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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations

Issue 6 - Evidence, March 10, 2005

OTTAWA, Thursday, March 10, 2005

The Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations met this day at 8:35 a.m. for the review of statutory instruments; and to consider a draft budget.

Senator John G. Bryden and Mr. Gurmant Grewal (Joint Chairmen) in the chair.


The Joint Chairman (Senator Bryden): It is good to see everyone. There are some preliminary matters to deal with. One of them is simply a point of information.

At the beginning of this committee, as presently formed, the co-chairs had asked our counsel to give us an indication of the backlog of materials that we had to look at. We received the information in a report back from our counsel, François Bernier, and I would like to read it to you. ``I earlier reported that the file backlog totalled 995 instruments. Our recent count shows this has been reduced by some 73 per cent and that the backlog now consists of 264 instruments.

On the numbers alone, that is performance. I congratulate you. The fact is there always will be a backlog because if you take something off the end of the hopper there is another bunch going in. I believe counsel feels these sorts of numbers are manageable. My co-chair and I are pleased and happy that you let us know.

The next item is the budget for the committee for 2005-06, and that has been circulated to members of the committee. I would ask our clerks if they would just go over the budget. We do not have a large budget, but nevertheless it is the responsible thing to go over it and see if there are any questions.

Mr. François Michaud, Joint Clerk of the Committee: As the chair said, the budget for 2005-06 is rather minimal; it is a total of $23,700. I do not know if members want me to go through all the details, but obviously there is some money for working meals for our breakfast. There is a small amount for hospitality, in the event there is such an occurrence. It is the same thing for legal counsel. It has happened in the past that the committee has hired an external legal counsel; should the need arise again, we would have money to do that.

The next two items, witness expenses and attendance at conferences, are there in the event we need it. It is fairly rare that we need money for such items, but if there is a need, we will be able to respond to it quickly.

There is an amount for printing — because every week the thick agenda must be printed and distributed to committee members. The next item is books. There is sometimes a need to buy reference books for counsel; and miscellaneous is what it says.

If there are any questions, I would be happy to answer them.

The Joint Chairman (Senator Bryden): Are there any questions in relation to this? If not, I would entertain a motion to adopt the budget.

It is moved and seconded by Ms. Wasylycia-Leis.

It is agreed.

Hon. Members: Agreed.

The Joint Chairman (Senator Bryden): That is carried.




The Joint Chairman (Senator Bryden): We can go to our agenda. The first thing on the agenda is this very large issue, which is represented by the letter to Mr. Regan from us that is backed up by this lengthy sixth report. The length of it is indicated by the fact that the whole first page of our agenda is taken up by what is contained in there.

Counsel had the courtesy to call us and give us an indication what this really is about. I would ask him if he could do that verbally in the same manner, because it is not nearly as complex to get fixed as it is if we go through this page by page.

Mr. François-R. Bernier, General Counsel to the Committee: Members have copies of the sixth report, No. 71, in the material that was distributed. The report details the committee's objections to the Aboriginal Communal Fishing Licences Regulations. These objections, and those detailed in the committee's report No. 66, on the Ontario Fishery Regulations, 1989, were to be dealt with through amendments to the Fisheries Act.

Senator Moore: Excuse me. Is this the issue that Mr. John Cummings brought to the committee?

Mr. Bernier: Yes, it is.

Those amendments would have provided a legislative authority that is lacking currently, and they were presented to the House of Commons as Bill C-43 in June 2003. That bill was eventually reintroduced in a later session as Bill C-33. When the file was before the joint committee last November, the joint chairmen were asked to write a letter to the minister to ask whether he intends to reintroduce that bill. There has been no reply to that letter and no bill has been reintroduced to date.

As I mentioned to the joint chairmen yesterday, one provision is common to both the Aboriginal and the Ontario Fishery Regulations. That provision imposes penal sanctions for the non-respect of licensed conditions. The joint committee has taken a strong stand against provisions of this kind on the grounds that they are illegal unless expressly authorized by statute.

One of the amendments contained in Bill C-33 would have given authority for this kind of provision. Members are aware that under the new statutory disallowance procedure adopted in 2003, any disallowance report is preceded by a 30-day notice to the regulation-making authority, which in this case would be the Minister of Fisheries and Oceans.

One possible approach now would be for the committee to give notice to the Department of Fisheries and Oceans of its intent to consider a report disallowing section 36.01(2) of the Ontario Fishery Regulations. This provision is similar to section 7 of the Aboriginal Communal Fishing Regulations and has been reported to the Houses in 2000 as being ultra vires, trespassing unduly on rights and liberties of the subjects and involving an unusual and unexpected use of the powers conferred by Parliament in the Fisheries Act. Since the 1990s, similar provisions have found their way into a number of fishery regulations, and the disallowance of section 36.01(2) of the Ontario Fishery Regulations certainly would serve as a one-case precedent for all other regulations.

On receipt of the notice required by section 19.1(2) of the Statutory Instruments Act, the Minister of Fisheries and Oceans would have an opportunity to reintroduce the legislation that would have provided the required legal authority. If that occurs, the committee would be at liberty to reconsider the need to proceed with an actual disallowance resolution, even if a notice has been given.

Senator Moore: We have had this matter before us for a long time. We have exhausted it, and we were given all kinds of assurances that proposed legislation would be placed before the House in a timely way to take care of this. It has not happened. On June 19, 2003, I believe, we passed the change to the Statutory Instruments Act in the Senate. I should like to see this matter brought to a head. I have kept my file on this and it is more than one inch thick. I would move that we give notice to the minister under section 19.1(2) of the Statutory Instruments Act, as outlined by counsel.

The Joint Chairman (Senator Bryden): So moved by Senator Moore. Do we have a seconder?

Mr. Kamp: I second the motion.

The Joint Chairman (Senator Bryden): It has been moved and seconded. I was part of the process before as a member of the committee. It is absolutely the case. This will be the first time, I believe, that we will follow the new procedure of a notice to the minister that will give the department an opportunity to respond within 30 days. We have no requirement to continue if the response is satisfactory to the committee but if it is not satisfactory, then the notice has been given and we can proceed to disallowance. All in favour?

Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): Let me remind members that the joint chairman has mentioned already the backlog of total files from 2001 to 2004, which totalled 995 instruments. That backlog has been reduced to 264 instruments, which is a 73 per cent reduction. I congratulate counsel and staff of the joint committee for doing a good job.

Something has been brought to my attention about certain fishery regulations. There are some technical problems with the regulations and the banning of fishing gear with lead content. I would ask counsel to report back to us on this matter. I did not have an opportunity to review the regulations. It has been brought to my attention in strong terms that some technical problems with the regulations exist in respect of banning certain fishing gear and anchors that contain lead.

Mr. Bernier: Perhaps I will contact the office of the joint chair to obtain additional details on the regulation and when it was made.


Mr. Bernier: I believe this letter is self-explanatory. The joint committee had requested that the minister supply a response before the first of the month and no reply has been received. The question is how the committee wishes to proceed.

The Joint Chairman (Mr. Grewal): Are there suggestions?

Mr. Wappel: I would suggest that we call the minister and the deputy minister to appear before the committee. We have no power to force the minister to come but we have the power to force the deputy minister to appear. Simply by asking that, we will receive a response.

The Joint Chairman (Mr. Grewal): Is it agreed that a letter to appear before the committee be sent to the minister and deputy minister?

Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): Should we set a time frame?

The Joint Chairman (Senator Bryden): We should give the minister and the deputy minister an opportunity to respond quickly without placing another time limit. We will do that later, if necessary, but first, we have to assume that people will respond to us.

Mr. Wappel: If I may, given the joint chairman's comments, perhaps we could have the matter brought back before this committee at the first meeting in April if we have not received a response.

The Joint Chairman (Mr. Grewal): Are members agreed?

Hon. Members: Agreed.


Mr. Rob Billingsley, Counsel to the Committee: Mr. Chairman, this and the next one would be fairly quick items, I expect. An error was made in publishing this order in the Canada Gazette. The schedule was inadvertently placed after the explanatory note, with the result that the schedule did not appear to form part of the order.

The order was properly made by the Governor-in-Council and the error arose at the publishing stage, so all that was required was that an erratum be published in the Canada Gazette to correct the error. This occurred in the December 1, 2004 issue of the Canada Gazette and the file can now be closed.


Mr. Chairman, counsel pointed out that this order used the name Health Canada rather than the official name, Department of Health, and sought assurance from the Public Service Commission that in future they would use the official name in their orders. This assurance was provided and the file can be closed.

The Joint Chairman (Mr. Grewal): Thank you.



(For text of documents, see Appendix A, p. 6A:1)

Mr. Billingsley: Mr. Chairman, counsel wrote to the department in August 2003 and raised 25 points with respect to these regulations. The department responded in April 2004 to say that they were developing new regulations as part of their regulatory reform project, and that counsel's comments would be taken into account as part of this process. No attempt was made to address the individual points raised in counsel's letter.

Counsel followed up with a letter indicating that although the committee was generally agreeable to having its concerns addressed in the course of the regulatory reform project, a full response was nonetheless expected to the points raised in the initial letter. In December 2004, the department wrote that it would provide a full reply to counsel's concerns once the policy elements of the new regulations ``have been finalized,'' anticipated for mid-2005.

The department appears to forget that notwithstanding that it may now be focused on developing the new regulations, the existing regulations remain in force and affect all manner of persons involved in the shipping industry, operators and crew members alike. As Mr. Bernier indicated at the last committee meeting, in relation to a similar regulation involving the same department, it is difficult to understand why, because of a policy review, the department is unable to respond to objections or questions raised by the committee.

For example, the third point in counsel's letter deals with the definition of short-run ferry. According to the definition, one of the defining features of a short-run ferry is that it operates between terminals that are ``in line of sight or nearly in line of sight.'' Counsel pointed out that the reference to terminals being nearly in line of sight was vague, and questioned the basis on which this determination would be made.

In the regulations, the requirements for crew members on short-run ferries are different from those on other ferries, so the issue of what constitutes a short-run ferry is important vis-à-vis complying with the regulations.

It may be useful for the committee to write to the minister in this instance to expedite a response from the department before the anticipated finalization of the policy review.

The Joint Chairman (Mr. Grewal): Any comments?

The Joint Chairman (Senator Bryden): Do we have any indication that the policy review is ongoing, or will be completed in the time frame? Did they not indicate that it would be done by the middle of 2005?

Mr. Billingsley: That was their anticipated date as of December 2004.

Mr. Bernier: As you will recall, Mr. Chairman, the global regulatory review of all Canada Shipping Act regulations is in two phases, phase one and phase two, in anticipation of the coming into force of the new Canada Shipping Act. We have no indication that they are not on schedule. Past experience in other areas would indicate that these massive regulatory review projects do tend to run a little later — or, at least, the initial forecast proves a little optimistic.

The Joint Chairman (Senator Bryden): For our information, to treat the 25 issues raised in your letter, can you give us an indication of what is involved in this from the point of view of time? Since there are 25 of them, is it likely to take them a huge amount longer than if there were one?

Mr. Bernier: To simply answer the committee will not take them any longer than it took us to write the letter. There are move civil servants over at Transport than there are working for the committee.

It could be a very short time; if they simply agreed with the committee, it will take about five minutes. I cannot say. They are the ones who enforce those regulations. They have to look at those issues.

For example, the point my colleague mentioned — is the ferry operating between two points that are nearly in line of sight? Well, either there are criteria or there are no criteria. If there are no criteria, all they have to do is say so and that, yes, if this provision appears in the new regulations, we will make sure that criteria are developed.

That is the best answer I can give you, unfortunately.

The Joint Chairman (Senator Bryden): I know it is not our job to do their job. In a situation like this, I tend to agree with our counsel that these are big projects and sometimes with the best of intentions, instead of it being the middle of this year, it will be the middle of next year and time will go on.

I wonder if something could be said in the letter that would give an indication to the recipient, if we are writing to the minister, what we would see as an appropriate response to us — if they could set out when this can happen, within a reasonable period of time.

Mr. Bernier: When the department approached the committee to ask whether the committee would agree to defer pursuing its objections to various Canada Shipping Act regulations because of the transition to the new act, the committee instructed counsel at that time to indicate approval, subject to three conditions. One of those was that the committee would continue to receive replies to questions or issues raised in relation to current regulations.

Once those answers are given, even if the answer is that there is a problem, I think the committee would quite willingly defer pursuing this and will not insist on remedial action being taken immediately. All we are asking for is a reply. We are not asking for more than that; just reply to the substance of objections so the committee knows where it is going, and then the committee will have its usual patience in terms of correcting the problems.

The Joint Chairman (Senator Bryden): That is very helpful. I have had the opportunity to read and sign some of the letters that counsel has prepared for us, and they are always done very well. I think it is helpful, if it is possible, to put into the letter that is addressed to them — not lead them around by the hand but at least say — the sorts of things that might be appropriate, that we can act on. Agreed?

Hon. Members: Agreed.

The Joint Chairman (Mr. Grewal): Will a letter be sent?

Senator Moore: There will be a letter?

Mr. Bernier: Yes, a letter to the minister.



(For text of documents, see Appendix B, p. 6B:1 )

Mr. Bernier: We have the same situation in this file as on the crewing regulations the committee just dealt with. Numerous issues were raised. No reply is given, on the ground that the policy content of new regulations is under discussion.

Again, Mr. Chairman, at this point in time, it is these regulations that are law in Canada, and the committee has to deal with what is rather than what might be in the future.

Can I assume that the same disposition will apply? We will mention those in the letter to the minister as well.

The Joint Chairman (Mr. Grewal): Any comments? Agreed?

Hon. Members: Agreed.


Mr. Bernier: I would suggest that this be covered by a letter to minister as well.

The Joint Chairman (Senator Bryden): On that point, is it the same minister for the last three regulations?

Mr. Bernier: Yes.

The Joint Chairman (Senator Bryden): Would it be possible to prepare one letter only?

Mr. Bernier: Yes.



Mr. Billingsley: The joint committee has been pursuing amendments to these regulations since shortly after they were made in 1988. The matter was last before this committee on March 25, 2004, at which time a chronology of the lengthy correspondence in the file was provided. Previous to that meeting, the department had advised that it expected the amendments would be approved by the regulations section of the Department of Justice by the end of May 2004.

Given the history of unmet expectations with respect to this file, the joint committee indicated that, if the amendments were not made by that date, the matter should be brought back before it at the earliest opportunity. Perhaps unsurprisingly, the amendments have not been made yet. Counsel wrote to the department in October 2004 to ask where matters stood, and has received no reply. It would appear to be high time to ask for the minister's cooperation in ensuring that the amendments are made without further delay.

Mr. Wappel: I do not agree with that. We should bring the appropriate official before the joint committee to explain the lack of response to our letter. It is annoying to see these files for which we have sent letters receiving no response from departments. Based on past experience, I find that when the joint committee requests the appearance of these people to appear, it does two things. It automatically generates an immediate response and it smartens them up to the fact that the next time they receive a letter from this committee, they had better answer it.

The minister is busy, will be given briefing notes and will have to follow them, unless he or she takes a particular interest in this matter. It would be appropriate to ask Ms. Deborah Crawford to appear before the joint committee to explain why she has not answered our letter in four months.

The Joint Chairman (Mr. Grewal): Are members agreed?

Hon. Members: Agreed.

Mr. Bernier: If I may, would that invitation be cancelled if a reply were received before the date to appear?

Mr. Wappel: I do not like to waste the committee's valuable time but I guess we would wait and see. I do not know about other members.


Ms. Guay: If the committee receives a satisfactory response, then someone does not have to come here needlessly. Based on the answer we receive, we will make a decision. What more would this witness have to say to us?


The Joint Chairman (Mr. Grewal): Are members agreed?

Hon. Members: Agreed.


Mr. Billingsley: The department agreed in September 2003 to amend these regulations to address concerns of a technical nature raised by counsel. At that time, the department noted that before being able to make the amendments they had a statutory obligation to consult with various entities including the territorial government, First Nations and the Mackenzie Valley Environmental Impact Review Board. Subsequent letters from the department indicated their drafting resources were committed to other regulatory initiatives. In their most recent letter of December 2004, the department advised they anticipate drafting the necessary amendments in fiscal year 2005-06. Due to the limited number and nature of the amendments, that may be considered unacceptable. We would suggest that progress be monitored in the usual fashion.

The Joint Chairman (Mr. Grewal): Are members agreed?

Hon. Members: Agreed.


Mr. Billingsley: The department's first anticipated date for the drafting of the necessary amendments to these regulations was early 1997. This date was subsequently pushed back to fall 1997 and then to summer 1998. In August 1999, we were told that 12 of 13 parts of the regulations were ready for submission to the regulations section of the Department of Justice. Two years later, in July 2001, we were informed that the department anticipated forwarding the amendment package to the regulations section for a ``final review'' by the end of that year. The department's most recent letter, dated February 15, 2005, states that ``Department officials anticipate that drafting of the amendments will begin during the winter 2004-05.'' One might reasonably conclude from the most recent correspondence that this file is regressing and not progressing. A letter to the minister from the joint chairmen would appear to be in order.

Mr. Wappel: This is a curious timeline because the letter is written February 15, or at least it is date-stamped February 15, which is more or less two months into winter of 2004-05, and yet the letter uses the future tense ``will begin,'' as if the letter had been drafted prior to the winter and then date-stamped February 15. Winter is almost over and in two weeks or so it will be spring. There is no way that they have begun the drafting. This is the same gentleman who has not responded in the other file, even though he was asked to respond, although this is a different issue. I simply do not believe the context of the letter and I agree with counsel that the file appears to be regressing. What would the letter ask the minister to do? What is counsel suggesting that the minister do?

Mr. Billingsley: I would draw the minister's attention to the file and ask that the drafting be expedited.

Mr. Bernier: If there is drafting to be done, that would be fine. In 2001, the joint committee was informed that the amendments were drafted. It is difficult to know what we are dealing with.

Ms. Wasylycia-Leis: Would a letter be satisfactory? This is a glaring example of departmental or ministerial inefficiency or deliberate obstinacy. Is it an attempt to wait this one out for something else to happen so that they do not have to bring in the amendments?

Perhaps the joint committee should do something stronger than send a letter, such as inviting the minister or departmental officials to appear. During this time, what incidents have occurred in terms of on board health and safety issues for which the absence of regulations has caused serious problems? I recall in recent years when a flu strain was picked up by an entire trainload of people. Would regulations have brought greater attention to this issue in an effort to prevent similar incidents? The matter of dragging this out sounds terribly questionable.

Senator Moore: The joint committee has been more than patient. Rather than write another letter asking when the department intends to draft the amendments, let us invite Mr. William McCullough to appear, or his superior, and ask face-to-face when the department will get this done. The joint committee wants this file closed before the summer recess. The matter has been ongoing for years so I do not think that a letter is the appropriate action now because they do not respond to letters. We have seen that over the last three or four years.

Mr. Bernier: Is Mr. Wappel up to it?

Mr. Wappel: Keep the letters coming, I am okay.

Mr. Lee: We can do that.

Ms. Wasylycia-Leis: Would going to the director general get us anywhere or do we need to raise it to a higher level?

The Joint Chairman (Mr. Grewal): I think we should go to a deputy minister.

The Joint Chairman (Senator Bryden): I want to issue a word of caution in regard to doing that. We have been reasonably successful at escalating the level of concern in the instance that we discussed before — the operative that our counsel had been dealing with on Mr. Wappel's suggestion. This is a pretty high-sounding title — director general, executive services.

Senator Moore: Maybe, chair, we could combine our thoughts here and issue the letter back to Mr. McCullough and let him know in the letter if we do not have a satisfactory response from him in 30 days, we will be requesting his deputy to appear before us and explain.

The Joint Chairman (Senator Bryden): I guess I was one step ahead of that. I am saying ask him to come and explain why he is not responding. That should have the same reaction that Mr. Wappel is suggesting we would have in the other instance.

Mr. Bernier: Mr. McCullough is the designated instruments officer, so he is the one officer in that department designated to deal with it.

Senator Moore: We can get him.

Mr. Bernier: I take it there is no progress here. If the drafting is now starting, the drafting is now starting. The issue for this committee is to hear why the committee was informed in 1997, 1998 and 2001 that the drafting was complete, only to hear today that it has not even begun. It is more in the nature of an explanation.

Senator Moore: I agree with the deputy chair's suggestion.

Ms. Wasylycia-Leis: Why after eight years — that is a long time for something to do with safety on trains, is it not?

Mr. Bernier: We do have one issue of vires. The other matters were matters of drafting in the regulations. In defence of the department, I think the Department of Transport, and most departments, are very prompt to correct a situation where an issue does involve health and safety. It does not mean, of course, that other issues should wait for decades before being fixed.

The Joint Chairman (Mr. Grewal): The agreement I see is that we call Mr. McCullough to appear before the committee.

Hon. Members: Agreed.


(For text of documents, see Appendix C, p. 6C:1)

Mr. Billingsley: Mr. Chairman, the department has promised to amend the instrument to correct the problems identified in the first point of counsel's letter, and we will monitor fulfilment of this commitment in the usual way.

As for the second point, the department has indicated they are seeking advice from the regulations section of the Department of Justice. We propose to send a letter asking the department if they are now in a position to respond to that point.

The Joint Chairman (Mr. Grewal): Agreed?

Hon. Members: Agreed.


(For text of documents, see Appendix D, p. 6D:1 )

Mr. Bernier: Mr. Chairman, a number of points were raised with Public Works in relation to these regulations. Amendments have been promised in relation to the issues raised in points 1 to 6 of the letter of November 21, 9 to 13, and 15.

In relation to point number 14, the wording of the provisions in question is being reviewed. As regards the errors noted in section 43 of the enabling statute, which is dealt with in point 16 of Mr. Rousseau's letter, the department has requested that a correction be included in the next miscellaneous statute law amendment bill.

This brings me to point 7, which concerns section 10(j) of the regulations. The apparent purpose of that provision is to make contravention of the conditions of a certificate punishable as though it was a contravention of the regulations. That is a familiar theme, if you recall the first item on the agenda today.

The department, based on advice from the Department of Justice, disputes that this provision is illegal, but has agreed to consider the necessity and propriety of the section. I would suggest that the committee should wait for the results of that review and inquire into that.

Finally, on point 8, which concerns section 15(6) of the regulations, the department does not plan to amend the section. That section would allow the minister to require any person other than the applicants for registration for an exemption to provide information. It would also allow him to require any minister to provide information.

Mr. Rousseau raised questions at two levels. First, he questioned whether this regulation is authorized as a regulation respecting security assessments. Second, he raised a series of questions about the enforceability of this provision.

The department takes the position that the regulations are necessary as a regulation respecting security assessments. I suppose that even if that is conceded for the time being, there remains to explain how this provision can possibly be enforced. There was no reply on that point, and we suggest that a reply to those questions should be sought before the committee proceeds.

If that is agreeable to the committee, the same letter would inquire into the progress of the many amendments that have been promised.

The Joint Chairman (Mr. Grewal): Agreed?

Hon. Members: Agreed.



(For text of documents, see Appendix E, p. 6E:1)

Mr. Bernier: The undertaking by Ms. Barrados is fully satisfactory. The Committee can consider this file closed.



(For text of documents, see Appendix F, p. 6F:1 )



(For text of documents, see Appendix G, p. 6G:1 )


(For text of documents, see Appendix H, p. 6H:1 )

Mr. Bernier: Under the heading of action promised, the committee has been given eight undertaking to amend regulations.

In addition, I would like to point out that the issue of vires raised in relation to the hazardous products ice hockey helmets regulations has finally been resolved. The department has agreed to delete item 43 from Part 2 of Schedule I to that act, and add helmets that do not conform to the national standard to Part 1 of that schedule.

That was the solution first proposed by Mr. Rousseau in 1999. It took us a while to explain things, and have them understood. Implementation of these undertakings will be monitored in the usual way.


(For text of documents, see Appendix I, p. 6I:1 )


(For text of documents, see Appendix J, p. 6J:1)


(For text of documents, see Appendix K, p. 6K:1 )


(For text of documents, see Appendix L, p. 6L:1)

As for the instruments listed under the heading action taken, four promised amendments have been made. One erratum has been published to correct the long title of an instrument. Finally, an amendment to the Income Tax Act has resolved a concern of legality that the committee had.

There are also, on the agenda, some of 93 instruments have been reviewed and are reported to the committee without comment.

The Joint Chairman (Mr. Grewal): All right. Any further comments?

Hon. Members: No.

Mr. Wappel: The budget was dealt with?

The Joint Chairman (Mr. Grewal): Yes.

The committee adjourned.

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