[Federal Register Volume 60, Number 184 (Friday, September 22, 1995)]
[Rules and Regulations]
[Pages 49322-49326]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-23590]




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Part II





Department of Transportation





_______________________________________________________________________



Federal Highway Administration



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49 CFR Part 382



Controlled Substances and Alcohol Use and Testing; Foreign-Based Motor 
Carriers and Drivers; Final Rule

  Federal Register / Vol. 60, No. 184 / Friday, September 22, 1995 / 
Rules and Regulations   

[[Page 49322]]


DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Part 382

[FHWA Docket No. MC-93-3]
RIN 2125-AD11


Controlled Substances and Alcohol Use and Testing; Foreign-Based 
Motor Carriers and Drivers

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Final rule.

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SUMMARY: The FHWA is extending the applicability of rules on controlled 
substances and alcohol use and testing to include foreign-based drivers 
of motor carriers operating in the United States. This action is taken 
pursuant to the Omnibus Transportation Employee Testing Act of 1991 and 
is consistent with the international obligations of the United States. 
The rules will apply to all foreign-based drivers and employers, who 
are predominantly from Canada and Mexico, to the same extent as those 
based in the United States.

EFFECTIVE DATE: This rule is effective October 23, 1995.

FOR FURTHER INFORMATION CONTACT: For information regarding FHWA alcohol 
and controlled substances testing requirements regarding 49 CFR part 
382: Office of Motor Carrier Research and Standards, (202) 366-1790. 
For information regarding alcohol and controlled substances testing 
legal issues: Office of the Chief Counsel--Motor Carrier Law Division, 
(202) 366-0834. For requests for presentations on implementation of the 
alcohol and controlled substance testing requirements in foreign 
countries: International Program (HPS-1), (202) 366-5370, Office of 
Motor Carrier Planning and Customer Liaison, Federal Highway 
Administration, Department of Transportation, 400 Seventh Street, SW., 
Washington, D.C. 20590. Office hours are from 7:45 a.m. to 4:15 p.m., 
e.t., Monday through Friday, except United States Federal holidays.
    For information regarding Department of Transportation (DOT) 
procedural issues and testing protocols in 49 CFR part 40: Director (S-
1), (202) 366-3784, Office of Drug Enforcement and Program Compliance, 
Room 10317, Office of the Secretary of Transportation, U.S. Department 
of Transportation, 400 Seventh Street, S.W., Washington, D.C. 20590. 
Office hours are from 9:00 a.m. to 5:30 p.m., e.t., Monday through 
Friday, except United States Federal holidays.

SUPPLEMENTARY INFORMATION:

I. Background

    On November 21, 1988, the FHWA, along with certain other agencies 
within the Department of Transportation (the Department), adopted 
regulations requiring pre-employment, periodic, post-accident, 
reasonable cause and random controlled substances testing of safety 
sensitive employees, including commercial motor vehicle (CMV) drivers. 
The FHWA rule applied to certain CMV drivers while operating in the 
United States, regardless of whether they were based in a foreign 
country or the United States. The rule provided generally, however, 
that it would not apply to any person for whom compliance would violate 
the domestic laws or policies of another country. The rule as 
originally published further provided that it would not be effective 
until January 1, 1990, with respect to any person for whom a foreign 
government contends that application of the rules raises questions of 
compatibility with that country's laws or policies. See 53 FR 47134, 
codified at 49 CFR 391.81 et seq.
    The FHWA subsequently amended its regulation to delay the effective 
date of controlled substances testing requirements for foreign-based 
drivers of foreign-based motor carriers on four occasions. See 54 FR 
39546, September 27, 1989; 54 FR 53294, December 27, 1989; 56 FR 18994, 
April 24, 1991; 57 FR 31277, July 14, 1992. The primary reason for each 
delay was because the DOT thought it would be more effective to address 
the problem through bilateral or multilateral agreements and wanted to 
continue exploring the possibility of such an agreement. Prior to 
implementation of the North American Free Trade Agreement (NAFTA) on 
December 17, 1995, the only foreign- based motor carriers operating 
throughout the United States in significant numbers will be Canadians, 
with Mexicans confined to operating in limited commercial zones.
    Meanwhile, on October 28, 1991, the Omnibus Transportation Employee 
Testing Act of 1991 (Omnibus Act) was enacted. 49 U.S.C. 31306. The 
Omnibus Act requires the Secretary of Transportation to issue 
regulations requiring controlled substances and alcohol testing of CMV 
drivers who are subject to the commercial driver's licensing (CDL) 
requirements of the Commercial Motor Vehicle Safety Act of 1986. 49 
U.S.C. Chapter 313. The final rule implementing such testing was 
published on February 15, 1994. See 59 FR 7302, codified at 49 CFR part 
382. The 1994 rule replaced the current controlled substances testing 
rule in 49 CFR part 391, and instituted alcohol testing. With part 391 
to be completely superseded by part 382 on January 1, 1996, the most 
recent compliance date in part 391 for foreign-based motor carriers was 
removed. See 60 FR 54, January 3, 1995.
    The Omnibus Act applies to motor carriers and drivers operating in 
the United States, which includes foreign employers and drivers. The 
only express provision for foreign-based operations is that the new 
rule be ``consistent with international obligations of the United 
States, and * * * shall consider applicable laws and regulations of 
foreign countries.'' 49 U.S.C. 31306(h). Thus, foreign-based drivers 
are required by the statute to be subject to testing to the extent such 
rules are consistent with United States international obligations, and 
the Secretary is granted the authority to deem the requirement 
satisfied by, and must take into consideration, the laws and 
regulations of foreign nations.
    As part of its consideration of foreign laws, the FHWA solicited 
information from interested parties regarding the applicability of part 
382 to foreign-based drivers. 57 FR 59536 (December 15, 1992) (advance 
notice of proposed rulemaking); 59 FR 7528 (February 15, 1994) (notice 
of proposed rulemaking). In the notice of proposed rulemaking (NPRM), 
the FHWA proposed to apply part 382 to foreign-based operations 
beginning on January 1, 1996, while continuing to explore the 
possibility of entering into agreements to recognize other nations' 
testing programs for purposes of compliance with part 382. In today's 
document, based upon comments received and the FHWA's intent to provide 
regulatory flexibility for foreign employers, the FHWA is adopting July 
1, 1996, as the effective date for large foreign employers and drivers 
to comply with these regulations and July 1, 1997, as the effective 
date for small foreign employers and drivers to comply with these 
regulations. The FHWA has reconsidered the period when implementation 
of the rule is necessary and believes now that providing a two-tier 
implementation phase-in period for this rulemaking is consistent with 
the implementation phase-in periods provided to domestic employers in 
1994. The FHWA believes that this is necessary to provide consistency 
and fairness to foreign employers.
    On December 19, 1994, in a letter to United States Secretary of 
Transportation Federico Pena, Canadian Transport Minister Douglas Young 
indicated that the Canadian government 

[[Page 49323]]
would not be introducing legislation on prevention of substance use in 
transportation at this time. Minister Young further stated that 
Canada's motor carrier industry should be allowed to develop a 
voluntary program ``tailored to their particular needs.''

II. Comments

    There were twelve comments to the docket for the NPRM of February 
15, 1994. Two of the twelve comments did not address the foreign-based 
testing issue. All references to a foreign nation in the other comments 
were to Canada or Mexico, with specific information provided about 
Canada but not about Mexico. No other nations were mentioned in the 
comments as a base from which drivers or motor carriers operate in the 
United States. The FHWA is aware of rare, limited instances of drivers 
from other nations operating in the United States.
    Seven relevant comments were received prior to Transport Minister 
Young's letter to Secretary Pena, from the American Bus Association 
(ABA), the Owner-Operator Independent Drivers Association (OOIDA), the 
American Trucking Associations, Inc. (ATA), the Embassy of Canada, the 
Canadian Bus Association (CBA), the Ontario Motor Coach Association 
(OMCA), and the Canadian Trucking Association (CTA). Three comments 
were received from one organization, the Canadian Coalition of Motor 
Carriers on Substance Use (CCMCSU), after Transport Minister Young's 
letter. The CCMCSU is a coalition of the CBA, the CTA, the Private 
Motor Truck Council of Canada, and the COM-CAR Owner-Operators' 
Association, and represents about 2,000 Canadian motor carriers. There 
are approximately 8,450 Canadian motor carriers listed on the FHWA's 
Motor Carrier Management Information System census database that 
operate in the United States.

A. Applicability

    The ABA and the ATA strongly support applying the alcohol and 
controlled substances testing regulations to foreign-based drivers and 
motor carriers operating in the United States. The OOIDA stated that 
although it has never supported alcohol and controlled substances 
testing without cause, because testing is required of United States-
based employers and drivers, ``the Association reluctantly takes the 
position that the scope of the controlled substance and alcohol testing 
regulations should be expanded to include drivers of foreign-based 
motor carriers.''
    The comments of the CBA, CTA, and OMCA all supported the Embassy of 
Canada's comment favoring continuation of reciprocity discussions and 
negotiations in the interest of efficiency, cost, and comity. Once it 
became clear that Canada would not have reciprocal standards, at least 
for testing requirements, the CCMCSU commented that it was prepared to 
begin assisting implementation of the FHWA alcohol and controlled 
substances testing regulations in Canada.
    FHWA Response: The statutory directive is clear. All drivers 
operating in the United States are to be subject to controlled 
substances and alcohol testing, regardless of domicile. The safety 
concerns which led to the Omnibus Act pertain equally to United States 
and foreign-based drivers. Furthermore, it would be unfair and 
competitively harmful to United States' drivers and employers to 
require them to incur significant costs not borne by foreign-based 
operations. This is particularly true in light of provisions in NAFTA 
designed to open United States motor carrier markets to operators based 
in Mexico, and vice versa, beginning in December 1995.
    From their inception in 1988, part 391 controlled substances 
testing requirements applied to foreign-based carriers. Though 
Canadians continued to operate throughout the United States, foreign 
implementation was delayed several times while legal and other issues 
were discussed bilaterally with Canada. Foreign application of part 382 
has, in effect, been delayed for the same reason. Now that it is clear 
that Canada will not establish, and further discussion will not result 
in, comprehensive national standards comparable to part 382, there is 
no reason to delay further, and, indeed, every reason to advance, this 
important safety rule. The imminence of Mexican operations in the 
United States reinforces this need.
    Applicability of part 382 will therefore be extended to that class 
of drivers currently expressly excluded--foreign-based drivers of 
foreign-based motor carrier employers while operating in the United 
States. The rule as written can be administered wholly in the United 
States, though perhaps not most efficiently (see discussion below on 
Testing Procedures). Most parts of the rule can also be administered in 
Canada or Mexico, though some parts of the rule will have to be 
administered in the United States, such as use of U.S. Department of 
Health and Human Services (DHHS) certified laboratories, all of which 
are in the United States. In any event, unless otherwise provided by 
the FHWA at a later date based on recognition of comparable foreign 
standards, the rule will apply to foreign-based drivers of foreign-
based employers to exactly the same extent and in exactly the same 
manner as to domestic operators.
    Nevertheless, the FHWA remains very interested in continuing to 
explore bilateral agreements that would have the effect, subject to the 
FHWA's rulemaking and waiver authority in this area, of recognizing all 
or part of any Canadian program and Mexican standards as comparable to 
part 382, ``consistent with the international obligations of the United 
States, and * * * [taking] into consideration any applicable laws and 
regulations of foreign countries.'' Two examples of comprehensive 
reciprocity agreements with Canada and Mexico are the Memoranda of 
Understanding that recognize their commercial driver's license (CDL) 
systems as equivalent to the United States requirements. See 54 FR 
22392 (May 23, 1989); 57 FR 31454 (July 16, 1992).

B. Implementation Dates

    The FHWA proposed in the NPRM that all foreign employers be 
required to comply with part 382 requirements beginning on January 1, 
1996, one year after large United States carriers, and the same day as 
smaller United States carriers. The ABA commented that the date should 
be January 1, 1995, arguing that there was no justification for 
permitting discrimination against domestic motor carriers by granting 
an additional year to large foreign employers. The ATA hoped that 
further extension of the deadline would be unnecessary, but recognized 
``the complexities of imposing (the testing) requirements on foreign-
based motor carriers and drivers, and that the details remain to be 
worked out as an integral part of harmonization of medical standards.'' 
The CCMCSU requested that FHWA impose testing requirements one year 
from the date of the final rule, in order to provide adequate time to 
develop and implement effective programs and overcome the perceived 
level of confusion of its members about implementing testing programs.
    FHWA Response: The FHWA is most concerned with the effective 
implementation of this program and has always provided reasonable 
implementation schedules to domestic motor carriers to implement the 
complex requirements of controlled substances and alcohol testing. 
Given the changing nature and source of the DOT testing programs since 
1988 and 

[[Page 49324]]
the numerous delays, the FHWA believes it would be unreasonable to 
expect a foreign-based employer to have sufficient understanding to 
begin implementation immediately.
    The FHWA believes the best course is to allow foreign-based 
employers a similar implementation schedule as was provided to domestic 
employers. Large domestic employers were provided approximately one 
year to implement a testing program, while small employers were 
provided two years. The purpose was to give employers with different 
capabilities and resources sufficient time to implement technically 
sound testing programs.
    Therefore, the FHWA has decided that large foreign-based employers 
will be required to implement part 382 on July 1, 1996, and small 
foreign-based employers will be required to implement part 382 on July 
1, 1997. Foreign employers may not implement part 382 testing 
requirements until the dates specified.
    Consistent with implementation by domestic employers, the factor 
which determines whether a foreign-based employer is considered large 
or small is the number of drivers of CMVs it employs or uses in North 
American operations on a certain date. That date will be December 17, 
1995, which correlates with the NAFTA implementation date for allowing 
Mexican drivers to operate in California, Arizona, New Mexico, and 
Texas. Thus, all drivers assigned by the foreign-based employer to 
operate in North America on December 17, 1995, are to be included in 
the count of drivers.

C. Testing Procedures

    Various comments from Canadian entities have requested that 
laboratories certified in Canada be acceptable for analysis of urine 
specimens for controlled substance testing. The CCMCSU also has asked 
whether foreign collection sites, medical review officers (MRO), 
substance abuse professionals (SAP), breath alcohol technicians (BAT), 
and other personnel involved in the testing process will be allowed to 
provide services in Canada, or may only United States-based providers 
provide such services.
    FHWA Response: With respect to testing for controlled substances, 
the Omnibus Act requires that the Secretary incorporate the scientific 
and technical guidelines established by DHHS, including forensic 
standards for laboratory procedures and certification. The DOT has 
fulfilled this directive by requiring that all DOT-mandated testing be 
conducted only by DHHS-certified laboratories, all of which are 
currently in the United States.
    The DOT recognizes the interest that Canadians have in using 
Canadian laboratories. Yet, it is critical that the integrity of the 
testing process be protected, which is why DHHS certification is 
required for testing in the United States. The DOT will work with the 
DHHS, Canada, and Mexico in determining whether foreign laboratory 
procedures may be DHHS certified or are forensically comparable such 
that reciprocity is possible.
    As to the other elements mentioned, there is no requirement that 
urine collection personnel, MROs, SAPs, or BATs be licensed, certified, 
or trained in the United States. However, MROs and SAPs must be 
appropriately licensed or certified by the jurisdiction in which they 
perform such functions. The definition of an SAP may include 
professional categories irrelevant in Canada and Mexico, particularly 
certification by the National Association of Alcohol and Drug Abuse 
Counselors; however, the DOT is willing to discuss reciprocity with 
regard to national counterparts.

D. Enforcement

    The ATA and the CCMCSU provided comments regarding the enforcement 
of the alcohol and controlled substances testing regulations on 
foreign-based motor carriers and drivers. The ATA suggests that 
foreign-based drivers be required to join a United States-based 
consortium within 30 days of their initial entry into the United 
States, pass both alcohol and controlled substance tests, and be issued 
tamper-resistant photo identification cards documenting compliance that 
must be presented to United States border officials as a condition of 
entry into the United States. The CCMCSU notes that it will work with 
FHWA to facilitate and educate Canadian motor carriers about compliance 
with these new rules, and suggests that the FHWA coordinate with 
Transport Canada officials to address program enforcement issues.
    FHWA Response: Enforcement of controlled substances and alcohol 
testing requirements must be seen in the context of the entire motor 
carrier safety program. The United States and Canada have had a long-
term, ongoing, and successful relationship enforcing motor carrier 
safety regulations. The distinguishing factor in the testing area is 
the absence of regulatory standards from Transport Canada. The FHWA 
will work with Transport Canada and the Canadian provincial governments 
to develop enforcement systems, using existing systems to the extent 
possible, but also considering some form of certification of compliance 
and other innovative methods.
    The situation with Mexico is altogether different. Since Mexicans 
will only begin operating in the United States in December 1995, the 
enforcement systems in place on the northern border may be lacking on 
the southern. Controlled substances and alcohol testing enforcement 
will be a part of any systems established. Reciprocity and innovative 
methods will be considered.

III. Final Rule

    The applicability section of the controlled substances and alcohol 
testing rule is being amended to include coverage of foreign-based 
drivers of foreign-based carriers. To accomplish this, 
Sec. 382.103(c)(4), which excludes foreign-based carriers, is deleted. 
The implementation dates of the requirements of 49 CFR parts 40 and 382 
will go into effect on July 1, 1996, for large foreign employers, and 
will go into effect on July 1, 1997, for small foreign employers. 
Accordingly, Sec. 382.115 is being amended to require foreign-based 
carriers to implement the rule by July 1, 1996, and July 1, 1997, 
whichever is applicable.

IV. Education and Technical Assistance

    The FHWA is committed to assisting foreign governments, motor 
carriers, and drivers to understand and implement effective alcohol and 
controlled substance testing programs that meet the FHWA requirements. 
The FHWA will, to the extent possible, make presentations, attend 
seminars, and meet with interested parties to assist with the foreign 
implementation of the FHWA alcohol and controlled substances testing 
rules. If a group of foreign entities would like FHWA involvement in 
educating their members or providing technical assistance in 
implementing alcohol and controlled substances testing programs, please 
provide a written request to the FHWA International Program, at least 4 
weeks in advance, at the address noted above under the caption For 
Further Information Contact. 

[[Page 49325]]


Rulemaking Analyses and Notices; Executive Order 12866 (Regulatory 
Planning and Review) and DOT Regulatory Policies and Procedures

    The FHWA has determined that this action is not a significant 
regulatory action within the meaning of Executive Order 12866 but is 
significant within the meaning of Department of Transportation 
regulatory policies and procedures. The FHWA prepared a regulatory 
evaluation for the proposed rule. No comments were received with 
respect to the evaluation. The evaluation indicates that the rule will 
have a positive impact of $8.5 million discounted over ten years. A 
copy of the regulatory evaluation is included in the docket for this 
final rule.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 
5 U.S.C. 601-612), the FHWA has evaluated the effects of this rule on 
small entities. Based on the regulatory evaluation, the FHWA believes 
that the impact on small entities will be minimal. Furthermore, it 
should be noted that the Omnibus Act mandates alcohol and controlled 
substances testing irrespective of the size of the entities.
    For these reasons, the FHWA certifies that this action will not 
have a significant economic impact on a substantial number of small 
entities.

Executive Order 12612 (Federalism Assessment)

    This action has been analyzed in accordance with the principles and 
criterion contained in Executive Order 12612, and it has been 
determined that the proposed rulemaking has no federalism implications 
to warrant the preparation of a Federalism Assessment. This action 
would require foreign- domiciled employers to test their drivers for 
the use of controlled substances and alcohol. The action does not place 
any requirements on the States to comply with this rule.

Executive Order 12372 (Intergovernmental Review)

    Catalog of Federal Domestic Assistance Program Number 20.217, Motor 
Carrier Safety. The regulations implementing Executive Order 12372 
regarding intergovernmental consultation on Federal programs and 
activities apply to this program.

Paperwork Reduction Act

    The information collection requirements associated with compliance 
by foreign employers and drivers was included in the paperwork approval 
request submitted to and approved on February 28, 1994, by the Office 
of Management and Budget (OMB) under the Paperwork Reduction Act of 
1980, 44 U.S.C. 3501 et seq. and has been assigned OMB control number 
2125- 0543, approved through March 31, 1997.

National Environmental Policy Act

    The agency has analyzed this action for the purpose of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and has 
determined that this action would not have any effect on the quality of 
the environment.

Regulation Identification Number

    A regulation identification number (RIN) is assigned to each 
regulatory action listed in the Unified Agenda of Federal Regulations. 
The Regulatory Information Service Center publishes the Unified Agenda 
in April and October of each year. The RIN number contained in the 
heading of this document can be used to cross reference this action 
with the Unified Agenda.

List of Subjects in 49 CFR 382

    Alcohol testing, Controlled substances testing, Highway safety, 
Highways and roads, Motor carriers, Motor vehicle safety.

    Issued on: September 19, 1995.
Federico Pena,
Secretary of Transportation.

Rodney E. Slater,
Federal Highway Administrator.

    In consideration of the foregoing, the FHWA is amending 49 CFR, 
subtitle B, chapter III, part 382 as set forth below:

PART 382--CONTROLLED SUBSTANCES AND ALCOHOL USE AND TESTING--
[AMENDED]

    1. The authority citation for part 382 continues to read as 
follows:

    Authority: 49 U.S.C. 31133, 31136, 31301 et seq., 31502; and 49 
CFR 1.48.

    2. Section 382.103 is revised to read as follows:


Sec. 382.103  Applicability.

    (a) This part applies to every person and to all employers of such 
persons who operate a commercial motor vehicle in commerce in any 
State, and is subject to:
    (1) The commercial driver's license requirements of part 383 of 
this subchapter;
    (2) The Licencia Federal de Conductor (Mexico) requirements; or
    (3) The Canadian National Safety Code commercial driver's license 
requirements.
    (b) An employer who employs himself/herself as a driver must comply 
with both the requirements in this part that apply to employers and the 
requirements in this part that apply to drivers. An employer who 
employs only himself/herself as a driver shall implement an alcohol and 
controlled substances testing program that includes more persons than 
himself/herself as covered employees in the random testing pool.
    (c) This part shall not apply to employers and their drivers:
    (1) Required to comply with the alcohol and/or controlled 
substances testing requirements of parts 653 and 654 of this title; or
    (2) Granted a full waiver from the requirements of the commercial 
driver's license program; or
    (3) Who have been granted a State option waiver from the 
requirements of part 383 of this subchapter.
    3. Section 382.115 is revised to read as follows:


Sec. 382.115  Starting date for testing programs.

    (a) Large domestic employers. Each employer with fifty or more 
drivers on March 17, 1994, will implement the requirements of this part 
beginning on January 1, 1995.
    (b) Small domestic employers. Each employer with fewer than fifty 
drivers on March 17, 1994, will implement the requirements of this part 
beginning on January 1, 1996.
    (c) All domestic employers. Each domestic employer that begins 
commercial motor vehicle operations after March 17, 1994, but before 
January 1, 1996, will implement the requirements of this part beginning 
on January 1, 1996. However, such an employer may be subject to the 
requirements of Part 391, Subpart H on the date they begin operations, 
if operating commercial motor vehicles in interstate commerce. A 
domestic employer that begins commercial motor vehicle operations on or 
after January 1, 1996, will implement the requirements of this part on 
the date the employer begins such operations.

[[Page 49326]]

    (d) Large foreign employers. Each foreign-domiciled employer with 
fifty or more drivers assigned to operate commercial motor vehicles in 
North America on December 17, 1995, must implement the requirements of 
this part beginning on July 1, 1996.
    (e) Small foreign employers. Each foreign-domiciled employer with 
less than fifty drivers assigned to operate commercial motor vehicles 
in North America on December 17, 1995, must implement the requirements 
of this part beginning on July 1, 1997.
    (f) All foreign employers. Each foreign-domiciled employer that 
begins commercial motor vehicle operations in the United States after 
December 17, 1995, but before July 1, 1997, must implement the 
requirements of this part beginning on July 1, 1997. A foreign employer 
that begins commercial motor vehicle operations in the United States on 
or after July 1, 1997, must implement the requirements of this part on 
the date the foreign employer begins such operations.

[FR Doc. 95-23590 Filed 9-21-95; 8:45 am]
BILLING CODE 4910-22-P