September 2010 Guidance Note on Authorisation to Operate a Multilateral Trading Facility 1 Guidance Note On Authorisation To Operate A Multilateral Trading Facility Contents 1. Introduction 2 2. What is an MTF? 4 3. Authorisation Process in respect of the operation of an MTF in Ireland 4. 5 Specific Information and Documentation required by the Central Bank of Ireland in order to assess a proposal to operate an 5. MTF 7 Capital Requirements/Financial Resources 9 Annex 1 10 Page 1 of 33 2 Guidance Note On Authorisation To Operate A Multilateral Trading Facility GUIDANCE NOTE Authorisation to Operate a Multilateral Trading Facility 1. Introduction The concept of a Multilateral Trading Facility (MTF) was first introduced into Irish law in the Statutory Instrument No. 60 of 2007 Regulations entitled European Communities (Markets in Financial Instruments) Regulations 2007 (MiFID Regulations ) (as amended) which came into 1 force on 1 November 2007. The Central Bank of Ireland is the competent authority in Ireland for the authorisation of an investment firm or a market operator of a regulated market that proposes to operate an MTF under the MiFID Regulations. Please note that the MiFID Regulations may not be the only Irish financial services legislation that may apply to the proposed operation of an MTF. This Guidance Note only provides guidance in relation to the requirements of the Central Bank of Ireland in respect of the authorisation process applicable to an investment firm proposing to operate an MTF in Ireland under the MiFID Regulations. This Guidance Note does not address the possibility of a market operator of an authorised regulated market or applicant regulated market proposing to operate an MTF in Ireland under the MiFID Regulations. While the approach will be similar in many ways, the particular circumstances of a market operator may lead to certain differences and these will be discussed bilaterally with the market operator. It is not the policy of the Central Bank of Ireland to provide legal advice on matters arising pursuant to the MiFID Regulations or any other aspect of Irish financial services legislation. 1 The guidance set out in this For ease of reference, references to MiFID Regulations to include, where appropriate, reference to Commission Regulation (EC) No 1287/2006 of 10 August 2006. Page 2 of 33 3 Guidance Note On Authorisation To Operate A Multilateral Trading Facility Guidance Note should not be construed as legal advice or a legal interpretation of the MiFID Regulations. It is a matter for any person who may fall within the scope of the MiFID Regulations to seek legal advice regarding the application or otherwise of the MiFID Regulations or any other aspect of Irish financial services legislation to their particular set of circumstances. Page 3 of 33 4 Guidance Note On Authorisation To Operate A Multilateral Trading Facility 2. What is an MTF? Regulation 3 of the MiFID Regulations defines an MTF as “a multilateral system, operated by an investment firm2 or a market operator3, which brings together multiple third-party buying and selling interests in financial instruments4, in the system and in accordance with nondiscretionary rules, in a way that results in a contract”. In practice, this definition would include MTF’s (for example, trading platforms, crossing networks or matching engines) operated by either an investment firm or a market operator which bring together multiple parties that wish to buy or sell financial instruments. Such parties are brought together within the MTF operator's system. An MTF does not include bilateral systems where an investment firm enters into every trade on its own account (as opposed to acting in the capacity of a riskless counterparty interposed between the buyer and the seller). For there to be an MTF the buying and selling of the financial instruments in these systems must be governed by non-discretionary rules in a way that results in contracts. As the rules must be non-discretionary, once the orders and quotes are received within the system an MTF operator must have no discretion in determining how they interact. The MTF operator must instead establish rules governing how the system operates and the characteristics of the quotes and orders (for example, their price and time of receipt in the system) that determine the resultant trades. 2 3 4 As defined in Regulation 3 of the MiFID Regulations, “investment firm” means any person, other than a tied agent, which person’s regular occupation or business is the provision of one or more investment services to third parties on a professional basis, or the activity of dealing on own account on a professional basis, but does not include a natural person subject to certain caveats as set out in Regulation 3 of the MiFID Regulations. As defined in Regulation 3 of the MiFID Regulations, “market operator”, in relation to a regulated market, means (a) a person who operates the business of the regulated market other than a regulated market described in subparagraph (b), or (b) the regulated market if it is a legal person and itself operates the business of the regulated market. As defined in Regulation 3 of the MiFID Regulations, a “regulated market” means a multilateral system operated or managed by a market operator, which (a) brings together, or facilitates the bringing together of, multiple third-party buying and selling interests in financial instruments, in the system and in accordance with its non-discretionary rules, in a way that results in a contract in respect of the financial instruments admitted to trading under its rules or systems, and (b) is authorised and functions regularly and in accordance with Part 6 of the MiFID Regulations. As defined in Regulation 3 of the MiFID Regulations, “financial instruments” means the instruments specified in Part 3 of Schedule 1 of the MiFID Regulations. Page 4 of 33 5 Guidance Note On Authorisation To Operate A Multilateral Trading Facility 3. Authorisation Process in respect of the operation of an MTF in Ireland The operation of an MTF requires specific authorisation by the Central Bank of Ireland under the MiFID Regulations5. The authorisation process for operating an MTF is dependent on the proposed operator of the MTF i.e., whether the intended operator is: (a) already authorised as an investment firm under the MiFID Regulations; or (b) an applicant seeking authorisation as a proposed investment firm under the MiFID Regulations. Each potential operator (irrespective of its current authorisation status under the MiFID Regulations) of an MTF must consider whether the operation of its proposed business model: meets the definition of an MTF (as well as meeting the definition of ‘investment firm’ in the MiFID Regulations) and therefore requires specific authorisation, or an extension of an existing authorisation, under the MiFID Regulations; complies with the Central Bank of Ireland’s requirements; and is capable of complying with, and adhering to, the requirements that must be satisfied on an ongoing basis. (a) Authorised Investment Firm An authorised investment firm proposing to operate an MTF will require an extension of its existing authorisation under the MiFID Regulations. The firm must submit a detailed proposal regarding this intended new business activity to its existing supervisors within the relevant department of the Central Bank of Ireland. The proposal should contain at least all of the documentation/information specified in Annex 1 of this Guidance Note. The Central Bank of Ireland will assess the proposal in the context of the existing authorisation of the investment firm under the MiFID Regulations. 5 Refer to Regulation 7 (Requirement for Authorisation) and Schedule 1 of the MiFID Regulations. Page 5 of 33 6 Guidance Note On Authorisation To Operate A Multilateral Trading Facility (b) Applicant Investment Firms An applicant investment firm proposing to operate an MTF must submit an application for authorisation as an investment firm under Regulation 11 of the MiFID Regulations to the Central Bank of Ireland. Applicant investment firms should: Refer to the ‘Guidance Note on the Completing and Submitting an Application for Authorisation under The European Communities (Markets in Financial Instruments) Regulations 2007 and Commission Regulation (EC) No 1287/2006 of 10 August 2007’ (the ‘Application Guidance Note’); and Complete the ‘Application for Authorisation under Regulation 11 of the European Communities (Markets in Financial Instruments) Regulations 2007’ (the ‘Application Form’). which are available on the Central Bank of Ireland’s website (www.centralbank.ie). The Application Guidance Note sets out the application process and includes guidance on completing the application form and the documentation and information to be submitted. Such information and documentation include inter alia: A completed application form; A detailed business plan; and Draft procedures, policies and agreements as specified in the application form. Additional requirements apply for investment firms that propose operating an MTF. Please refer to Annex 1 hereto. Applicant investment firms should submit a completed Annex 1 together with the relevant documentation/information. (The required information may be incorporated into the aforementioned business plan.) In any event, the activity of operating an MTF will be assessed in conjunction with the basic requirements for the grant of authorisation as an investment firm under the MiFID Regulations. The operation of an MTF may be the sole investment service envisaged by an applicant investment firm. Alternatively, the Page 6 of 33 7 Guidance Note On Authorisation To Operate A Multilateral Trading Facility operation of an MTF may form part of a broader range of investment services or other activities that may require authorisation under the MiFID Regulations and/or other Irish financial services legislation. All applicant investment firms are advised to contact the Central Bank of Ireland 6 at an early stage should they consider that their proposed activities require authorisation pursuant to the MiFID Regulations. Having fully considered whether the operation of its proposed business model falls to be authorised under the MiFID Regulations (as well as considering whether other Irish financial services legislation7 may be applicable), the applicant investment firm must contact the Central Bank of Ireland 8 in order to arrange a preliminary meeting. 4. Specific Information and Documentation required by the Central Bank of Ireland in order to assess a proposal to operate an MTF Any firm proposing to operate an MTF will need to demonstrate to the satisfaction of the Central Bank of Ireland that it is in a position to meet the specific authorisation requirements for MTFs as set out in the MiFID Regulations9. In addition, the firm will also need to demonstrate that should it be authorised to operate an MTF it will be in a position to meet the specific ongoing supervision requirements for MTFs as set out in the MiFID Regulations. It is very important, if a proposal is to be processed efficiently and in a reasonable timeframe, that it is comprehensively prepared and based on a well developed and clearly outlined business plan10. 6 7 8 9 10 In this regard, the The Financial Institutions and Funds Authorisation Department of the Central Bank of Ireland. Under the remit of the Central Bank of Ireland. The Financial Institutions and Funds Authorisation Department of the Central Bank of Ireland. As stated previously in Section 3 of this Guidance Note, for applicant investment firms, the information and documentation required by the Central Bank of Ireland in order to assess a proposal to operate an MTF is in addition to general information and documentation required as part of the application process. The Application Guidance Note and Application Form referenced at Section 3(b) above sets out details that should be incorporated into a business plan for applicant investment firms. The Central Bank of Ireland would consider that any business plan accompanying a proposal to operate an MTF (irrespective of the type of applicant) should at least contain this information coupled with the specific information required at Appendix 1 of this Guidance Note (where appropriate to a business plan). Page 7 of 33 8 Guidance Note On Authorisation To Operate A Multilateral Trading Facility firm must inter alia submit a detailed business plan, a proposed rule book for the operation of the MTF and a detailed description of the organisational arrangements11 regarding the operation of the proposed MTF. If not already incorporated into these documents, the application should be accompanied by all relevant information, evidence and explanatory material (including supporting documentation) necessary to reference clearly, on a requirement by requirement basis, its compliance with each of the trading requirements. Specifically in relation to the operation of the proposed MTF, the firm must inter alia: (a) demonstrate that its rules are fair, non-discriminatory and transparent; (b) explain how conflicts of interest and complaints are dealt with; (c) set out why its finalisation and clearing and settlement procedures are robust; (d) describe how any central counterparty, dark pool of liquidity12 and price formation will operate; (e) describe the arrangements it proposes to put in place for compliance, internal audit and market integrity supervision; (f) describe its systems for record keeping and business continuity planning (contingency planning and systems disruption); and (g) describe any outsourcing arrangements to be put in place regarding the operation of the MTF13. In this context, the information provided must at least contain the information and documentation required in Annex 1 of this Guidance Note. If not already included in the business plan. Although not a defined term in the MiFID Regulations, and in this foot note the Central Bank of Ireland does not intend to provide a technical definition of the term, a dark pool of liquidity is generally understood to be a characteristic of an electronic trading facility where there is no pre trade transparency between institutional buyers and sellers i.e., where orders are not publicly displayed. Rather such orders are matched anonymously within the system. 13 Where an MTF proposal relies upon outsourced administrative functions, the proposal cannot be progressed beyond the preliminary stage until an applicant is in a position to confirm the agreement that has been reached with the services provider and, therefore, to provide reliable information on the nature of those arrangements. 11 12 Page 8 of 33 9 Guidance Note On Authorisation To Operate A Multilateral Trading Facility 5. Capital Requirements/Financial Resources An applicant investment firm or a firm already authorised under the MiFID Regulations proposing to operate an MTF is required to have sufficient capital to meet the requirements of Directive 2006/48/EC and Directive 2006/49/EC. (These directives are collectively known as the Capital Requirements Directive or CRD.) The risks associated with the operation of an MTF should be reflected in the appropriate capital requirement calculations of the firm on an ongoing basis as calculated under the CRD. December 2008 Page 9 of 33 10 Guidance Note On Authorisation To Operate A Multilateral Trading Facility ANNEX 1 Information and Documentation required to support an Application to Operate a Multilateral Trading Facility under the MiFID Regulations This Annex 1 must be completed and submitted in support of all applications to operate a Multilateral Trading Facility (MTF) irrespective of the applicant’s authorisation status14. NOTES ON COMPLETION 1. All answers must be typed. 2. All questions must be completed before the application to operate an MTF can be considered. If a question does not apply, please write not applicable or none as appropriate. spaces. Do not leave any blank (Incomplete Applications will be returned.) If the applicant is unable to submit any of the documentation requested below please give an explanation in the covering letter (referring to the section number). 3. The text boxes entitled reference/clause/rule number(s) must contain all relevant reference/clause/rule number(s) of the business plan, operational procedures, system specifications or trading rules. All references should be inserted clearly indicating in which of these documents they are contained. The application must be accompanied by the documents referenced in the text boxes. 4. Applicants are required to demonstrate in the detailed explanation text boxes how each section of documents/information detailed in the reference text box at 3 above satisfies the mandatory MiFID Regulations requirements listed in Sections 1 to 4 or other information listed in Sections 6 to 8 of this Annex 1. 14 Whether the application is being submitted by an applicant investment firm or a firm already authorised as an investment firm under the MiFID Regulations. Page 10 of 33 11 Guidance Note On Authorisation To Operate A Multilateral Trading Facility 5. Where applicants are required to: (a) ‘confirm’ - a tick (‘’) placed in the relevant box will be taken as confirmation. (b) attach a document - a tick (‘’) placed in the ‘Document Attached’ box will be taken as confirmation that the document is attached. (c) provide a YES or a NO answer - a tick (‘’) should be placed in the relevant box as appropriate. 6. If insufficient space has been provided for a reply, please provide that information on a separate sheet and refer to it in the space provided for the answer. Please ensure that any sheets are clearly marked with the name of the organisation and referenced to the appropriate question. 7. Further information or clarification may be requested (having regard to the replies furnished) for the purpose of considering and evaluating an application to operate an MTF. Page 11 of 33 12 Guidance Note On Authorisation To Operate A Multilateral Trading Facility Mandatory Provisions of the MiFID Regulations 1. Trading process and finalisation of transactions in an MTF Confirm () Document Attached () Confirm that the applicant is establishing by written procedure either in its operational procedures, system specifications, trading rules or as otherwise described: 1.1 (a) transparent and non-discretionary rules and procedures for fair and orderly trading; and (b) objective criteria for the efficient execution of orders Reference/Clause/Rule No(s) Detailed Explanation 1.2 transparent rules regarding the criteria for determining the financial instruments that can be traded within their systems Reference/Clause/Rule No(s) Page 12 of 33 13 Guidance Note On Authorisation To Operate A Multilateral Trading Facility Confirm () Document Attached () Detailed Explanation 1.3 access to sufficient publicly available information to enable the users of the MTF to form an investment judgement, taking into account both: (a) the nature of the users; and (b) the types of instruments traded Reference/Clause/Rule No(s) Detailed Explanation 1.4 transparent rules, based on objective criteria, governing access to the MTF facility and has ensured that the rules comply with the conditions and requirements established under Regulation 66(3) of the MiFID Regulations Reference/Clause/Rule No(s) Page 13 of 33 14 Guidance Note On Authorisation To Operate A Multilateral Trading Facility Confirm () Detailed Explanation Document Attached () 1.5 clear information to the potential users of the MTF of their respective responsibilities for the settlement of the transactions concluded under the systems of the MTF Reference/Clause/Rule No(s) Detailed Explanation 1.6 that the necessary arrangements are in place in order to facilitate the efficient settlement of the transactions concluded under the systems of the MTF Reference/Clause/Rule No(s) Page 14 of 33 15 Guidance Note On Authorisation To Operate A Multilateral Trading Facility Confirm () Document Attached () Detailed Explanation 1.7 appropriate systems and procedures to ensure that it is in a position to comply without delay with any instruction from the Central Bank of Ireland to suspend or remove a financial instrument from trading Reference/Clause/Rule No(s) Detailed Explanation Page 15 of 33 16 Guidance Note On Authorisation To Operate A Multilateral Trading Facility 2. Monitoring compliance with the rules of the MTF and with other legal obligations Confirm () Confirm that the applicant is establishing by written procedure either in its operational procedures, system specifications, trading rules or as otherwise described: Document Attached () 2.1 effective arrangements and procedures, relevant to the MTF, for the regular monitoring of the compliance by its users with its rules Reference/Clause/Rule No(s) Detailed Explanation 2.2 systems to monitor the transactions undertaken by the users of the MTF under its systems in order to identify(i) breaches of its rules; (ii) disorderly trading conditions; and (iii) conduct that may involve market abuse15. Reference/Clause/Rule No(s) 15 As defined in the Market Abuse (Directive 2003/6/EC) Regulations 2005 Page 16 of 33 17 Guidance Note On Authorisation To Operate A Multilateral Trading Facility Confirm () Document Attached () Detailed Explanation 2.3 procedures to ensure that it can report to the Central Bank of Ireland without delay(i) significant breaches of its rules; (ii) disorderly trading conditions; and (iii) conduct that may involve market abuse. Reference/Clause/Rule No(s) Detailed Explanation 2.4 procedures to ensure that it is in a position to provide full assistance to the Central Bank of Ireland in investigating and prosecuting market abuse occurring on or through its systems Reference/Clause/Rule No(s) Page 17 of 33 18 Guidance Note On Authorisation To Operate A Multilateral Trading Facility Detailed Explanation 3. Pre-trade transparency requirements for MTF’s Confirm () Document Attached () Confirm that the applicant is establishing by written procedure either in its operational procedures, system specifications, trading rules or has otherwise described: 3.1 arrangements to make public(i) any current bid and offer prices that will be advertised through its systems in respect of shares admitted to trading on a regulated market; and (ii) the depth of the trading interests at those prices; on reasonable commercial terms and on a continuous basis during normal trading hours Reference/Clause/Rule No(s) Detailed Explanation Page 18 of 33 19 Guidance Note On Authorisation To Operate A Multilateral Trading Facility 3.2 Does the applicant intend to apply to the Central Bank of Ireland under Regulation 120(2) of the MiFID Regulations for a waiver(s) from the pre-trade transparency requirements set out in Regulation 120(1) for MTF’s? Yes () No () Yes () No () If YES Please indicate the type of waiver required (e.g. market model or the type and/or size of orders) and demonstrate how the conditions specified in Commission Regulation EC 1287/2006 are satisfied. 4. Post-trade transparency requirements for MTF’s 4.1 Will all transactions in shares admitted to trading on a regulated market to be carried out under the systems of the applicant be made public under the systems of a regulated market? If answer is YES to 4.1, 4.2 Confirm (a) each of the regulated markets on which the shares are admitted to trading; and Page 19 of 33 20 Guidance Note On Authorisation To Operate A Multilateral Trading Facility Confirm () Document Attached () (b) the method utilised by each such regulated market to make public share transactions If answer is NO to 4.1, 4.3 Confirm that the applicant is establishing by written procedure either in its operational procedures, system specifications, trading rules or as otherwise described: (a) procedures to ensure that it can make public as soon as possible on reasonable commercial terms and in a manner accessible to other market participants(i) the price; (ii) the volume; and (iii) the time for those transactions (other than transactions that are made public under the systems of a regulated market) carried out under its systems in shares admitted to trading on a regulated market Reference/Clause/Rule No(s) Detailed Explanation Page 20 of 33 21 Guidance Note On Authorisation To Operate A Multilateral Trading Facility Confirm () Document Attached () Yes () No () (b) systems enabled to determine whether it can defer publication in accordance with the criteria set out in table 4 of Annex II of Commission Regulation (EC) No. 1287/2006 if it intends to defer publication in accordance with Regulation 121(4) of the MiFID Regulations Reference/Clause/Rule No(s) Detailed Explanation 4.4 Does the Applicant intend to apply to the Central Bank of Ireland for approval to defer making public the price, volume and time of the transactions referred to in 4.3 above? If the answer is YES to 4.4, 4.5 Confirm that the applicant is establishing by written procedure either in its operational procedures, system specifications, trading rules or has otherwise described: Page 21 of 33 22 Guidance Note On Authorisation To Operate A Multilateral Trading Facility Confirm () Document Attached () (i) procedures to ensure that any deferment arrangement that might be approved by the Central Bank of Ireland in respect of that application is clearly disclosed to market participants and the public Reference/Clause/Rule No(s) Detailed Explanation Page 22 of 33 23 Guidance Note On Authorisation To Operate A Multilateral Trading Facility Other Information necessary to support application 5. Provisions regarding central counterparty, clearing and settlement arrangements in respect of MTF’s 5.1 Does the applicant intend entering into an arrangement(s) with a central counterparty or clearing house settlement system in the State or in another Member State with a view to providing for the clearing, settlement or both of some or all trades concluded by market participants under the systems of the MTF? Yes () No () Confirm () Document Attached () If the answer is YES to 5.1, 5.2 provide details of each such counterparty, or clearing house settlement system including its home Member State 5.3 For each such counterparty, or clearing house settlement system detailed at 5.2 Confirm that the applicant has established that: (i) the links and arrangements between the designated settlement system and any other system or facility allow the efficient and economic settlement of the transactions in question; and (ii) the technical conditions for settlement of transactions allow the smooth and orderly functioning of financial markets Page 23 of 33 24 Guidance Note On Authorisation To Operate A Multilateral Trading Facility Confirm () Document Attached () Reference/Clause/Rule No(s) Detailed Explanation 5.3 For each such counterparty, or clearing house settlement system detailed at 5.2: Confirm that the applicant has established that the right of access for the purposes of finalising or arranging the finalisation of transactions in financial instruments (i) is subject to non-discretionary, transparent and objective criteria; and (ii) is not and must not be restricted to the clearing and settlement of transactions in financial instruments undertaken on a regulated market or an MTF in the State Reference/Clause/Rule No(s) Detailed Explanation Page 24 of 33 25 Guidance Note On Authorisation To Operate A Multilateral Trading Facility 6. Other Trading Information Confirm () In relation to the proposed operation of an MTF confirm that the applicant has either in its operational procedures, system specifications, trading rules or as otherwise: Document Attached () 6.1 described in detail the systems and procedures proposed regarding price formation, including sources of reference prices, if relevant Reference/Clause/Rule No(s) Detailed Explanation 6.2 indicated whether the MTF is to operate as a so called “dark pool of liquidity” Reference/Clause/Rule No(s) Detailed Explanation Page 25 of 33 26 Guidance Note On Authorisation To Operate A Multilateral Trading Facility 7. Transaction Reporting 7.1 Does the applicant intend providing the optionality to its clients to report to the Central Bank of Ireland, on their behalf, transactions executed by such clients in accordance with Regulation 112 of the MiFID Regulations. Yes () No () Confirm () Document Attached () If the answer to 7.1 is YES, 7.1 Confirm that the applicant is establishing the necessary technology and automated system to enable it to report such transactions in the form specified by the Central Bank of Ireland within the time frame specified under Regulation 112 of the MiFID Regulations. Reference/Clause/Rule No(s) Detailed Explanation Page 26 of 33 27 Guidance Note On Authorisation To Operate A Multilateral Trading Facility 8. Other Issues Confirm () In relation to the proposed operation of an MTF, confirm that the applicant has either in its operational procedures, system specifications, trading rules or as otherwise described in detail the systems and procedures proposed regarding: Document Attached () 8.1 Record Keeping Reference/Clause/Rule No(s) Detailed Explanation 8.2 Compliance Reference/Clause/Rule No(s) Page 27 of 33 28 Guidance Note On Authorisation To Operate A Multilateral Trading Facility Confirm () Document Attached () Detailed Explanation 8.3 Outsourcing16 Reference/Clause/Rule No(s) Detailed Explanation 8.4 Internal Audit Reference/Clause/Rule No(s) 16 as stated previously, where an MTF proposal relies upon outsourced administrative functions, the proposal cannot be progressed beyond the preliminary stage until an applicant is in a position to confirm the agreement that has been reached with the services provider and, therefore, to provide reliable information on the nature of those arrangements Page 28 of 33 29 Guidance Note On Authorisation To Operate A Multilateral Trading Facility Detailed Explanation 8.5 Conflicts of Interest Reference/Clause/Rule No(s) Confirm () Document Attached () Detailed Explanation 8.6 Complaints Handling Reference/Clause/Rule No(s) Page 29 of 33 30 Guidance Note On Authorisation To Operate A Multilateral Trading Facility Detailed Explanation 8.7 Business Continuity Planning including: (a) contingency planning (b) systems interruption Reference/Clause/Rule No(s) Page 30 of 33 31 Guidance Note On Authorisation To Operate A Multilateral Trading Facility Detailed Explanation Page 31 of 33 T +353 1 224 4000 F +353 1 671 6561 www.centralbank.ie Bosca OP 559, Sráid an Dáma, Baile Átha Cliath 2, Éire PO. 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