[Federal Register Volume 62, Number 104 (Friday, May 30, 1997)]
[Proposed Rules]
[Pages 29320-29323]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-14119]
[[Page 29320]]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 51
[CC Docket No. 97-134; FCC 97-171]
Treatment of Guam Telephone Authority and Other Similarly
Situated LECs as ILECs Under Section 251(h)(2) of the Communications
Act
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: The Notice of Proposed Rulemaking for CC Docket No. 97-134
tentatively concludes that, pursuant to section 251(h)(2) of the
Communications Act, the Guam Telephone Authority (GTA) and similarly
situated carriers, if any, can be treated as incumbent LECs for
purposes of section 251(c) of the Communications Act, as amended, if
three conditions are met: Under section 251(h)(2)(A), the LEC must
``occup[y] a position in the market for telephone exchange service
within an area that is comparable to the position occupied by a carrier
described in (section 251(h)(1)).'' Under section 251(h)(2)(B), where
the LEC at issue provides local exchange service to all or virtually
all of the subscribers in an area that did not receive telephone
exchange service from NECA member as of the date of enactment of the
1996 Act. Under section 251(h)(2)(C), treating the LEC as an incumbent
LEC must be ``consistent with the public interest, convenience and
necessity and the purposes of (section 251).''
DATES: Comments are due July 7, 1997, and reply comments are due July
28, 1997.
FOR FURTHER INFORMATION CONTACT: Alex Starr, Attorney, Common Carrier
Bureau, Policy and Program Planning Division, (202) 418-1580.
SUPPLEMENTARY INFORMATION: Regulatory Flexibility Analysis: This is a
summary of the Commission's Notice of Proposed Rulemaking adopted May
16, 1997 and released May 19, 1997.
Synopsis of Notice of Proposed Rulemaking
I. Introduction
1. In a Declaratory Ruling, CCB Pol 96-18, released simultaneously
with this NPRM, the Commission determined that GTA is not an
``incumbent local exchange carrier'' within the meaning of section
251(h)(1). This determination means that, absent a Commission decision
to provide for the treatment of GTA as an incumbent LEC for purposes of
section 251, GTA will presently be under no legal mandate to comply
with the obligations of section 251(c). See Local Competition Order, 61
FR 45476 (August 29, 1996).
2. IT&E and GCT suggest section 251(h)(2) as an alternative for
applying the obligations of section 251(c) to GTA. IT&E asserts that
section 251(h)(2) permits the application of the obligations of section
251(c) to GTA because ``GTA meets the spirit, if not the letter, of the
statutory definition of an `incumbent LEC.' '' GCT maintains that
section 251(h)(2) permits the application of the obligations of section
251(c) to GTA because GTA ``occupies a position `comparable' to the
position occupied by an incumbent LEC (i.e., a quasi-monopoly
position).'' The Guam Commission notes that ``the Commission may, by
rule, provide that GTA is comparable to an incumbent LEC pursuant to
section 251(h)(2),'' but ``section 251(h)(2) may not be applicable in
this instance'' because ``GTA has not replaced an ILEC.''
3. Section 251(h)(2) allows the Commission to treat a LEC (or class
or category of LECs) as an incumbent LEC, for purposes of section 251,
when the LEC ``occupies a position in the market for telephone exchange
service within an area that is comparable to the position occupied by a
carrier described in (section 251(h)(1))''; 47 U.S.C. section 251
(h)(2)(A) the LEC has ``substantially replaced an incumbent local
exchange carrier described in (section 251(h)(1))''; 47 U.S.C. section
251(h)(2)(B) and ``such treatment is consistent with the public
interest, convenience, and necessity and the purposes of (section
251).'' 47 U.S.C. 251(h)(2)(C). In this NPRM, we tentatively conclude
that each of these requirements is met with respect to GTA.
4. Regarding the first requirement, we tentatively conclude that
GTA occupies a position in the market for telephone exchange service in
its service area that is comparable to an incumbent LEC's, because GTA
appears to occupy a dominant position in that market. Regarding the
second requirement, we tentatively reject an overly literal reading of
the statutory language that would produce absurd results at odds with
manifest Congressional intent. Instead, we tentatively conclude that
the second requirement is satisfied where the LEC at issue provides
local exchange service to all or virtually all of the subscribers in an
area that did not receive telephone exchange service from a NECA member
as of the date of enactment of the 1996 Act. Accordingly, we also
tentatively conclude that GTA satisfies the second requirement, because
GTA apparently provides all or virtually all of the telephone exchange
service in Guam, and no NECA member provided telephone exchange service
in Guam as of February 8, 1996. Regarding the third requirement, we
tentatively conclude that treatment of GTA as an incumbent LEC would
serve the public interest, convenience, and necessity and the purposes
of section 251, because such treatment would foster the development of
competitive telecommunications markets in Guam. In light of the
foregoing tentative conclusions, we propose, pursuant to section
251(h)(2), to adopt a rule providing for the treatment of GTA as an
incumbent LEC for purposes of section 251. We also seek comment whether
LECs situated similarly to GTA exist and, if so, whether we should
adopt the same rule with respect to such class or category of LECs.
A. Discussion
1. Section 251(h)(2)(A)
5. Under section 251(h)(2)(A), in order for the Commission to treat
GTA as an incumbent LEC, GTA must ``occup(y) a position in the market
for telephone exchange service within an area that is comparable to the
position occupied by a carrier described in (section 251(h)(1)).'' 47
U.S.C. 251(h)(2)(A). Incumbent LECs typically occupy a dominant
position in the market for telephone exchange service in their
respective operating areas, and possess economies of density,
connectivity, and scale that make efficient competitive entry quite
difficult, if not impossible, absent compliance with the obligations of
section 251(c). See Local Competition Order, 61 FR 45476 (August 29,
1996).
6. GTA seems to exercise such dominance in Guam. It apparently is
the sole provider of local exchange and exchange access services on
Guam. It therefore appears to control the bottleneck local exchange
network on Guam and possess substantial economies of density,
connectivity, and scale that, absent compliance with the obligations of
section 251(c), can impede the development of telephone exchange
service competition in Guam. Consequently, we tentatively conclude that
GTA occupies a position in the market for telephone exchange service in
Guam that is comparable to the position typically occupied by
statutorily-defined incumbent LECs. Accordingly, we also tentatively
conclude that GTA satisfies the requirement of section 251(h)(2)(A). We
invite comment on these tentative conclusions.
[[Page 29321]]
2. Section 251(h)(2)(B)
7. Under section 251(h)(2)(B), in order for the Commission to treat
GTA as an incumbent LEC, GTA must have ``substantially replaced an
incumbent local exchange carrier described in (section 251(h)(1)).'' 47
U.S.C. 251(h)(2)(B) The word ``replace'' can mean ``to take the place
of: serve as a substitute for or successor of: SUCCEED, SUPPLANT * *
*'' Webster's Third New International Dictionary of the English
Language Unabridged (1993) at 1925. Consequently, if construed
literally, section 251(h)(2)(B) would mean that GTA must have
supplanted an incumbent LEC (as defined in section 251(h)(1)) in its
service area in order to be treated as an incumbent LEC for purposes of
section 251. GTA did not supplant such an incumbent LEC, because none
existed as of the date of enactment of the 1996 Act.
8. We invite comment on whether we should construe section
251(h)(2)(B) so literally. The Supreme Court has long and consistently
recognized that the ``plain meaning'' rule of statutory construction
must give way when its application would result in an absurd outcome
contrary to the clear intent of Congress:
It is a familiar rule, that a thing may be within the letter of
the statute and yet not within the statute, because not within its
spirit, nor within the intention of its makers * * * If a literal
construction of the words be absurd, the Act must be construed to
avoid the absurdity.
Holy Trinity Church v. United States, 143 U.S. 457, 459 (1898).
See, e.g., Public Citizen v. United States Department of Justice, 491
U.S. 440, 454-455 (1989)(``Where the literal reading of a statutory
term would compel an odd result, we must search for other evidence of
congressional intent to lend the term its proper scope. The
circumstances of the enactment of a particular legislation, for
example, may persuade a court that Congress did not intend words of
common meaning to have their literal effect''); United States v. Ron
Pair Enterprises, Inc., 489 U.S. 235, 242 (1989)(where ``the literal
application of a statute will produce a result demonstrably at odd with
the intention of its drafter[,] * * * the intention of the drafters,
rather than the strict language, controls''); United Steelworkers of
America v. Weber, 443 U.S. 193, 201-04 (1979). Indeed, the Supreme
Court has further instructed that ``even when the plain meaning [of
statutory language] d[oes] not produce absurd results but merely an
unreasonable one plainly at variance with the policy of the legislation
as a whole this Court has followed that purpose, rather than the
literal words.'' United States v. American Trucking Associations, 310
U.S. 534, 543 (1967)(citations, footnote, and quotation marks omitted).
Compare MCI Telecommunications Corp. v. American Telephone and
Telegraph Co., 512 U.S. 218 (1994)(adhering to literal meaning of
tariff provision of Communications Act partly because doing otherwise
would frustrate purposes of complaint provisions of that Act).
9. The United States Courts of Appeals have followed these
precedents when necessary to avoid results that are clearly
inconsistent with Congressional intent. See, e.g., Environmental
Defense Fund v. Environmental Protection Agency, 82 F.3d 451, 468-469
(D.C. Cir.), amended on other grounds, 92 F.3d 1209 (D.C. Cir 1996)
(``Because this literal reading of the statute would actually frustrate
the congressional intent supporting it, we look to the EPA for an
interpretation of the statute more true to Congress's purpose''); In re
Nofziger, 925 F.2d 428, 434-435 (D.C. Cir. 1991)(``In statutory
interpretation it is a given that statutes must be construed reasonably
so as to avoid absurdities--manifest intent prevails over the
letter''); Quinn v. Butz, 510 F.2d 743, 753-54 (D.C. Cir. 1975)(``The
Secretary's interpretation obviously rests upon a literal reading of
the language, a technique which may well stifle true legislative
intent''); Red River Broadcasting Co. v. Federal Communications
Commission, 98 F.2d 282, 287 (D.C. Cir.), cert. denied, 305 U.S. 625
(1938)(``A well-settled rule of statutory construction enjoins courts
not to attribute to the Legislature a construction which leads to
absurd results''). So, too, has the Commission. See Application of Fox
Television Stations, Inc., Third Memorandum Opinion and Order, 10 FCC
Rcd 8452, 8471 (1995), recon. denied, 11 FCC Rcd 7773 (1996)(rejecting
literal ``count-the-shares'' methodology for determining whether
foreign ownership ceiling in 47 U.S.C. 310(b)(4) is reached), petitions
for review pending sub nom., Metropolitan Council of NAACP Branches, et
al. v. FCC, No. 95-1424 and consolidated case (D.C. Cir. filed Aug. 21,
1995).
10. In keeping with this consistent precedent, we tentatively
conclude that we should find section 251(h)(2)(B) satisfied where, as
here, the LEC at issue provides local exchange service to all or
virtually all of the subscribers in an area that did not receive
telephone exchange service from a NECA member as of the date of
enactment of the 1996 Act. In our tentative view, we must so construe
section 251(h)(2)(B) in order to avoid absurd and unreasonable results
clearly contradictory of Congressional intent. We seek comment on these
tentative conclusions.
11. These tentative conclusions are premised on Congress' clearly
expressed purpose in the 1996 Act ``to provide for a pro-competitive,
de-regulatory national policy framework designed to accelerate rapidly
private sector deployment of advanced telecommunications and
information technologies and services to all Americans by opening all
telecommunications markets to competition * * *'' Joint Explanatory
Statement at 1 (emphasis added). See generally 47 U.S.C.
160(b)(providing in the 1996 Act that ``forbearance is in the public
interest'' if it ``will promote competitive market conditions'' and
``enhance competition among providers of telecommunications
services''); 47 U.S.C. 253(authorizing Commission to preempt state or
local laws that ``may prohibit or have the effect of prohibiting the
ability of any entity to provide any interstate or intrastate
telecommunications service''); 47 U.S.C. 257(b)(describing the
``policies and purposes of this (1996) Act'' as ``favoring * * *
vigorous economic competition''). To accomplish this purpose, Congress
chose, inter alia, to impose on entities that are classified as
incumbent LECs the duties of interconnection, access to unbundled
network elements, resale of retail services, collocation, public
notification of interoperability changes, and good faith negotiation
specified in section 251(c). See 47 U.S.C. 251(c). These duties require
incumbent LECs to share with competitors some of their inherent
economic advantages--advantages that would otherwise render competitive
entry very difficult, if not impossible. For example, the existing
infrastructure of the incumbent LEC in an area enables the incumbent
LEC to serve new customers therein at a much lower incremental cost
than a facilities-based entrant that must install its own switches,
trunking, and loops to serve its customers. Because the incumbent LEC
is typically dominant in its service area, it has little economic
incentive to assist new entrants. Prior to the enactment of section
251(c), an incumbent LEC also had the ability to discourage entry and
robust competition by refusing to interconnect its network with the new
entrant's network or by insisting on supracompetitive prices or other
unreasonable conditions for terminating calls from the entrant's
customers to its customers. See Local
[[Page 29322]]
Competition Order, 61 FR 45476 (August 29, 1996).
12. An unduly literal construction of section 251(h)(2)(B) would
mean that these statutory objectives would be thwarted in Guam unless
GTA were to comply voluntarily with each of the obligations of section
251(c). Indeed, GTA appears to possess all of the advantages of
incumbency characteristic of the incumbent LECs described in section
251(h)(1), advantages that can impede the development of competitive
markets. For example, GTA apparently has substantial financial
resources, significant economies of density, connectivity, and scale,
and, most importantly, control of the bottleneck local exchange network
in Guam. Thus, the seemingly dominant market presence of GTA in Guam
appears to be precisely the type of non-competitive situation that
Congress intended section 251(c) to redress.
13. Moreover, we note that Congress left intact several provisions
of the Communications Act that led the Commission in 1992 to conclude
that ``the Communications Act was intended by Congress to apply, * * *
in every respect, to all radio and wire communications originating or
terminating on the Territory of Guam.'' Guam Jurisdictional Order, 7
FCC Rcd at 4024. First, in the 1996 Act, Congress incorporated by
reference the definitions in the 1934 Act. 47 U.S.C. 153(b). Those
definitions define the ``United States'' as including ``the several
States and Territories * * * and the possessions of the United States *
* *;'' 47 U.S.C. 153(50) (emphasis added) define ``State'' as including
``the Territories''; 47 U.S.C. 153(40) and define ``interstate
communication'' as including ``communication or transmission * * * from
any State, Territory, or possession of the United States * * * to any
other State, Territory, or possession of the United States * * * .'' 47
U.S.C. 153(22) (emphasis added). Furthermore, despite amending section
1 of the 1934 Act in other respects, Congress left unchanged that
section's command to the Commission ``to make available, so far as
possible, to all the people of the United States * * * a rapid,
efficient, Nation-wide, and world-wide wire and radio communication
service with adequate facilities at reasonable charges * * * .'' 47
U.S.C. 151 (emphasis added). See Joint Explanatory Statement at 32.
These provisions appear to make clear that Congress believed that ``the
residents of Guam are just as entitled to the benefits of competition
in telecommunications as any other Americans,'' Guam Jurisdictional
Order, 7 FCC Rcd at 4024, 4026. See Policy and Rules Concerning the
Interstate, Interexchange Marketplace, Implementation of Section 254(g)
of the Communications Act of 1934, as amended, Report and Order, 61 FR
42558 (August 16, 1996) (applying rate integration requirements of
section 254(g) to Guam because section 153(40) defines ``State'' to
include ``the Territories''). and suggest that Congress did not intend
to exclude GTA from treatment as an incumbent LEC for purposes of
section 251(c).
14. Of course, under section 251(f), our holding in the Declaratory
Ruling issued simultaneously with this NPRM that GTA is a ``rural
telephone company'' within the meaning of section 3(37) would entitle
GTA to an exemption, at least initially, from the obligations of
section 251(c), should GTA be treated as an incumbent LEC in the
future. Congress included within section 251(f), however, a procedure
for terminating such an exemption under appropriate circumstances.
Construing section 251(h)(2)(B) to foreclose the possibility of
classifying GTA as an incumbent LEC would thwart that procedure,
substituting a permanent exemption for the potentially temporary
exemption expressly set forth in section 251(f).
15. An overly literal interpretation of section 251(h)(2)(B) would
also exalt form over substance. As indicated previously, on May 12,
1997, the Commission granted NECA's petition to become a member of
NECA. GTA apparently could have filed that petition at any time after
the release of the Guam Jurisdictional Order on June 2, 1992. Thus, it
appears that only the date of initial NECA membership will distinguish
GTA from LECs that are incumbent LECs under section 251(h)(1).
16. In sum, the circumstances with respect to GTA and Guam appear
to counsel against an overly literal construction of statutory
language. See, e.g., EDF v. EPA, 82 F. 3d at 468-69. Construed so
literally, the language of section 251(h)(2)(B) would produce absurd
results ``demonstrably at odds with the intention of its drafters.''
U.S. v. Ron Pair, 489 U.S. at 242. The most immediate absurdity would
be a permanent exemption of a seemingly dominant provider of local
exchange and exchange access services--GTA--from the very requirements
that Congress designed specifically to end such dominance and foster
competition in local exchange and exchange access markets. Furthermore,
this result would not be benign; rather, it apparently would conflict
with Congress' pro-competitive objectives with respect to the twenty-
ninth largest local telephone network in the United States. We seek
comment, therefore, on whether the outcome suggested by an unduly
literal reading of the statute's language would be an ``unreasonable
one `plainly at variance with the policy of the legislation as a
whole.'' ' Quinn v. Butz, 510 F.2d at 753 (quoting U.S. v. A.T.A., 310
U.S. at 543).
17. To avoid these absurd results and to construe the statute
consistently with Congress' obvious pro-competitive purpose, we propose
to interpret section 251(h)(2)(B) to include any LEC that provides
telephone exchange service to all or virtually all of the subscribers
in its service area, where, as here, no NECA member served the area at
issue as of the date of enactment of the 1996 Act. Accordingly, we also
propose to find that GTA satisfies section 251(h)(2)(B) as construed in
this manner. We invite comment on these proposals.
18. We also seek comment whether reading section 251(h)(2) in
conjunction with other provisions of the Communications Act creates
ambiguity in Section 251(h)(2)'s meaning and intended application such
that we may reasonably exercise our discretion to construe the statute
to permit treating GTA as an incumbent LEC. Applying section 251(h)(2)
so as to exempt GTA permanently from the statutory responsibilities of
an incumbent LEC would, as described above, arguably conflict with
sections 251(c) and 251(f), among other Communications Act provisions.
Cf. Lyons v. Ohio Adult Parole Authority, 105 F.3d 1063, 1067-68 (6th
Cir. 1997) (holding that two statutory provisions were in direct
conflict, creating ``a rare but difficult form of ambiguity'').
3. Section 251(h)(2)(C)
19. Under section 251(h)(2)(C), in order for the Commission to
treat GTA as an incumbent LEC for purposes of section 251, ``such
treatment (must be) consistent with the public interest, convenience,
and necessity and the purposes of (section 251).'' 47 U.S.C.
251(h)(2)(C). As described above, Congress has declared unequivocally
that promoting competition in local exchange and exchange access
markets serves the public interest, convenience, and necessity.
Treating GTA as an incumbent LEC would promote competition in the local
exchange and exchange access markets in Guam, because such treatment
would require GTA to comply with the pro-competitive obligations of
section 251(c), absent an exemption,
[[Page 29323]]
suspension, or modification under section 251(f). Moreover, because GTA
appears to be the sole provider of local exchange and exchange access
services in Guam, we tentatively conclude that GTA has market power,
economies of density, connectivity, and scale, and control of the local
network comparable to that possessed by entities that are incumbent
LECs under section 251(h)(1). Consequently, treating GTA as an
incumbent LEC may well be a prerequisite for the development of
competition in the local exchange and exchange access markets in Guam.
Thus, we tentatively conclude that treating GTA as an incumbent LEC for
purposes of section 251 would be consistent with the public interest,
convenience, and necessity.
20. For similar reasons, we also tentatively conclude that treating
GTA as an incumbent LEC would be consistent with the purposes of
section 251. Section 251's primary purpose is to foster competition
that otherwise would not likely develop in local exchange and exchange
access markets. It is possible that failing to treat GTA as an
incumbent LEC would stifle competition in Guam.
21. Having tentatively concluded that GTA has market power,
economies of density, connectivity, and scale, and control of the local
network, and that treating GTA as an incumbent LEC would be consistent
with the public interest, convenience, and necessity and the purposes
of section 251, we further conclude tentatively that the circumstances
here satisfy the requirements of section 251(h)(2)(C). We invite
comment regarding these tentative conclusions.
4. Proposal to Treat GTA--and Possibly Others--as an Incumbent LEC
22. For all of the reasons explained above, we tentatively conclude
that the relevant facts and circumstances meet the requirements of
section 251(h)(2) for treating GTA as an incumbent LEC for purposes of
section 251. Accordingly, we propose to provide for the treatment of
GTA as an incumbent LEC for purposes of section 251. We seek comment
regarding this tentative conclusion and proposal. We also seek comment
whether LECs situated similarly to GTA exist and, if so, whether we
should adopt the same rule with respect to such class or category of
LECs.
B. Procedural Matters
1. Ex Parte Presentations
23. With respect to the rulemaking proposal in Part IV, supra, to
treat GTA as an incumbent local exchange carrier pursuant to section
251(h)(2), this is a non-restricted notice-and-comment rulemaking
proceeding. Ex parte presentations are permitted, except during the
Sunshine Agenda period, provided that they are disclosed as required by
the Commission's rules. See generally 47 CFR 1.1201, 1.1203, and
1.1206.
2. Initial Regulatory Flexibility Analysis
24. Section 603 of the Regulatory Flexibility Act, as amended, 5
U.S.C. 603, requires an initial regulatory flexibility analysis in NPRM
and comment rulemaking proceedings, unless we certify that ``the rule
will not, if promulgated, have a significant economic impact on a
substantial number of small entities.'' 5 U.S.C. section 605(b). Our
proposal in Part IV, supra, to treat GTA as an incumbent local exchange
carrier pursuant to section 251(h)(2) will affect only GTA and the
limited number of entities that seek to interconnect with GTA's network
or resell GTA's services. Even if all of these entities can be
classified as small entities, we do not believe that they constitute a
``significant number of small entities'' for purposes of the Regulatory
Flexibility Act. Therefore, we certify that the proposed rule will not,
if promulgated, have a significant economic impact on a substantial
number of small entities. The Secretary shall send a copy of this
Notice of Proposed Rulemaking, including this certification and
statement, to the Chief Counsel for Advocacy of the Small Business
Administration. See 5 U.S.C. 605(b). A copy of this certification also
will be published in the Federal Register.
3. Comment Filing Procedures
25. Pursuant to applicable procedures set forth in sections 1.415
and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested
parties may file comments on or before July 7, 1997 and reply comments
on or before July 28, 1997. To file formally in this proceeding, you
must file an original and six copies of all comments, reply comments,
and supporting comments. If you would like each Commissioner to receive
a personal copy of your comments, you must file an original and eleven
copies. Comments and reply comments should be sent to Office of the
Secretary, Federal Communications Commission, 1919 M Street, NW, Room
222, Washington, DC 20554. Parties should also file copies of any
documents filed in this docket with Janice Myles of the Common Carrier
Bureau, 1919 M Street, NW, Room 544, Washington, DC 20554, and with the
Commission's copy contractor, International Transcription Services,
Inc., 2100 M Street, NW, Suite 140, Washington, DC 20037. Comments and
reply comments will be available for public inspection during regular
business hours in the FCC Reference Center, 1919 M Street, NW, Room
239, Washington, DC 20554.
II. Ordering Clauses
26. It is ordered That, pursuant to sections 1, 2, 4, 251, and
303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151,
152, 154, 251, and 303(r), the Notice of Proposed Rulemaking contained
herein, is hereby adopted.
27. It is further ordered That the Secretary shall send a copy of
this Notice of Proposed Rulemaking, including the regulatory
flexibility certification, to the Chief Counsel for Advocacy of the
Small Business Administration, in accordance with paragraph 603(a) of
the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. (1981).
Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 97-14119 Filed 5-29-97; 8:45 am]
BILLING CODE 6712-01-U