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					1                                   STATE OF OKLAHOMA

2                    2nd Session of the 50th Legislature (2006)

3 COMMITTEE SUBSTITUTE
  FOR
4 HOUSE BILL NO. 2761                         By: Perry

5

6

7                               COMMITTEE SUBSTITUTE

8           An Act relating to identity theft; creating the
            Oklahoma Identity Theft Act; providing short title;
9           defining terms; authorizing consumers to request a
            security freeze; providing certain exemption;
10          establishing certain procedures for consumer
            reporting agencies; requiring disclosure of process;
11          allowing security freeze to be temporarily lifted;
            establishing procedures for the temporary lifting of
12          a security freeze; authorizing development of
            procedures for certain requests; requiring removal or
13          temporary lifting of security freeze under certain
            circumstances; allowing third parties to treat credit
14          applications as incomplete under certain
            circumstances; providing procedures for removal of
15          security freeze; providing an exemption for certain
            persons and entities; allowing credit reporting
16          agencies to charge a certain fee; providing
            exceptions; excluding certain entities from security
17          freeze requirements; requiring inclusion of certain
            notice under certain circumstance; providing civil
18          penalties for certain acts; defining terms; requiring
            individuals and certain entities to conduct an
19          investigation upon a breach of security; requiring
            notice and providing notice procedures; authorizing
20          delay of notice under certain circumstances;
            recognizing compliance with notice requirements by
21          individuals and certain entities under certain
            circumstances; authorizing the Attorney General to
22          bring certain actions for certain violations;
            providing exclusivity clause; providing for
23          codification; and providing an effective date.

24

25

26 BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:

27       SECTION 1.       NEW LAW        A new section of law to be codified

28 in the Oklahoma Statutes as Section 149 of Title 24, unless there is

29 created a duplication in numbering, reads as follows:

30       Sections 1 through 15 of this act shall be known and may be

31 cited as the “Oklahoma Identity Theft Act”.

32


     Req. No. 9626                                                       Page 1
1        SECTION 2.       NEW LAW      A new section of law to be codified

2 in the Oklahoma Statutes as Section 150 of Title 24, unless there is

3 created a duplication in numbering, reads as follows:

4        As used in this act:

5        1.   “Consumer” means an individual who is also a resident of

6 this state;

7        2.   “Consumer report” means any written, oral, or other

8 communication of any information by a consumer reporting agency

9 bearing on the creditworthiness, credit standing, credit capacity,

10 character, general reputation, personal characteristics, or mode of

11 living of a consumer which is used or expected to be used or

12 collected in whole or in part for the purpose of serving as a factor

13 in establishing the eligibility of a consumer for credit or

14 insurance to be used primarily for personal, family, or household

15 purposes, employment purposes, or any other purpose authorized under

16 Section 1681b of Title 15 of the United States Code.       The term

17 “consumer report” does not include:

18            a.      any report containing information solely as to

19                    transactions or experiences between the consumer and

20                    the person making the report,

21            b.      an authorization or approval of a specific extension

22                    of credit directly or indirectly by the issuer of a

23                    credit card or similar device,

24            c.      a report in which a person who has been requested by a

25                    third party to make a specific extension of credit

26                    directly or indirectly to a consumer conveys his or

27                    her decision with respect to such request, if the

28                    third party advises the consumer of the name and

29                    address of the person to whom the request was made and

30                    such person makes the disclosures to the consumer as

31                    required under of the Fair Credit Reporting Act,

32                    Section 1681m of Title 15 of the United States Code,


     Req. No. 9626                                                        Page 2
1              d.     any communication of information described in this

2                     section among persons related by common ownership or

3                     affiliated by corporate control, or

4              e.     any communication of other information among persons

5                     related by common ownership or affiliated by corporate

6                     control, if it is clearly and conspicuously disclosed

7                     to the consumer that the information may be

8                     communicated among such persons and the consumer is

9                     given the opportunity before the time that the

10                    information is initially communicated to direct that

11                    such information not be communicated among such

12                    persons;

13       3.   “Consumer reporting agency” means any person which, for

14 monetary fees, dues, or on a cooperative nonprofit basis, regularly

15 engages in whole or in part in the practice of assembling or

16 evaluating consumer credit information or other information on

17 consumers for the purpose of furnishing consumer reports to third

18 parties, and which uses any means or facility of interstate commerce

19 for the purpose of preparing or furnishing consumer reports; and

20       4.   “Security freeze” means a notice placed in a credit report

21 of a consumer, at the request of the consumer and subject to certain

22 exceptions, that prohibits the consumer reporting agency from

23 releasing the credit report or score of the consumer.

24       SECTION 3.        NEW LAW     A new section of law to be codified

25 in the Oklahoma Statutes as Section 151 of Title 24, unless there is

26 created a duplication in numbering, reads as follows:

27       A.   A consumer may request that a security freeze be placed on

28 his or her credit report by sending a request in writing by

29 certified mail to a consumer reporting agency at an address

30 designated by the consumer reporting agency to receive such

31 requests.        This subsection does not prevent a consumer reporting

32


     Req. No. 9626                                                      Page 3
1 agency from advising a third party that a security freeze is in

2 effect with respect to the credit report of a consumer.

3        B.   A consumer reporting agency shall place a security freeze on

4 a credit report of a consumer no later than five (5) business days

5 after receiving from the consumer:

6        1.   A written request as provided in subsection A of this

7 section;

8        2.   Proper identification; and

9        3.   Payment of a fee, if applicable.

10       C.   The consumer reporting agency shall send a written

11 confirmation of the placement of the security freeze to the consumer

12 within ten (10) business days.       Upon placing the security freeze on

13 the credit report of the consumer, the consumer reporting agency

14 shall provide the consumer with a unique personal identification

15 number or password to be used by the consumer when providing

16 authorization for the release of his or her credit report for a

17 specific period of time.

18       D.   If a consumer requests a security freeze, the consumer

19 reporting agency shall disclose the process of placing and

20 temporarily lifting a freeze, and the process for allowing access to

21 information from the credit report of the consumer for a period of

22 time while the freeze is in place.

23       SECTION 4.      NEW LAW       A new section of law to be codified

24 in the Oklahoma Statutes as Section 152 of Title 24, unless there is

25 created a duplication in numbering, reads as follows:

26       A.   If the consumer wishes to allow his or her credit report to

27 be accessed for a specific period of time while a freeze is in

28 place, he or she shall contact the consumer reporting agency using a

29 point of contact designated by the consumer reporting agency,

30 request that the freeze be temporarily lifted, and provide the

31 following:

32       1.   Proper identification;


     Req. No. 9626                                                     Page 4
1        2.   The unique personal identification number or password

2 provided by the consumer reporting agency pursuant to subsection C

3 of Section 3 of this act;

4        3.   The proper information regarding the time period for which

5 the report shall be available to users of the credit report; and

6        4.   A fee, if applicable.

7        B.   A consumer reporting agency that receives a request from a

8 consumer to temporarily lift a freeze on a credit report pursuant to

9 subsection A of this section, shall comply with the request no later

10 than three (3) business days after receiving the request.

11       C.   A consumer reporting agency may develop procedures involving

12 the use of telephone, facsimile, the Internet, or other electronic

13 media to receive and process a request from a consumer to

14 temporarily lift a freeze on a credit report pursuant to subsection

15 A of this section in an expedited manner.

16       SECTION 5.      NEW LAW      A new section of law to be codified

17 in the Oklahoma Statutes as Section 153 of Title 24, unless there is

18 created a duplication in numbering, reads as follows:

19       A.   A consumer reporting agency shall remove or temporarily lift

20 a freeze placed on the credit report of a consumer only in the

21 following cases:

22       1.   Upon consumer request, pursuant to Sections 4 and 6 of this

23 act; or

24       2.   If the credit report of the consumer was frozen due to a

25 material misrepresentation of fact by the consumer.

26       If a consumer reporting agency intends to remove a freeze upon a

27 credit report of a consumer, the consumer reporting agency shall

28 notify the consumer in writing prior to removing the freeze on the

29 credit report of the consumer.

30       B.   If a third party requests access to a consumer credit report

31 on which a security freeze is in effect, this request is in

32 connection with an application for credit or any other use, and the


     Req. No. 9626                                                    Page 5
1 consumer does not allow his or her credit report to be accessed for

2 that period of time, the third party may treat the application as

3 incomplete.

4        SECTION 6.      NEW LAW       A new section of law to be codified

5 in the Oklahoma Statutes as Section 154 of Title 24, unless there is

6 created a duplication in numbering, reads as follows:

7        A.   A security freeze shall remain in place until the consumer

8 requests, using a point of contact designated by the consumer

9 reporting agency, that the security freeze be removed.       A consumer

10 reporting agency shall remove a security freeze within three (3)

11 business days of receiving a request for removal from the consumer,

12 who provides:

13       1.   Proper identification;

14       2.   The unique personal identification number or password

15 provided by the consumer reporting agency pursuant to Section 3 of

16 this act; and

17       3.   A fee, if applicable.

18       B.   A consumer reporting agency shall require proper

19 identification of the person making a request to place or remove a

20 security freeze.

21       SECTION 7.      NEW LAW       A new section of law to be codified

22 in the Oklahoma Statutes as Section 155 of Title 24, unless there is

23 created a duplication in numbering, reads as follows:

24       The provisions of this act do not apply to the use of a consumer

25 credit report by any of the following:

26       1.   A person or entity, or a subsidiary, affiliate, or agent of

27 that person or entity, or an assignee of a financial obligation owed

28 by the consumer to that person or entity, or a prospective assignee

29 of a financial obligation owed by the consumer to that person or

30 entity in conjunction with the proposed purchase of the financial

31 obligation, with which the consumer has or had prior to assignment

32 an account or contract including a demand deposit account, or to


     Req. No. 9626                                                     Page 6
1 whom the consumer issued a negotiable instrument, for the purposes

2 of reviewing the account or collecting the financial obligation owed

3 for the account, contract, or negotiable instrument.      For purposes

4 of this paragraph, "reviewing the account" includes activities

5 related to account maintenance, monitoring, credit line increases,

6 and account upgrades and enhancements;

7        2.   A subsidiary, affiliate, agent, assignee, or prospective

8 assignee of a person to whom access has been granted for purposes of

9 facilitating the extension of credit or other permissible use;

10       3.   Any state or local agency, law enforcement agency, trial

11 court, or private collection agency acting pursuant to a court

12 order, warrant, or subpoena;

13       4.   A child support agency acting pursuant to Title IV-D of the

14 Social Security Act;

15       5.   The state or its agents or assigns acting to investigate

16 fraud or acting to investigate or collect delinquent taxes or unpaid

17 court orders or to fulfill any of its other statutory

18 responsibilities, provided such responsibilities are consistent with

19 a permissible purpose under Section 1681b of Title 15 of the United

20 States Code;

21       6.   The use of credit information for the purposes of

22 prescreening as provided for by the federal Fair Credit Reporting

23 Act;

24       7.   Any person or entity administering a credit file monitoring

25 subscription or similar service to which the consumer has

26 subscribed;

27       8.   Any person or entity for the purpose of providing a consumer

28 with a copy of his or her credit report or score upon the request of

29 the consumer; or

30       9.   Any person using the information in connection with the

31 underwriting of insurance.

32


     Req. No. 9626                                                      Page 7
1        SECTION 8.      NEW LAW     A new section of law to be codified

2 in the Oklahoma Statutes as Section 156 of Title 24, unless there is

3 created a duplication in numbering, reads as follows:

4        A.   This act does not prevent a consumer reporting agency from

5 charging a fee of no more than Five Dollars ($5.00) to a consumer

6 for each freeze, removal of the freeze, or temporary lifting of the

7 freeze for a period of time, regarding access to a consumer credit

8 report, except that a consumer reporting agency may not charge a fee

9 to a victim of identity theft who has submitted a valid police

10 report to the consumer reporting agency.

11       B.   If a security freeze is in place, a consumer reporting

12 agency shall not change any of the following official information in

13 a consumer credit report without sending a written confirmation of

14 the change to the consumer within thirty (30) days of the change

15 being posted to the file of the consumer:

16       1.   Name;

17       2.   Date of birth;

18       3.   Social security number; and

19       4.   Address.

20       C.   Written confirmation is not required for technical

21 modifications of official information of a consumer, including name

22 and street abbreviations, complete spellings, or transposition of

23 numbers or letters.    In the case of an address change, the written

24 confirmation shall be sent to both the new address and to the former

25 address.

26       SECTION 9.      NEW LAW     A new section of law to be codified

27 in the Oklahoma Statutes as Section 157 of Title 24, unless there is

28 created a duplication in numbering, reads as follows:

29       The following entities are not required to place a security

30 freeze on a credit report:

31       1.   A consumer reporting agency that acts only as a reseller of

32 credit information by assembling and merging information contained


     Req. No. 9626                                                     Page 8
1 in the database of another consumer reporting agency or multiple

2 consumer credit reporting agencies, and does not maintain a

3 permanent database of credit information from which new consumer

4 credit reports are produced.       However, a consumer reporting agency

5 acting as a reseller shall honor any security freeze placed on a

6 consumer credit report by another consumer reporting agency;

7        2.   A check services or fraud prevention services company, which

8 issues reports on incidents of fraud or authorizations for the

9 purpose of approving or processing negotiable instruments,

10 electronic funds transfers, or similar methods of payments; or

11       3.   A deposit account information service company, which issues

12 reports regarding account closures due to fraud, substantial

13 overdrafts, automatic teller machine (ATM) abuse, or similar

14 negative information regarding a consumer, to inquiring banks or

15 other financial institutions for use only in reviewing a consumer

16 request for a deposit account at the inquiring bank or financial

17 institution.

18       SECTION 10.       NEW LAW     A new section of law to be codified

19 in the Oklahoma Statutes as Section 158 of Title 24, unless there is

20 created a duplication in numbering, reads as follows:

21       At any time a consumer is required to receive a summary of

22 rights required under Section 1681g of Title 15 of the United States

23 Code, the following notice shall be included:

24       “Oklahoma Consumers Have the Right to Obtain a Security Freeze.

25       You have a right to place a “security freeze” on your credit

26 report, which will prohibit a consumer reporting agency from

27 releasing information in your credit report without your express

28 authorization.      A security freeze must be requested in writing by

29 certified mail.     The security freeze is designed to prevent credit,

30 loans, and services from being approved in your name without your

31 consent.    However, you should be aware that using a security freeze

32 to take control over who gets access to the personal and financial


     Req. No. 9626                                                    Page 9
1 information in your credit report may delay, interfere with, or

2 prohibit the timely approval of any subsequent request or

3 application you make regarding a new loan, credit, mortgage,

4 government services or payments, rental housing, employment,

5 investment, license, cellular phone, utilities, digital signature,

6 Internet credit card transaction, or other services, including an

7 extension of credit at point of sale.     When you place a security

8 freeze on your credit report, you will be provided a personal

9 identification number or password to use if you choose to remove the

10 freeze on your credit report or authorize the release of your credit

11 report for a period of time after the freeze is in place.    To

12 provide that authorization you must contact the consumer reporting

13 agency and provide all of the following:

14       1.   The personal identification number or password;

15       2.   Proper identification to verify your identity;

16       3.   The proper information regarding the period of time for

17 which the report shall be available; and

18       4.   The payment of the appropriate fee.

19       A consumer reporting agency must authorize the release of your

20 credit report no later than three (3) business days after receiving

21 the above information.

22       A security freeze does not apply to a person or entity, or its

23 affiliates, or collection agencies acting on behalf of the person or

24 entity, with which you have an existing account that requests

25 information in your credit report for the purposes of reviewing or

26 collecting the account.    Reviewing the account includes activities

27 related to account maintenance, monitoring, credit line increases,

28 and account upgrades and enhancements.

29       You have a right to bring civil action against anyone, including

30 a consumer reporting agency, who improperly obtains access to a

31 file, knowingly or willfully misuses file data, or fails to correct

32 inaccurate file data.


     Req. No. 9626                                                   Page 10
1        Unless you are a victim of identity theft with a police report

2 to verify the crimes, a consumer reporting agency has the right to

3 charge you up to Five Dollars ($5.00) to place a freeze on your

4 credit report, up to Five Dollars ($5.00) to temporarily lift a

5 freeze on your credit report, depending on the circumstances, and up

6 to Five Dollars ($5.00) to remove a freeze from your credit report.”

7        SECTION 11.       NEW LAW     A new section of law to be codified

8 in the Oklahoma Statutes as Section 159 of Title 24, unless there is

9 created a duplication in numbering, reads as follows:

10       A.   Any person who willfully fails to comply with any

11 requirement imposed under the provisions of this act with respect to

12 any consumer is liable to that consumer in an amount equal to the

13 sum of:

14       1.    a.    any actual damages sustained by the consumer as a

15                   result of the failure or damages of not less than One

16                   Hundred Dollars ($100.00) and not more than Five

17                   Thousand Dollars ($5,000.00), or

18             b.    in the case of liability of a person for obtaining a

19                   consumer report under false pretenses or knowingly

20                   without a permissible purpose, actual damages

21                   sustained by the consumer as a result of the failure

22                   or Five Thousand Dollars ($5,000.00), whichever is

23                   greater;

24       2.   Such amount of punitive damages as the court may allow; and

25       3.   In the case of any successful action to enforce any

26 liability under the provisions of this act, the costs of the action

27 together with reasonable attorney fees as determined by the court.

28       B.   Any person who obtains a consumer report, requests a

29 security freeze, or requests the temporary lifting or removal of a

30 security freeze from a consumer reporting agency under false

31 pretenses or knowingly without a permissible purpose, shall be

32 liable to the consumer reporting agency for actual damages sustained


     Req. No. 9626                                                      Page 11
1 by the consumer reporting agency or Five Thousand Dollars

2 ($5,000.00), whichever is greater.

3        C.   Any person who is negligent in failing to comply with any

4 requirement imposed under this act with respect to any consumer is

5 liable to that consumer in an amount equal to the sum of:

6        1.   Any actual damages sustained by the consumer as a result of

7 the failure; and

8        2.   In the case of any successful action to enforce any

9 liability under this section, the costs of the action together with

10 reasonable attorney fees as determined by the court.

11       D.   Upon a finding by the court that an unsuccessful pleading,

12 motion, or other paper filed in connection with an action under the

13 provisions of this section was filed in bad faith or for purposes of

14 harassment, the court shall award to the prevailing party reasonable

15 attorney fees in relation to the work expended in responding to the

16 pleading, motion, or other paper.

17       SECTION 12.      NEW LAW     A new section of law to be codified

18 in the Oklahoma Statutes as Section 160 of Title 24, unless there is

19 created a duplication in numbering, reads as follows:

20       As used in Sections 12 through 15 of this act:

21       1.   "Breach of the security of the system" means the

22 unauthorized acquisition of unencrypted computerized data that

23 compromises the security, confidentiality, or integrity of personal

24 information maintained by an individual or a commercial entity.

25 Good-faith acquisition of personal information by an employee or

26 agent of an individual or a commercial entity for the purposes of

27 the individual or the commercial entity is not a breach of the

28 security of the system, provided that the personal information is

29 not used or subject to further unauthorized disclosure;

30       2.   "Commercial entity" includes corporations, business trusts,

31 estates, trusts, partnerships, limited partnerships, limited

32 liability partnerships, limited liability companies, associations,


     Req. No. 9626                                                  Page 12
1 organizations, joint ventures, governments, governmental

2 subdivisions, agencies, or instrumentalities, or any other legal

3 entity, whether for profit or not-for-profit;

4        3.   "Notice" means:

5              a.    written notice,

6              b.    telephonic notice,

7              c.    electronic notice, if the notice provided is

8                    consistent with the provisions regarding electronic

9                    records and signatures set forth in Section 7001 of

10                   Title 15 of the United States Code, or

11             d.    substitute notice, if the individual or the commercial

12                   entity required to provide notice demonstrates that

13                   the cost of providing notice will exceed Seventy-five

14                   Thousand Dollars ($75,000.00), or that the affected

15                   class of Oklahoma residents to be notified exceeds one

16                   hundred thousand (100,000) residents, or that the

17                   individual or the commercial entity does not have

18                   sufficient contact information to provide notice.

19                   Substitute notice consists of all of the following:

20                   (1)   e-mail notice if the individual or the commercial

21                         entity has e-mail addresses for the members of

22                         the affected class of Oklahoma residents,

23                   (2)   conspicuous posting of the notice on the web site

24                         page of the individual or the commercial entity

25                         if the individual or the commercial entity

26                         maintains one, and

27                   (3)   notice to major statewide media; and

28       4.   "Personal information" means the first name or first initial

29 and last name in combination with any one or more of the following

30 data elements that relate to the resident, when either the name or

31 the data elements are not encrypted:

32             a.    Social Security number,


     Req. No. 9626                                                      Page 13
1              b.    driver license number or identification card number,

2                    or

3              c.    account number, or credit or debit card number, in

4                    combination with any required security code, access

5                    code, or password that would permit access to a

6                    financial account of a resident.

7 The term "personal information" does not include publicly available

8 information that is lawfully made available to the general public

9 from federal, state, or local government records.

10       SECTION 13.       NEW LAW     A new section of law to be codified

11 in the Oklahoma Statutes as Section 161 of Title 24, unless there is

12 created a duplication in numbering, reads as follows:

13       A.   An individual or a commercial entity that conducts business

14 in Oklahoma and that owns or licenses computerized data that

15 includes personal information about a resident of Oklahoma shall,

16 when it becomes aware of a breach of the security of the system,

17 conduct in good faith a reasonable and prompt investigation to

18 determine the likelihood that personal information has been or will

19 be misused.       If the investigation determines that the misuse of

20 information about an Oklahoma resident has occurred or is reasonably

21 likely to occur, the individual or the commercial entity shall give

22 notice as soon as possible to the affected Oklahoma resident.

23 Notice must be made in the most expedient time possible and without

24 unreasonable delay, consistent with the legitimate needs of law

25 enforcement and consistent with any measures necessary to determine

26 the scope of the breach and to restore the reasonable integrity of

27 the computerized data system.

28       B.   An individual or a commercial entity that maintains

29 computerized data that includes personal information that the

30 individual or the commercial entity does not own or license shall

31 give notice to and cooperate with the owner or licensee of the

32 information of any breach of the security of the system immediately


     Req. No. 9626                                                     Page 14
1 following discovery of a breach, if misuse of personal information

2 about an Oklahoma resident occurred or is reasonably likely to

3 occur.      Cooperation includes sharing with the owner or licensee

4 information relevant to the breach.

5        C.   Notice required by this section may be delayed if a law

6 enforcement agency determines that the notice will impede a criminal

7 investigation.       Notice required by this section must be made in good

8 faith, without unreasonable delay and as soon as possible after the

9 law enforcement agency determines that notification will no longer

10 impede the investigation.

11       SECTION 14.      NEW LAW     A new section of law to be codified

12 in the Oklahoma Statutes as Section 162 of Title 24, unless there is

13 created a duplication in numbering, reads as follows:

14       A.   An individual or a commercial entity that maintains its own

15 notice procedures as part of an information security policy for the

16 treatment of personal information, and whose procedures are

17 otherwise consistent with the timing requirements of Section 13 of

18 this act is deemed to be in compliance with the notice requirements

19 of Section 13 of this act if the individual or the commercial entity

20 notifies affected Oklahoma residents in accordance with its policies

21 in the event of a breach of security of the system.

22       B.   An individual or a commercial entity that is regulated by

23 state or federal law and that maintains procedures for a breach of

24 the security of the system pursuant to the laws, rules, regulations,

25 guidances, or guidelines established by its primary or functional

26 state or federal regulator is deemed to be in compliance with the

27 provisions of Section 13 of this act if the individual or the

28 commercial entity notifies affected Oklahoma residents in accordance

29 with the maintained procedures when a breach occurs.

30       SECTION 15.      NEW LAW     A new section of law to be codified

31 in the Oklahoma Statutes as Section 163 of Title 24, unless there is

32 created a duplication in numbering, reads as follows:


     Req. No. 9626                                                   Page 15
1        Pursuant to the duties and powers prescribed by the Oklahoma

2 Consumer Protection Act, the Attorney General may bring an action in

3 law or equity to address violations of Sections 13 and 14 of this

4 act and for other relief that may be appropriate to ensure proper

5 compliance with Sections 13 and 14 of this act or to recover direct

6 economic damages resulting from a violation, or both.      The

7 provisions of Sections 13 and 14 of this act are not exclusive and

8 do not relieve an individual or a commercial entity from compliance

9 with all other applicable provisions of law.

10       SECTION 16.   This act shall become effective November 1, 2006.

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12       50-2-9626      GRS     03/06/06

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     Req. No. 9626                                                  Page 16

				
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