of Health and Human
Services and consideration of
such recommendations as the
Secretary may provide;
(v) modified recreation and transportation,
in accordance with standards within the
obstetrical and gynecological care community,
to prevent overexertion or prolonged periods of
inactivity; and
(vi) such other changes to living
conditions as the Director of the Bureau of
Prisons may require after consultation with the
Secretary of Health and Human Services and
consideration of such recommendations as the
Secretary may provide.
(3) Education and support services.--
(A) Pregnancy in custody.--A woman who is pregnant
at intake or who becomes pregnant while in custody
shall, not later than 14 days after the pregnant woman
notifies a Bureau of Prisons official of the pregnancy,
receive prenatal education, counseling, and birth
support services provided by a provider trained to
provide such services, including--
(i) information about the parental rights
of the woman, including the right to place the
child in kinship care, and notice of the rights
of the child;
(ii) information about family preservation
support services that are available to the
woman;
(iii) information about the nutritional
standards referred to in paragraph (2)(C)(iv);
(iv) information pertaining to the health
and safety risks of pregnancy, childbirth, and
parenting, including postpartum depression;
(v) information on breast-feeding,
lactation, and breast health;
(vi) appropriate educational materials,
resources, and services related to pregnancy,
childbirth, and parenting;
(vii) information and notification services
for incarcerated parents regarding the risk of
debt repayment obligations associated with
their child's participation in social welfare
programs, including assistance under any State
program funded under part A of title IV of the
Social Security Act (42 U.S.C. 601 et seq.) or
benefits under the supplemental nutrition
assistance program, as defined in section 3 of
the Food and Nutrition Act of 2008 (7 U.S.C.
2012), or any State program carried out under
that Act; and
(viii) information from the Office of Child
Support Enforcement of the Department of Health
and Human Services regarding seeking or
modifying child support while incarcerated,
including how to participate in the Bureau of
Prison's Inmate Financial Responsibility
Program under subpart B of part 545 of title
28, Code of Federal Regulations (or any
successor program).
(B) Birth while in custody or prior to custody.--A
woman who, while in custody or during the 6-month
period immediately preceding intake, gave birth or
experienced any other pregnancy outcome shall receive
counseling provided by a licensed or certified provider
trained to provide such services, including--
(i) information about the parental rights
of the woman, including the right to place the
child in kinship care, and notice of the rights
of the child; and
(ii) information about family preservation
support services that are available to the
woman.
(4) Evaluations.--
(A) In general.--Each woman in custody who is
pregnant or whose pregnancy results in a birth or any
other pregnancy outcome during the 6-month period
immediately preceding intake or any time in custody
thereafter shall be evaluated as soon as practicable
after intake or confirmation of pregnancy through
evidence-based screening and assessment for substance
use disorders or mental health conditions, including
postpartum depression or depression related to
pregnancy, birth, or any other pregnancy outcome or
early child care.
(B) Risk factors.--Screening under subparagraph (A)
shall include identification of any of the following
risk factors:
(i) An existing mental or physical health
condition or substance use disorder.
(ii) Being underweight or overweight.
(iii) Multiple births or a previous still
birth.
(iv) A history of preeclampsia.
(v) A previous Caesarean section.
(vi) A previous miscarriage.
(vii) Being older than 35 or younger than
15.
(viii) Being diagnosed with the human
immunodeficiency virus, hepatitis, diabetes, or
hypertension.
(ix) Such other risk factors as the chief
health care professional of the Bureau of
Prisons facility that house the woman may
determine to be appropriate.
(5) Unexpected births rulemaking.--The Director of the
Bureau of Prisons shall provide services to respond to
unexpected childbirth deliveries, labor complications, and
medical complications related to pregnancy if a woman in
custody is unable to access a hospital in a timely manner in
accordance with rules promulgated by the Attorney General,
which shall be promulgated not later than 180 days after the
date of enactment of this Act.
(6) Treatment.--The Director of the Bureau of Prisons shall
use best efforts to provide a woman in custody who is pregnant
and diagnosed with having a substance use disorder or a mental
health disorder with appropriate evidence-based treatment.
SEC. 5. USE OF RESTRICTIVE HOUSING ON INCARCERATED PREGNANT WOMEN
DURING PREGNANCY, LABOR, AND POSTPARTUM RECOVERY
PROHIBITED.
(a) In General.--Section 4322 of title 18, United States Code, is
amended to read as follows:
``Sec. 4322. Use of restrictive housing on incarcerated women during
the period of pregnancy, labor, and postpartum recovery
prohibited
``(a) Prohibition.--Except as provided in subsection (b), during
the period beginning on the date on which pregnancy is confirmed by a
health care professional and ending not earlier than 12 weeks after
delivery, an incarcerated woman in the custody of the Bureau of
Prisons, or in the custody of the United States Marshals Service
pursuant to section 4086, shall not be held in restrictive housing.
``(b) Exceptions.--
``(1) Restrictive housing.--Subject to paragraph (4), the
prohibition under subsection (a) relating to restrictive
housing shall not apply if the Director of the Bureau of
Prisons or a senior Bureau of Prisons official overseeing
women's health and services, in consultation with senior
officials in health services, makes an individualized
determination that restrictive housing is required as a
temporary response to behavior that poses a serious and
immediate risk of physical harm.
``(2) Review.--The official who makes a determination under
subparagraph (A) shall review such determination daily for the
purpose of removing an incarcerated woman as quickly as
feasible from restrictive housing.
``(3) Restrictive housing plan.--The official who makes a
determination under subparagraph (A) shall develop an
individualized plan to move an incarcerated woman to less
restrictive housing within a reasonable amount of time.
``(4) Prohibition on solitary confinement.--An incarcerated
woman who is placed in restrictive housing under this
subsection may not be placed in solitary confinement if the
incarcerated woman is in her third trimester.
``(c) Reports.--
``(1) Report to directors and health care professional
after placement in restrictive housing.--Not later than 30 days
after the date on which an incarcerated woman is placed in
restrictive housing under subsection (b), the applicable
official identified in subsection (b)(1), correctional officer,
or United States Marshal shall submit to the Director of the
Bureau of Prisons or the Director of the United States Marshals
Service, as applicable, and to the health care professional
responsible for the health and safety of the woman, a written
report which describes the facts and circumstances surrounding
the restrictive housing placement, and includes the following:
``(A) The reasoning upon which the determination
for the placement was made.
``(B) The details of the placement, including
length of time of placement and how frequently and how
many times the determination was made subsequent to the
initial determination to continue the restrictive
housing placement.
``(C) A description of all attempts to use
alternative interventions and sanctions before the
restrictive housing was used.
``(D) Any resulting physical effects on the woman
observed by or reported by the health care professional
responsible for the health and safety of the woman.
``(E) Strategies the facility is putting in place
to identify more appropriate alternative interventions
should a similar situation arise again.
``(2) Report to congress.--Not later than 180 days after
the date of enactment of the Protecting the Health and Wellness
of Babies and Pregnant Women in Custody Act, and every 180 days
thereafter for a period of 10 years, the Attorney General shall
submit to the Committee on the Judiciary of the Senate and the
Committee on the Judiciary of the House of Representatives a
report on the placement of incarcerated women in restrictive
housing under subsection (b), which shall include the
information described in paragraph (1).
``(d) Notice.--Not later than 24 hours after the confirmation of
the pregnancy of an incarcerated woman by a health care professional,
that woman shall be notified, orally and in writing, by an appropriate
health care professional, correctional officer, or United States
Marshal, as applicable--
``(1) of the restrictions on the use of restrictive housing
placements under this section;
``(2) of the right of the incarcerated woman to make a
confidential report of a violation of restrictions on the use
of restrictive housing placement; and
``(3) that the facility staff have been advised of all
rights of the incarcerated woman under subsection (a).
``(e) Violation Reporting Process.--Not later than 180 days after
the date of enactment of the Protecting the Health and Wellness of
Babies and Pregnant Women in Custody Act, the Director of the Bureau of
Prisons and the Director of the United States Marshals Service shall
establish processes through which an incarcerated person may report a
violation of this section.
``(f) Notification of Rights.--The warden of the Bureau of Prisons
facility where a pregnant woman is in custody shall notify necessary
facility staff of the pregnancy and of the rights of the incarcerated
pregnant woman under subsection (a).
``(g) Retaliation.--It shall be unlawful for any Bureau of Prisons
or United States Marshals Service employee to retaliate against an
incarcerated person for reporting under the processes established under
subsection (e) a violation of subsection (a).
``(h) Education.--Not later than 90 days after the date of
enactment of the Protecting the Health and Wellness of Babies and
Pregnant Women in Custody Act, the Director of the Bureau of Prisons
and the Director of the United States Marshals Service shall each--
``(1) develop education guidelines regarding the physical
and mental health needs of incarcerated pregnant women, and the
use of restrictive housing placements on incarcerated women
during the period of pregnancy, labor, and postpartum recovery;
and
``(2) incorporate such guidelines into appropriate
education programs.
``(i) Definition.--In this section, the term `restrictive housing'
means any type of detention that involves--
``(1) removal from the general inmate population, whether
voluntary or involuntary;
``(2) placement in a locked room or cell, whether alone or
with another inmate; and
``(3) inability to leave the room or cell for the vast
majority of the day.''.
(b) Clerical Amendment.--The table of sections for chapter 317 of
title 18, United States Code, is amended by striking the item relating
to section 4322 and inserting the following:
``4322. Use of restrictive housing on incarcerated women during the
period of pregnancy, labor, and postpartum
recovery prohibited.''.
SEC. 6. TREATMENT OF WOMEN WITH HIGH-RISK PREGNANCIES.
(a) In General.--Chapter 303 of title 18, United States Code, is
amended by adding at the end the following:
``Sec. 4051. Treatment of incarcerated pregnant women
``(a) High-Risk Pregnancy Health Care.--The Director of the Bureau
of Prisons shall ensure that each incarcerated pregnant woman receives
an evaluation to determine if the pregnancy is high-risk and, if so,
receives healthcare appropriate for a high-risk pregnancy, including
obstetrical and gynecological care, during pregnancy and postpartum
recovery.
``(b) High-Risk Pregnancies.--
``(1) In general.--The Director of the Bureau of Prisons
shall transfer to a Residential Reentry Center with adequate
health care during her pregnancy and postpartum recovery any
incarcerated woman who--
``(A) is determined by a health care professional
to have a high-risk pregnancy; and
``(B) agrees to be transferred.
``(2) Priority.--The Residential Reentry Center to which an
incarcerated pregnant woman is transferred under paragraph (1)
shall, to the extent practicable, be in a geographical location
that is close to the family members of the incarcerated
pregnant woman.
``(3) Transportation.--To transport an incarcerated
pregnant woman to a Residential Reentry Center, the Director of
the Bureau of Prisons shall provide to the woman a mode of
transportation that a healthcare professional has determined to
be safe for transporting the pregnant woman.
``(4) Service of sentence.--Any time accrued at a
Residential Reentry Center or alternative housing as a result
of a transfer made under this section shall be credited toward
service of the incarcerated pregnant woman's sentence.
``(c) Definitions.--In this section:
``(1) Health care professional.--The term `health care
professional' means--
``(A) a doctor of medicine or osteopathy who is
authorized to diagnose and treat physical or mental
health conditions under the laws of the State in which
the doctor practices and where the facility is located;
``(B) any physician's assistant or nurse
practitioner who is supervised by a doctor of medicine
or osteopathy described in subparagraph (A); or
``(C) any other person determined by the Director
of the Bureau of Prisons to be capable of providing
health care services.
``(2) High-risk pregnancy.--The term `high-risk pregnancy'
means, with respect to an incarcerated woman, that the
pregnancy threatens the health or life of the woman or
pregnancy, as determined by a health care professional.
``(3) Postpartum recovery.--The term `postpartum recovery'
means the 3-month period beginning on the date on which an
incarcerated pregnant woman gives birth, or longer as
determined by a health care professional following delivery,
and shall include the entire period that the incarcerated
pregnant woman is in the hospital or infirmary.
``(4) Residential reentry center.--The term `Residential
Reentry Center' means a Bureau of Prisons contracted
residential reentry center.''.
(b) Conforming Amendment.--The table of sections for chapter 303 of
title 18, United States Code, is amended by adding at the end the
following:
``4051. Treatment of incarcerated pregnant women.''.
SEC. 7. REPORTING REQUIREMENT REGARDING CLAIMS FILED BY PREGNANT
INMATES.
The Director of the Federal Bureau of Prisons shall make publicly
available on the website of the Federal Bureau of Prisons on an annual
basis the following information:
(1) The total number of Administrative Remedy appeals
related to pregnant inmates that were filed during the previous
year.
(2) The total number of institution-level Requests for
Administrative Remedy related to pregnant inmates that were
filed during the previous year.
(3) The total number of informal requests for
administrative remedy related to pregnant inmates that were
filed during the previous year.
(4) The total number of requests or appeals related to
pregnant inmates during the previous year that were not
resolved before the inmate gave birth or that were mooted
because the inmate's pregnancy ended.
(5) The average amount of time that each category of
request or appeal took to resolve during the previous year.
(6) The shortest and longest amounts of time that a request
or appeal in each category that was resolved in the last year
took to resolve.
SEC. 8. EDUCATION AND TECHNICAL ASSISTANCE.
The Director of the National Institute of Corrections shall provide
education and technical assistance, in conjunction with the appropriate
public agencies, at State and local correctional facilities that house
women and facilities in which incarcerated women go into labor and give
birth, in order to educate the employees of such facilities, including
health personnel, on the dangers and potential mental health
consequences associated with the use of restrictive housing and
restraints on incarcerated women during pregnancy, labor, and
postpartum recovery, and on alternatives to the use of restraints and
restrictive housing placement.
SEC. 9. BUREAU OF PRISONS STAFF AND UNITED STATES MARSHALS TRAINING.
(a) Bureau of Prisons Training.--
(1) In general.--
(A) Initial training.--Not later than 180 days
after the date of enactment of this Act, the Director
of the Bureau of Prisons shall provide training to
carry out the requirements of this Act and the
amendments made by this Act to each correctional
officer at any Bureau of Prisons facility that houses
women who is employed on the date of enactment of this
Act.
(B) Subsequent training.--After the initial
training provided under subparagraph (A), the Director
of the Bureau of Prisons shall provide training to
carry out the requirements of this Act and the
amendments made by this Act twice each year to each
correctional officer at any Bureau of Prisons facility
that houses women.
(2) New hires.--
(A) Definition.--In this paragraph, the term
``covered new correctional officer'' means an
individual appointed to a position as a correctional
officer at a Bureau of Prisons facility that houses
women on or after the date that is 180 days after the
date of enactment of this Act.
(B) Training.--The Director of the Bureau of
Prisons shall train each covered new correctional
officer to carry out the requirements of this Act and
the amendments made by this Act not later than 30 days
after the date on which the covered new correctional
officer is appointed.
(b) United States Marshals Training.--
(1) In general.--On and after the date that is 180 days
after the date of enactment of this Act, the Director of the
United States Marshals Service shall ensure that each Deputy
United States Marshal has received trained pursuant to the
guidelines described in subsection (c).
(2) New hires.--
(A) Definition.--In this paragraph, the term ``new
Deputy United States Marshal'' means an individual
appointed to a position as a Deputy United States
Marshal after the date of enactment of this Act.
(B) Training.--Not later than 30 days after the
date on which a new Deputy United States Marshal is
appointed, the new Deputy United States Marshal shall
receive training pursuant to the guidelines described
in subsection (c).
(c) Guidelines.--
(1) In general.--The Director of the Bureau of Prisons and
the United States Marshals Service shall each develop
guidelines on the treatment of incarcerated women during
pregnancy, labor, and postpartum recovery and incorporate such
guidelines in the training required under this section.
(2) Contents.--The guidelines developed under paragraph (1)
shall include guidance on--
(A) the transportation of incarcerated pregnant
women;
(B) housing of incarcerated pregnant women;
(C) nutritional requirements for incarcerated
pregnant women; and
(D) the right of a health care professional to
request that restraints not be used.
SEC. 10. GAO STUDY ON STATE AND LOCAL CORRECTIONAL FACILITIES.
The Comptroller General of the United States shall conduct a study
of services and protections provided for pregnant incarcerated women in
local and State correctional settings, including--
(1) policies on--
(A) obstetrical and gynecological care;
(B) education on nutritional issues and health and
safety risks associated with pregnancy;
(C) mental health and substance use treatment;
(D) access to prenatal and post-delivery support
services and programs; and
(E) the use of restraints and restrictive housing
placement; and
(2) the extent to which the intent of such policies is
fulfilled.
SEC. 11. GAO STUDY ON FEDERAL PRETRIAL DETENTION FACILITIES.
(a) Study.--The Comptroller General of the United States shall
conduct a study of services and protections provided for pregnant women
who are incarcerated in Federal pretrial detention facilities, which
shall examine--
(1) what available data indicate about pregnant women
detained or held in Federal pretrial detention facilities;
(2) existing United States Marshals Service policies and
standards that address the care of pregnant women in Federal
pretrial detention facilities; and
(3) what is known about the care provided to pregnant women
in Federal pretrial detention facilities.
(b) Report and Best Practices.--Not later than 2 years after the
date of enactment of this Act, the Comptroller General shall submit to
the Committee on the Judiciary of the Senate and the Committee on the
Judiciary of the House of Representatives a report of the results of
the study conducted under subsection (a), which shall--
(1) identify best practices for ensuring that Federal
pretrial detention facilities implement services and
protections for pregnant women consistent with this Act and the
amendments made by this Act; and
(2) provide recommendations on how to implement these best
practices among all Federal pretrial detention facilities.
(c) Definition.--For purposes of this section, the term ``Federal
pretrial detention facilities'' includes State, local, private, or
other facilities under contract with the United States Marshals Service
for the purpose of housing Federal pretrial detainees.
SEC. 12. DETERMINATION OF BUDGETARY EFFECTS.
The budgetary effects of this Act, for the purpose of complying
with the Statutory Pay-As-You-Go Act of 2010, shall be determined by
reference to the latest statement titled ``Budgetary Effects of PAYGO
Legislation'' for this Act, submitted for printing in the Congressional
Record by the Chairman of the Senate Budget Committee, provided that
such statement has been submitted prior to the vote on passage.
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