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Tennessee Wine And Spirits Retailers Association v. Thomas

United States Supreme Court

June 26, 2019

TENNESSEE WINE AND SPIRITS RETAILERS ASSOCIATION, PETITIONER
v.
RUSSELL F. THOMAS, EXECUTIVE DIRECTOR OF THE TENNESSEE ALCOHOLIC BEVERAGE COMMISSION, ET AL.

          Argued January 16, 2019

          ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

         Tennessee law imposes durational-residency requirements on persons and companies wishing to operate retail liquor stores, requiring applicants for an initial license to have resided in the State for the prior two years; requiring an applicant for renewal of a license to reside in the State for 10 consecutive years; and providing that a corporation cannot obtain a license unless all of its stockholders are residents. Following the state attorney general's opinion that the residency requirements discriminated against out-of-state economic interests in violation of the Commerce Clause, the Tennessee Alcoholic Beverage Commission (TABC) declined to enforce the requirements.

         Two businesses that did not meet the residency requirements (both respondents here) applied for licenses to own and operate liquor stores in Tennessee. Petitioner Tennessee Wine and Spirits Retailers Association (Association)-a trade association of in-state liquor stores-threatened to sue the TABC if it granted the licenses, so the TABC's executive director (also a respondent) filed a declaratory judgment action in state court to settle the question of the residency requirements' constitutionality. The case was removed to Federal District Court, which found the requirements unconstitutional. The State declined to appeal, but the Association took the case to the Sixth Circuit. It affirmed, concluding that the provisions violated the Commerce Clause. The Association petitioned for certiorari only with respect to the Sixth Circuit's decision to invalidate the 2-year residency requirement applicable to initial liquor store license applicants.

         Held: Tennessee's 2-year durational-residency requirement applicable to retail liquor store license applicants violates the Commerce Clause and is not saved by the Twenty-first Amendment. Pp. 6-37.

(a) The Commerce Clause by its own force restricts state protectionism. Removing state trade barriers was a principal reason for the adoption of the Constitution, and at this point no provision other than the Commerce Clause could easily do that job. The Court has long emphasized the connection between the trade barriers that prompted the call for a new Constitution and its dormant Commerce Clause jurisprudence. See Guy v. Baltimore, 100 U.S. 434, 440; Granholm v. Heald, 544 U.S. 460, 472. Pp. 6-10.
(b) Under the dormant Commerce Clause cases, a state law that discriminates against out-of-state goods or nonresident economic actors can be sustained only on a showing that it is narrowly tailored to "advanc[e] a legitimate local purpose." Department of Revenue of Ky. v. Davis, 553 U.S. 328, 338. Tennessee's 2-year residency requirement plainly favors Tennesseans over nonresidents. P. 10.
(c) Because the 2-year residency requirement applies to the sale of alcohol, however, it must be evaluated in light of §2 of the Twenty-first Amendment. Pp. 10-20.
(1) Section 2's broad text-the "transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited"-could be read to prohibit the transportation or importation of alcoholic beverages in violation of any state law. But the Court has declined to adopt that reading, instead interpreting §2 as one part of a unified constitutional scheme and in light of the provision's history. History teaches that §2's thrust is to "constitutional-iz[e]" the basic structure of federal-state alcohol regulatory authority that prevailed prior to the Eighteenth Amendment's adoption. Craig v. Boren, 429 U.S. 190, 206. Pp. 10-12.
(2) This Court invalidated many state liquor regulations before the Eighteenth Amendment's ratification, and by the late 19th century it had concluded that the Commerce Clause both prevented States from discriminating "against citizens and products of other States," Walling v. Michigan, 116 U.S. 446, 460, and "prevented States from passing facially neutral laws that placed an impermissible burden on interstate commerce," Granholm, 544 U.S., at 477. State bans on the production and sale of alcohol within state borders were rendered ineffective by the "original-package doctrine," which made "goods shipped in interstate commerce . . . immune from state regulation while in their original package." Ibid. Congress responded by passing the Wilson Act, which provided that all alcoholic beverages "transported into any State or Territory" were subject "upon arrival" to the same restrictions imposed by the State "in the exercise of its police powers" over alcohol produced in the State, i.e., bona fide health and safety measures. This Court, however, narrowly construed the term "arrival" in the Wilson Act as arrival to the consignee rather than arrival within the State's borders, which allowed consumers to continue to receive direct shipments of alcohol from out of State. Congress passed the Webb-Kenyon Act to close that loophole. But, as this Court's decision in Granholm determined, the Webb-Kenyon Act was not intended to override the rule barring States from discriminating against out-of-state citizens and products, nor the traditional limits on state police power. Thereafter, the Eighteenth Amendment was ratified, prohibiting the manufacture, sale, transportation, and importation of alcoholic beverages across the country. Pp. 12-20.
(d) Section 2 of the Twenty-first Amendment grants the States latitude with respect to the regulation of alcohol, but it does not allow the States to violate the "nondiscrimination principle" that was a central feature of the regulatory regime that the provision was meant to constitutionalize. Granholm, supra, at 487. Pp. 20-32.
(1) The Twenty-first Amendment ended nationwide Prohibition, but §2 gave each State the option of banning alcohol if its citizens so chose. Its text "closely follow[ed]" the Webb-Kenyon Act's operative language, suggesting that it was meant to have a similar meaning. Craig v. Boren, 429 U.S., at 205-206. The provision was meant to "constitutionaliz[e]" the basic understanding of the extent of the States' power to regulate alcohol that prevailed before Prohibition. Id., at 206. And during that period, the Commerce Clause did not permit the States to impose protectionist measures clothed as police-power regulations. Pp. 20-22.
(2) At first, the Court did not take account of this history. But it has since recognized that §2 cannot be interpreted to override all previously adopted constitutional provisions, scrutinizing state alcohol laws for compliance with, e.g., the Free Speech Clause, 44 Liq-uormart, Inc. v. Rhode Island, 517 U.S. 484; the Establishment Clause, Larkin v. Grendel's Den, Inc., 459 U.S. 116; the Equal Protection Clause, Craig v. Boren, supra; the Due Process Clause, Wisconsin v. Constantineau, 400 U.S. 433; and the Import-Export Clause, Department of Revenue v. James B. Beam Distilling Co., 377 U.S. 341. Section 2 also does not entirely supersede Congress's power to regulate commerce, see, e.g., Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 333-334, nor is its aim to permit States to restrict the importation of alcohol for purely protectionist purposes, see, e.g., Granholm, supra, at 486-487. Pp. 22-23.
(3) Protectionism is not a legitimate §2 interest shielding state alcohol laws that burden interstate commerce. Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 276. The Court has applied that principle to invalidate state alcohol laws aimed at giving a competitive advantage to in-state businesses. See, e.g., id., at 274. Pp. 24-26.
(4) The Association and the dissent's overly broad understanding of §2 is unpersuasive. They claim that, while §2 does not give the States the power to discriminate against out-of-state alcohol products and producers, a different rule applies to state laws regulating instate alcohol distribution. There is no sound basis for this distinction. The Association and the dissent also claim that discriminatory distribution laws, including in-state residency requirements, long predate Prohibition and were adopted by many States following the Twenty-first Amendment's ratification. State laws adopted soon after ratification, however, may have been based on an overly expansive interpretation of §2 that can no longer be defended, and many state laws adopted before Prohibition were never tested in this Court. Nor have States historically enjoyed absolute authority to police alcohol within their borders. Section 2 allows each State leeway to enact measures to address the public health and safety effects of alcohol use and other legitimate interests, but it does not license the States to adopt protectionist measures with no demonstrable connection to those interests. Pp. 26-32.
(d) Applying the appropriate §2 analysis here, Tennessee's 2-year residency requirement cannot be sustained. The provision expressly discriminates against nonresidents and has at best a highly attenuated relationship to public health or safety. The Association claims that the requirement ensures that retailers are subject to process in state courts, but does not explain why that objective could not easily be achieved by, e.g., requiring a nonresident to designate an agent to receive process. Similarly unpersuasive is its claim that the requirement allows the State to ensure that only law-abiding and responsible applicants receive licenses. The State can thoroughly investigate applicants without requiring them to reside in the State for two years, and in any event the requirement poorly serves that goal since the TABC would have no reason to investigate a nonresident who moves to the State with the intention of applying for a license once the 2-year period ends. Nor is the residency requirement needed to enable the State to maintain oversight over liquor store operators; they can be monitored through any number of nondiscriminatory means, including on-site inspections, audits, and the like. There is also no evidence to support the claim that the requirement would promote responsible alcohol consumption because retailers who know the communities they serve will be more likely to engage in responsible sales practices. The residency requirement is poorly designed for such a purpose, and the State could better serve the goal without discriminating against nonresidents by, e.g., limiting both the number of retail licenses and the amount of alcohol that may be sold to an individual, mandating more extensive training for managers and employees, or monitoring retailer practices and taking action against those who violate the law. Pp. 32-36.

883 F.3d 608, affirmed.

          ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and Ginsburg, Breyer, Sotomayor, Kagan, and Kavanaugh, JJ., joined. GORSUCH, J., filed a dissenting opinion, in which THOMAS, J., joined.

          OPINION

          ALITO JUSTICE.

         The State of Tennessee imposes demanding durational-residency requirements on all individuals and businesses seeking to obtain or renew a license to operate a liquor store. One provision precludes the renewal of a license unless the applicant has resided in the State for 10 consecutive years. Another provides that a corporation cannot obtain a license unless all of its stockholders are residents. The Court of Appeals for the Sixth Circuit struck down these provisions as blatant violations of the Commerce Clause, and neither petitioner-an association of Tennessee liquor retailers-nor the State itself defends them in this Court.

         The Sixth Circuit also invalidated a provision requiring applicants for an initial license to have resided in the State for the prior two years, and petitioner does challenge that decision. But while this requirement is less extreme than the others that the Sixth Circuit found to be unconstitutional, we now hold that it also violates the Commerce Clause and is not shielded by §2 of the Twenty-first Amendment. Section 2 was adopted as part of the scheme that ended prohibition on the national level. It gives each State leeway in choosing the alcohol-related public health and safety measures that its citizens find desirable. But §2 is not a license to impose all manner of protectionist restrictions on commerce in alcoholic beverages. Because Tennessee's 2-year residency requirement for retail license applicants blatantly favors the State's residents and has little relationship to public health and safety, it is unconstitutional.

         I

         A

         Tennessee, like many other States, requires alcoholic beverages distributed in the State to pass through a specified three-tiered system.[1] Acting through the Tennessee Alcoholic Beverage Commission (TABC), the State issues different types of licenses to producers, wholesalers, and retailers of alcoholic beverages. See Tenn. Code Ann. §57-3-201 (2018). Producers may sell only to licensed wholesalers; wholesalers may sell only to licensed retailers or other wholesalers; and only licensed retailers may sell to consumers. §57-3-404. No person may lawfully participate in the sale of alcohol without the appropriate license. See, e.g., §57-3-406.

         Included in the Tennessee scheme are onerous durational-residency requirements for all persons and companies wishing to operate "retail package stores" that sell alcoholic beverages for off-premises consumption (hereinafter liquor stores). See §57-3-204(a). To obtain an initial retail license, an individual must demonstrate that he or she has "been a bona fide resident" of the State for the previous two years. §57-3-204(b)(2)(A). And to renew such a license-which Tennessee law requires after only one year of operation-an individual must show continuous residency in the State for a period of 10 consecutive years. Ibid.

         The rule for corporations is also extraordinarily restrictive. A corporation cannot get a retail license unless all of its officers, directors, and owners of capital stock satisfy the durational-residency requirements applicable to individuals. §57-3-204(b)(3). In practice, this means that no corporation whose stock is publicly traded may operate a liquor store in the State.

         In 2012, the Tennessee attorney general was asked whether the State's durational-residency requirements violate the Commerce Clause, and his answer was that the requirements constituted "trade restraints and barriers that impermissibly discriminate against interstate commerce." App. to Brief in Opposition 11a; see also id., at 12a (citing Jelovsek v. Bredesen, 545 F.3d 431, 435 (CA6 2008)). In light of that opinion, the TABC stopped enforcing the requirements against new applicants. See App. 51, ¶9; id., at 76, ¶10.

         The Tennessee General Assembly responded by amending the relevant laws to include a statement of legislative intent. Citing the alcohol content of the beverages sold in liquor stores, the Assembly found that protection of "the health, safety and welfare" of Tennesseans called for "a higher degree of oversight, control and accountability for individuals involved in the ownership, management and control" of such outlets. §57-3-204(b)(4).

         After the amendments became law, the attorney general was again asked about the constitutionality of the durational-residency requirements, but his answer was the same as before. See App. to Brief in Opposition 13a. Consequently, the TABC continued its practice of nonenforcement.

         B

         In 2016, respondents Tennessee Fine Wines and Spirits, LLC dba Total Wine Spirits Beer & More (Total Wine) and Affluere Investments, Inc. dba Kimbrough Fine Wine & Spirits (Affluere) applied for licenses to own and operate liquor stores in Tennessee. At the time, neither Total Wine nor Affluere satisfied the durational-residency requirements. Total Wine was formed as a Tennessee limited liability company but is owned by residents of Maryland, Brief for Respondent Total Wine 10; App. 51, ¶4-5, and Affluere was owned and controlled by two individuals who, by the time their application was considered, had only recently moved to the State, see App. 11-12, 20, 22.

         TABC staff recommended approval of the applications, but petitioner Tennessee Wine and Spirits Retailers Association (the Association)-a trade association of in-state liquor stores-threatened to sue the TABC if it granted them. Id., at 15, ¶I7. The TABC's executive director (a respondent here) filed a declaratory judgment action in state court to settle the question of the residency requirements' constitutionality. Id., at 17.

         The case was removed to the United States District Court for the Middle District of Tennessee, and that court, relying on our decision in Granholm v. Heald, 544 U.S. 460 (2005), concluded that the requirements are unconstitutional. Byrd v. Tennessee Wine and Spirits Retailers Assn., 259 F.Supp.3d 785, 797 (2017). The State declined to appeal, and Total Wine and Affluere were issued licenses.

         The Association, however, took the case to the Court of Appeals for the Sixth Circuit, where a divided panel affirmed. See Byrd v. Tennessee Wine and Spirits Retailers Assn., 883 F.3d 608 (2018). All three judges acknowledged that the Tennessee residency requirements facially discriminate against out-of-state economic interests. See id., at 624; id., at 634 (Sutton, J., concurring in part and dissenting in part). And all three also agreed that neither the 10-year residency requirement for license renewals nor the 100-percent-resident shareholder requirement is constitutional under this Court's Twenty-first Amendment and dormant Commerce Clause precedents. See id., at 625-626; id., at 635 (opinion of Sutton, J.).

         The panel divided, however, over the constitutionality of the 2-year residency requirement for individuals seeking initial retail licenses, as well as the provision applying those requirements to officers and directors of corporate applicants. Applying standard dormant Commerce Clause scrutiny, the majority struck down the challenged restrictions, reasoning that they facially discriminate against interstate commerce and that the interests they are claimed to further can be adequately served through reasonable, nondiscriminatory alternatives. Id., at 623-626. The dissent disagreed, reading §2 of the Twenty-first Amendment to grant States "'virtually' limitless" authority to regulate the in-state distribution of alcohol, the only exception being for laws that "serve no purpose besides 'economic protectionism.'" Id., at 633 (quoting Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 276 (1984)). Applying that highly deferential standard, the dissent would have upheld the 2-year residency requirement, as well as the provision applying that requirement to all officers and directors of corporate applicants. The dissent argued that these provisions help to promote the State's interests in "responsible consumption" of alcohol and "orderly liquor markets." 883 F.3d, at 633.

         The Association filed a petition for a writ of certiorari challenging the decision on the 2-year residency requirement for initial licenses. Tennessee declined to seek certiorari but filed a letter with the Court expressing agreement with the Association's position.[2] We granted certiorari, 585 U.S. (2018), in light of the disagreement among the Courts of Appeals about how to reconcile our modern Twenty-first Amendment and dormant Commerce Clause precedents. See 883 F.3d, at 616 (collecting cases).

         II

         A

         The Court of Appeals held that Tennessee's 2-year residency requirement violates the Commerce Clause, which provides that "[t]he Congress shall have Power . . . [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Art. I, §8, cl. 3. "Although the Clause is framed as a positive grant of power to Congress," Comptroller of Treasury of Md. v. Wynne, 575 U.S. ___, ___ (2015) (slip op., at 5), we have long held that this Clause also prohibits state laws that unduly restrict interstate commerce. See, e.g., ibid.; Philadelphia v. New Jersey, 437 U.S. 617, 623-624 (1978); Cooley v. Board of Wardens of Port of Philadelphia ex rel. Soc. for Relief of Distressed Pilots, 12 How. 299, 318-319 (1852); Willson v. Black Bird Creek Marsh Co., 2 Pet. 245, 252 (1829). "This 'negative' aspect of the Commerce Clause" prevents the States from adopting protectionist measures and thus preserves a national market for goods and services. New Energy Co. of Ind. v. Limbach, 486 U.S. 269, 273 (1988).

         This interpretation, generally known as "the dormant Commerce Clause," has a long and complicated history. Its roots go back as far as Gibbons v. Ogden, 9 Wheat. 1 (1824), where Chief Justice Marshall found that a version of the dormant Commerce Clause argument had "great force." Id., at 209. His successor disagreed, see License Cases, 5 How. 504, 578-579 (1847) (Taney, C. J.), but by the latter half of the 19th century the dormant Commerce Clause was firmly established, see, e.g., Case of the State Freight Tax, 15 Wall. 232, 279-280 (1873), and it played an important role in the economic history of our Nation. See Cushman, Formalism and Realism in Commerce Clause Jurisprudence, 67 U. Chi. L. Rev. 1089, 1107 (2000).

         In recent years, some Members of the Court have authored vigorous and thoughtful critiques of this interpretation. See, e.g., Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 609-620 (1997) (THOMAS, J., dissenting); Tyler Pipe Industries, Inc. v. Washington State Dept. of Revenue, 483 U.S. 232, 259-265 (1987) (Scalia, J., concurring in part and dissenting in part); cf. post, at 2-3 (GORSUCH, J., dissenting) (deeming doctrine "peculiar"). But the proposition that the Commerce Clause by its own force restricts state protectionism is deeply rooted in our case law. And without the dormant Commerce Clause, we would be left with a constitutional scheme that those who framed and ratified the Constitution would surely find surprising.

         That is so because removing state trade barriers was a principal reason for the adoption of the Constitution. Under the Articles of Confederation, States notoriously obstructed the interstate shipment of goods. "Interference with the arteries of commerce was cutting off the very life-blood of the nation." M. Farrand, The Framing of the Constitution of the United States 7 (1913). The Annapolis Convention of 1786 was convened to address this critical problem, and it culminated in a call for the Philadelphia Convention that framed the Constitution in the summer of 1787.[3] At that Convention, discussion of the power to regulate interstate commerce was almost uniformly linked to the removal of state trade barriers, see Abel, The Commerce Clause in the Constitutional Convention and in Contemporary Comment, 25 Minn. L. Rev. 432, 470-471 (1941), and when the Constitution was sent to the state conventions, fostering free trade among the States was prominently cited as a reason for ratification. In The Federalist No. 7, Hamilton argued that state protectionism could lead to conflict among the States, see The Federalist No. 7, pp. 62-63 (C. Rossiter ed. 1961), and in No. 11, he touted the benefits of a free national market, id., at 88-89. In The Federalist No. 42, Madison sounded a similar theme. Id., at 267-268.

         In light of this background, it would be strange if the Constitution contained no provision curbing state protectionism, and at this point in the Court's history, no provision other than the Commerce Clause could easily do the job. The only other provisions that the Framers might have thought would fill that role, at least in part, are the Import-Export Clause, Art. I, §10, cl. 2, which generally prohibits a State from "lay[ing] any Imposts or Duties on Imports or Exports," and the Privileges and Immunities Clause, Art. IV, §2, which provides that "[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." But the Import-Export Clause was long ago held to refer only to international trade. See Woodruff v. Parham, 8 Wall. 123, 136-137 (1869). And the Privileges and Immunities Clause has been interpreted not to protect corporations, Western & Southern Life Ins. Co. v. State Bd. of Equalization of Cal, 451 U.S. 648, 656 (1981) (citing Hemphill v. Orloff 277 U.S. 537, 548-550 (1928)), and may not guard against certain discrimination scrutinized under the dormant Commerce Clause, see Denning, Why the Privileges and Immunities Clause of Article IV Cannot Replace the Dormant Commerce Clause Doctrine, 88 Minn. L. Rev. 384, 393-397 (2003). So if we accept the Court's established interpretation of those provisions, that leaves the Commerce Clause as the primary safeguard against state protectionism.[4]

         It is not surprising, then, that our cases have long emphasized the connection between the trade barriers that prompted the call for a new Constitution and our dormant Commerce Clause jurisprudence. In Guy v. Baltimore, 100 U.S. 434, 440 (1880), for example, the Court wrote that state protectionist measures, "if maintained by this court, would ultimately bring our commerce to that 'oppressed and degraded state,' existing at the adoption of the present Constitution, when the helpless, inadequate Confederation was abandoned and the national government instituted." More recently, we observed that our dormant Commerce Clause cases reflect a "'central concern of the Framers that was an immediate reason for calling the Constitutional Convention: the conviction that in order to succeed, the new Union would have to avoid the tendencies toward economic Balkanization that had plagued relations among the Colonies and later among the States under the Articles of Confederation.'" Granholm, 544 U.S., at 472 (quoting Hughes v. Oklahoma, 441 U.S. 322, 325-326 (1979)).

         In light of this history and our established case law, we reiterate that the Commerce Clause by its own force restricts state protectionism.

         B

         Under our dormant Commerce Clause cases, if a state law discriminates against out-of-state goods or nonresident economic actors, the law can be sustained only on a showing that it is narrowly tailored to "'advanc[e] a legitimate local purpose.'" Department of Revenue of Ky. v. Davis, 553 U.S. 328, 338 (2008). See also, e.g., Oregon Waste Systems, Inc. v. Department of Environmental Quality of Ore., 511 U.S. 93, 100-101 (1994); Maine v. Taylor, 477 U.S. 131, 138(1986).

         Tennessee's 2-year durational-residency requirement plainly favors Tennesseans over nonresidents, and neither the Association nor the dissent below defends that requirement under the standard that would be triggered if the requirement applied to a person wishing to operate a retail store that sells a commodity other than alcohol. See 883 F.3d, at 626. Instead, their arguments are based on §2 of the Twenty-first Amendment, to which we will now turn.

         III

         A

         Section 2 of the Twenty-first Amendment provides as follows:

"The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited."

         Although the interpretation of any provision of the Constitution must begin with a consideration of the literal meaning of that particular provision, reading §2 to prohibit the transportation or importation of alcoholic beverages in violation of any state law[5] would lead to absurd results that the provision cannot have been meant to produce. Under the established rule that a later adopted provision takes precedence over an earlier, conflicting provision of equal stature, see, e.g., United States v. Tynen, 11 Wall. 88, 92 (1871); Posadas v. National City Bank, 296 U.S. 497, 503 (1936); A. Scalia & B. Garner, Reading Law 327-328 (2012); 1A N. Singer & J. Singer, Sutherland on Statutory Construction §23:9 (7th ed. 2009), such a reading of §2 would mean that the provision would trump any irreconcilable provision of the original Constitution, the Bill of Rights, the Fourteenth Amendment, and every other constitutional provision predating ratification of the Twenty-first Amendment in 1933. This would mean, among other things, that a state law prohibiting the importation of alcohol for sale to persons of a particular race, religion, or sex would be immunized from challenge under the Equal Protection Clause. Similarly, if a state law prohibited the importation of alcohol for sale by proprietors who had expressed an unpopular point of view on an important public issue, the First ...


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