[Federal Register Volume 62, Number 104 (Friday, May 30, 1997)]
[Rules and Regulations]
[Pages 29290-29294]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-14156]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 906

[SPATS No. CO-034-FOR]


Colorado Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.


[[Page 29291]]


ACTION: Final rule; approval of amendment.

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SUMMARY: Office of Surface Mining Reclamation and Enforcement (OSM) is 
approving a proposed amendment to the Colorado regulatory program 
(hereinafter referred to as the ``Colorado program'') under the Surface 
Mining Control and Reclamation Act of 1977 (SMCRA). Colorado proposed, 
in addition to several nonsubstantive editorial revisions, revisions to 
Colorado's rules pertaining to the applicability of Colorado's rules 
and language identifying where referenced material may be viewed; 
definitions; the requirement to repeal any State rule required by a 
Federal law or rule which is repealed; the operations plan permit 
application requirements; experimental practices; the right of 
successive permit renewal; transfer, assignment or sale of permit 
rights; terms and conditions of an irrevocable letter of credit; 
performance standards for sedimentation ponds; embankment design for 
sedimentation ponds; sign and markers for temporary and permanent 
cessation of operations; availability of records; and a permittee's 
failure to abate a violation. The amendment revised the State program 
to clarify ambiguities and improve operational efficiency.

EFFECTIVE DATE: May 30, 1997.

FOR FURTHER INFORMATION CONTACT:
James F. Fulton, Telelphone: (303) 844-1424.

SUPPLEMENTARY INFORMATION:

I. Background on the Colorado Program

    On December 15, 1980, the Secretary of the Interior conditionally 
approved the Colorado program. General background information on the 
Colorado program, including the Secretary's findings, the disposition 
of comments, and the conditions of approval of the Colorado program can 
be found in the December 15, 1980, Federal Register (45 FR 82173). 
Subsequent actions concerning Colorado's program and program amendments 
can be found at CFR 906.15, 906.16, and 906.30.

II. Proposed Amendment

    By letters dated February 25, 1997, Colorado submitted a proposed 
amendment (administrative record No. CO-683) to its program pursuant to 
SMCRA (30 U.S.C. 1201 et seq.). Colorado submitted the proposed 
amendment at its own initiative.
    OSM announced receipt of the proposed amendment in the March 13, 
1997, Federal Register (62 FR 11805), provided an opportunity for a 
public hearing or meeting on its substantive adequacy, and invited 
public comment on its adequacy (administrative record No. CO-683-2). 
Because no one requested a public hearing or meeting, none was held.
    The public comment period ended on April 14, 1997.

III. Director's Findings

    As discussed below, the Director, in accordance with SMCRA and 30 
CFR 732.15 and 732.17, find that the proposed program amendment 
submitted by Colorado on February 25, 1997, is no less effective than 
the Federal regulations in implementing the requirements of SMCRA. 
Accordingly, the Director approves the proposed amendment.

1. Nonsubstantive Revisions to Colorado's Rules

    Colorado proposed revisions to the following previously-approved 
rules that are nonsubstantive in nature and consist of minor editorial 
changes (corresponding Federal regulation provisions are listed in 
parentheses):
    Rule 1.01(9) (No Federal counterpart), concerning materials 
incorporated by reference in Colorado's rules, to identify in this 
rule, which is applicable to all Colorado rules (rather than in each 
rule citing referenced material) the location where material 
incorporated by reference may be examined or obtained;
    Rule 1.04(4) (No Federal counterpart), concerning the definition of 
``[a]ctive mining area,'' to remove a reference to a rule that is not 
applicable;
    Rule 1.04(12) (30 CFR 701.5), concerning the definition of 
``[a]pplication,'' to remove an extraneous ``of;''
    Rule 1.04(21) (30 CFR 700.5), concerning the definition of 
``[c]oal,'' to remove the language now incorporated in Rule 1.01(9) 
regarding where material incorporated by reference may be examined or 
obtained;
    Rule 1.04(41) (30 CFR 706.3), concerning the definition of 
``employee,'' to identify the section of Colorado's rules to which the 
definition is applicable;
    Rule 1.04(149) (30 CFR 761.5), concerning the definition of 
``[v]alid existing rights,'' to recodify existing paragraphs within the 
definition;
    Rule 2.05.3(3)(b)(i)(D) (30 CFR 780.12(a)(4)), concerning the 
description of existing structures in the operations plan for a permit 
application, to remove a reference to requirements that do not exist;
    Rule 2.05.3(3)(c)(ii) (30 CFR 780.37(c) and 784.24(c)), concerning 
the description of mine facilities (road, conveyor, or rail system) in 
the operations plan for a permit application, to correct a referenced 
rule citation;
    Rule 2.06.6(2)(a)(i) (30 CFR 785.17(b)(3)), concerning special 
requirements for permit applications involving prime farmlands, to 
remove the language now incorporated in Rule 1.01(9) regarding where 
material incorporated by reference may be examined or obtained;
    Rule 3.05.5(1) (30 CFR 800.40(c)), concerning criteria for the 
release of performance bonds, to remove an extraneous ``the;''
    Rule 4.03.1(1)(e) (30 CFR 816.151(b) and 817.151(b)), concerning 
general performance standards for haul roads, to remove a portion of 
the subparagraph that was duplicated;
    Rule 4.05.6(6)(a) (30 CFR 816.46(c)(2)), concerning the storm event 
used to design sedimentation ponds, to repromulgate previously-approved 
language that was inadvertently removed;
    Rule 4.05.6(11)(h) (30 CFR 816.49(a) (3) and (4)), concerning 
embankment design for sedimentation ponds, to correct a referenced rule 
citation;
    Rules 4.07.3(3)(f) and 4.07.3(3)(g) (30 CFR 816.15), concerning 
permanent sealing of drill holes, to correct typographical errors; and
    Rule 5.03.3(5) (30 CFR 843.13(d)), concerning a permittee's failure 
to abate a violation, to correct a referenced rule citation.
    Because the proposed revisions to these previously-approved 
Colorado rules are nonsubstantive in nature, the Director finds that 
they are no less effective than the Federal regulations. The Director 
approves these proposed rules.

2. Rule 1.13, Repeal of Colorado Rules Which are More Stringent than 
Required to be as Effective as SMCRA and the Federal Regulations

    Colorado's Rule 1.13 requires that any Colorado rule which is 
required by a Federal law, rule, or regulation shall become repealed 
and shall not be enforced when said Federal law is repealed or said 
Federal rule or regulation is deleted or withdrawn. Colorado proposed 
to revise Rule 1.13 to state that the repeal of any such rule shall not 
become effective to ninety, rather than sixty, days after repeal of the 
Federal regulation during which time the repeal may be subject to a 
rulemaking hearing. Colorado proposed this revision of Rule 1.13 in 
order that the rule would be consistent with its authorizing statutory 
provision at C.R.S. 34-33-108 (1) and (2), which OSM

[[Page 29292]]

approved as no less stringent than section 503 of SMCRA (see finding 
No. 4, 61 FR 59332, 59333, November 22, 1996).
    The Federal regulations at 30 CFR 730.5 define ``consistent with 
and in accordance with'' to mean, with regard to SMCRA, that the State 
laws and regulations are no less stringent than, meet the minimum 
requirements of, and include all applicable provisions, and, with 
regard to the Federal regulations, that the State laws and regulations 
are no less effective than the Secretary's regulations in meeting the 
requirements of SMCRA.
    There is no Federal counterpart regarding automatic appeal of State 
rules if the Federal rule is repealed; however, there is nothing in 
Colorado's proposed Rule 1.13 which causes the rule to be inconsistent 
with the Federal regulations at 30 CFR 730.5. Allowing an extra thirty 
days prior to repeal, during which any person may request a rulemaking 
hearing, provides for greater public participation than did the 
existing rule.
    Therefore, the Director finds that proposed Rule 1.13is consistent 
with and no less effective than the Federal regulations and approves 
the proposed revision.

3. Rule 2.06.2(4), Approval of Experimental Practices

    Colorado proposed to revise Rule 2.06.2(4) to note that the 
Director of OSM is the authorized representative of the Secretary of 
the Department of the Interior for all experimental practices. 
Experimental practices must be approved by both the ``Board'' and the 
``Director.'' The ``Board'' is the Colorado Mined Land Reclamation 
Board (defined at Rule 1.04(18)) and the ``Director'' is the Director 
of OSM (defined at Rule 1.04(35).
    The counterpart Federal regulation at 30 CFR 785.13(d) requires the 
approval of OSM for all proposed experimental practices.
    Colorado proposed to revise Rule 2.06.2(4) to ensure that it would 
be consistent with the authorizing statute (C.R.S. 34-33-134), which 
requires approval by the Secretary of the U.S. Department of Interior. 
Colorado's proposed rule clarifies that the Director of OSM is the 
authorized representative for the Secretary.
    Because Colorado has only clarified approval authority in Rule 
2.06.2(4) and has not substantively revised the requirements of the 
rule, the Director finds that Rule 2.06.2(4) remains no less effective 
than the counterpart Federal regulation at 30 CFR 785.13(d) and 
approves it.

4. Rule 2.08.5(2)(b)(ii), Advertisement of Public Notice for 
Applications Concerning Permit Renewal

    Colorado proposed to revise Rule 2.08.5(2)(b)(ii) to require that 
applicants for permit renewals submit a copy of the newspaper notice, 
which must be published in accordance with Colorado's Rule 2.07.3(2), 
at the time of initial application and proof of publication within four 
weeks of the last date of publication.
    The Federal regulation at 30 CFR 774.15(b)(2)(iv) requires the 
applicant for permit renewal to submit a copy of the proposed newspaper 
notice and proof of publication of same.
    Proposed Rule 2.08.5(2)(b)(ii) clarifies the timing of submittal of 
proof of publication of the required newspaper notice for a permit 
renewal. The Director finds that proposed Rule 2.08.5(2)(b)(ii) is 
consistent with and no less effective than the requirements of 30 CFR 
774.15(b)(2)(iv) and approves it.

5. Rule 3.02(2)(d)(i); Letters of Credit That Are Acceptable as 
Performance Bonds

    Colorado's existing Rule 3.02.4(2)(d)(i) requires that irrevocable 
letters of credit may only be issued by a bank organized or authorized 
to do business in the U.S. and located in the state of Colorado, except 
that the bank need not be located in the state of Colorado if the 
letter of credit can be exercised at an affiliate or subsidiary located 
in the State of Colorado. Colorado proposed to revise Rule 
3.02.4(2)(d)(i) to also allow for letter of credit performance bonds 
issued by a bank located in the Untied States but outside of the State 
of Colorado, if it (1) is confirmed by a bank located in the State of 
Colorado or (2) at the Board's discretion, is determined to be an 
acceptable letter of credit.
    The counterpart Federal regulation at 30 CFR 800.21(b)(1) only 
require that the bank be authorized to do business in the United 
States. Colorado's proposed Rule 3.02.4(2)(d)(i) provides requirements 
for letters of credit as forms of collateral bond that are in addition 
to those provided in the Federal program. These requirements afford a 
measure of protection beyond that afford by the Federal regulations and 
is not inconsistent with the Federal regulations.
    Therefore, the Director finds that proposed Rule 3.02.4(2)(d)(i) is 
no less effective than the Federal regulation at 30 CFR 800.21(1)(e), 
and approves it.

6. Rules 4.02.2(2). 4.30.1(3), and 4.30.2(3), Information Required To 
Be on Mine Identification Signs Which are Posted at the Entrance to 
Mine Sites

    Colorado proposed to revise Rules 4.30.1 and 4.30.2, concerning 
cessation of operations, by adding a paragraph (3) to each rule to 
require that, as soon as it is known that a temporary cessation will 
last more than 30 days or when a mine is in permanent cessation, the 
name, address and telephone number of the Division be included on mine 
identification signs which are posted at the entrance to mine sites. 
Colorado also proposed to remove the requirement for this information 
on all signs and markers for all surface coal mining operations from 
Rules 4.02.2(2)(a) through (c), which were previously approved by OSM 
never actually promulgated by Colorado.
    The Federal regulation at 30 CFR 8.16.11(c)(2) requires that 
identification signs be displayed at each point of access to the permit 
area from public roads and that such signs shall show the name, 
business address, and telephone number of the person who conducts the 
surface mining activities and the identification number of the current 
permit authorizing surface mining activities. Neither this rule nor the 
Federal regulations concerning cessation of operations at 30 CFR 
816.131 and 816.132 include the requirement for the additional 
information on the identification signs.
    Colorado's proposed inclusion of the requirement at Rules 4.30.1(3) 
and 4.30.2(3), that the name, address, and telephone number of the 
office where the mining and reclamation permit is filed, provides for 
information on the mine identification sign that will facilitate the 
public's ability to participate in the development, revision, and 
enforcement of regulations, standards, reclamation plans, or programs 
established by Colorado and is, therefore, not inconsistent with the 
Federal regulations at 30 CFR 816.11(c)(2), 816.131, and 816.132. 
Because Colorado's Rule 4.02.2(2) requires the same information on all 
signs and markers as does the Federal regulation at 30 CFR 
816.11(c)(2), Colorado's proposed deletion of the additional 
requirement for the permit number and where information regarding the 
permitted operation may be viewed is not inconsistent with the 
requirements of the Federal regulations at 30 CFR 816.11(c)(2).
    Based on the above discussion, the Director finds that proposed 
Rules 4.02.2(2), 4.30.1(3), and 4.30.2(3) are no

[[Page 29293]]

less effective than the Federal regulations at 30 CFR 816.11(c)(2), 
816.131, and 816.132. The Director approves Rules 4.02.2(2), 4.30.1(3), 
and 4.30.2(3).

7. Rule 5.02.4(1) and (2), Maintenance of Records of Surface Coal 
Mining Operations

    Colorado proposes to revise (1) Rule 5.02.4(1) by deleting the 
general requirement that records be retained for at least five years 
after the period during which the operations is covered by any portion 
of reclamation bond and adding the requirement that the permittee 
maintain records for public review only until the Division has 
terminated jurisdiction at a reclaimed coal mining and reclamation 
operation, and (2) Rule 5.02.4(2) by adding the requirement that the 
Division maintain records of surface coal mining operations for five 
years after the operation was last active or covered by any portion of 
reclamation bond and provide for public review of such information.
    The Federal regulation at 30 CFR 840.14(b) requires that, with the 
exception of certain investigative and enforcement materials, 
information designated as confidential according to 30 CFR 772.15 and 
773.13(d), and as otherwise provided by Federal law; copies of all 
records, reports, inspection materials, or information obtained by the 
regulatory authority shall be made immediately available to the public 
in the area of mining until at least 5 years after expiration of the 
period during which the operation is active or is covered by any 
portion of a reclamation bond so that they are conveniently available 
to residents of that area (emphasis added). The Federal regulation at 
30 CFR 840.14(c) requires that the State regulatory authority ensure 
compliance with paragraph (b) by either: (1) making copies of all 
records, reports, inspection materials, and other subject information 
available for public inspection at a Federal, State, or local 
government office in the county where the mining is occurring or 
proposed to occur; or (2) at the regulatory authority's option and 
expense, providing copies of subject information promptly by mail at 
the request of any resident of the area where the mining is occurring 
or is proposed to occur, provided, that the regulatory authority shall 
maintain for public inspection, at a Federal, State, or local 
government office in the county where the mining is occurring or 
proposed to occur, a description of the information available for 
mailing and the procedure for obtaining such information.
    The Federal regulation at 30 CFR 700.11(d)(1) provides that the 
regulatory authority may terminate its jurisdiction at a surface coal 
mining and reclamation operation after release of all performance 
bonds. However, the requirement to maintain, for 5 years after all 
performance bonds have been released, public records relevant to the 
surface coal mining and reclamation operation is an obligation of the 
regulatory authority.
    Colorado's proposed revisions at Rules 5.02.4 (1) and (2) clarify 
that the permittee is obligated to maintain records only until Colorado 
terminates jurisdiction over the operation and that Colorado will both 
maintain records relevant to the surface coal mining and reclamation 
operation for at least 5 years after release of all performance bonds 
and provide for public review of such information. Therefore, the 
Director finds that proposed Rules 5.02.4 (1) and (2) are consistent 
with and no less effective than the Federal regulations at 30 CFR 
840.14 (b) and (c), and approves them.

IV. Summary and Disposition of Comments

    Following are summaries of all substantive written comments on the 
proposed amendment that were received by OSM, and OSM's responses to 
them.

1. Public Comments

    OSM invited public comments on the proposed amendment.
    The Colorado Mining Association (CMA) responded on March 18, 1997, 
that the Colorado Division of Minerals and Geology has kept the public 
continuously informed of the changes under consideration and that CMA 
has no objection to and supports many of the proposals currently before 
OSM (administrative record No. CO-680-3).

2. Federal Agency Comments

    Pursuant to 732.17(h)(11)(i), OSM solicited comments on the 
proposed amendment from various Federal agencies with an actual or 
potential interest in the Colorado program (administrative record No. 
CO-683-1).
    The U.S. National Resources Conservation Service (NRCS) responded 
on April 1, 1997, that the title of its agency was changed in 1995 from 
the Soil Conservation Service (SCS) to the NRCS. NRCS noted that in 
Colorado's amendment several references in one rule are made to its old 
title, the SCS, and requested that Colorado revise its program to refer 
to NRCS rather than the SCS (administrative record No. CO-680-4). 
Because Colorado references the SCS in several places throughout its 
approved program, OSM will not require, at this time, that Colorado 
make this revision in the one rule where the reference to SCS is made 
in this amendment. However, in response to this comment, OSM will, in a 
near-future 30 CFR Part 732 letter to Colorado, request that Colorado 
revise all references to the SCS to refer instead to the NRCS.

3. Environmental Protection Agency (EPA) Concurrence and Comments

    Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to solicit 
the written concurrence of EPA with respect to those provisions of the 
proposed program amendment that relate to air or water quality 
standards promulgated under the authority of the Clean Water Act (33 
U.S.C. 1251 et seq.).
    None of the revisions that Colorado proposed to make in its 
amendment pertain to air or water quality standards.
    Therefore, OSM did not request EPA's concurrence.
    Pursuant to 732.17(h)(11)(i), OSM solicited comments on the 
proposed amendment from EPA (administrative record No. CO-683-1). It 
did not respond to OSM's request.

4. State Historic Preservation Officer (SHPO) and the Advisory Council 
on Historic Preservation (ACHP)

    Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the 
proposed amendment from the SHPO and ACHP (administrative record No. 
CO-683-1). Neither SHPO nor ACHP responded to OSM's request.

V. Director's Decision

    Based on the above findings the Director approves Colorado's 
proposed amendment as submitted on February 25, 1997.
    The Director approves, as discussed in:
    Finding No. 1, Rules 1.01(9); 1.04 (4), (12), (21), (41), and 
(149), 2.05.3(3)(b)(i)(D) and (3)(c)(ii); 2.06.6(2)(a)(i); 3.05.5(1); 
4.03.1(1)(e); 4.05.6 (6)(a) and (11)(h); 4.07.3 (3)(f) and (3)(g), and 
5.03.3(5), concerning nonsubstantive revisions;
    Finding No. 2, Rule 1.13, concerning repeal of Colorado rules which 
are more stringent than required to be as effective as SMCRA and the 
Federal regulations;
    Finding No. 3, Rule 2.06.2(4), concerning approval of experimental 
practices;
    Finding No. 4, Rule 2.08.5(2)(b)(ii), concerning advertisement of 
public notice for applications concerning permit renewal;

[[Page 29294]]

    Finding No. 5, Rule 3.02.4(2)(d)(i), letters of credit that are 
acceptable as performance bonds;
    Finding No. 6, Rules 4.02.2(2), 4.30.1(3), and 4.30.2(3), 
concerning information required to be on mine identification signs 
which are posted at the entrance to mine sites, and;
    Finding No. 7, Rule 5.02.4 (1) and (2), maintenance of records of 
surface coal mining operations.
    The Federal regulations at 30 CFR Part 906, codifying decisions 
concerning the Colorado program, are being amended to implement this 
decision. This final rule is being made effective immediately to 
expedite the State program amendment process and to encourage States to 
bring their programs into conformity with the Federal standards without 
undue delay. Consistency of State and Federal standards is required by 
SMCRA.

VI. Procedural Determinations

1. Executive Order 12866

    This rule is exempted from review by the Office of Management and 
Budget (OMB) under Executive Order 12866 (Regulatory Planning and 
Review).

2. Executive Order 12988

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 (Civil Justice Reform) and has 
determined that this rule meets the applicable standards of subsections 
(a) and (b) of that section. However, these standards are not 
applicable to the actual language of State regulatory programs and 
program amendments since each such program is drafted and promulgated 
by a specific State, not by OSM. Under sections 503 and 505 of SMCRA 
(30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 
732.15, and 732.17(h)(10), decisions on proposed State regulatory 
programs and program amendments submitted by the States must be based 
solely on a determination of whether the submittal is consistent with 
SMCRA and its implementing Federal regulations and whether the other 
requirements of 30 CFR Parts 730, 731, and 732 have been met.

3. National Environmental Policy Act

    No environmental impact statement is required for this rule since 
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency 
decisions on proposed State regulatory program provisions do not 
constitute major Federal actions within the meaning of section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 
4332(2)(C)).

4. Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 
3507 et seq.).

5. Regulatory Flexibility Act

    The Department of the Interior has determined that this rule will 
not have a significant economic impact on a substantial number of small 
entities under the Regulatory flexibility Act (5 U.S.C. 601 et seq.). 
The State submittal that is the subject of this rule is based upon 
counterpart Federal regulations for which an economic analysis was 
prepared and certification made that such regulations would not have a 
significant economic effect upon a substantial number of small 
entities. Accordingly, this rule will ensure that existing requirements 
previously promulgated by OSM will be implemented by the State. In 
making the determination as to whether this rule would have a 
significant economic impact, the Department relied upon the data and 
assumptions for the counterpart Federal regulations.

6. Unfunded Mandates

    This rule will not impose a cost of $100 million or more in any 
given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 906

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: April 29, 1997.
Richard J. Seibel,
Regional Director, Western Regional Coordinating Center.

    For the reasons set out in the preamble, title 30, chapter VII, 
subchapter T of the Code of Federal Regulations is amended as set forth 
below:

PART 906--COLORADO

    1. The authority citation for part 906 continues to read as 
follows:

    Authority: 30 U.S.C. 1201 et seq.

    2. Section 906.15 is amended in the table by adding a new entry in 
chronological order by ``Date of Final Publication'' to read as 
follows:


Sec. 906.15   Approval of Colorado regulatory program amendments.

* * * * *

------------------------------------------------------------------------
   Original amendment           Date of final                           
     submission date             publication        Citation/description
------------------------------------------------------------------------
*                  *                  *                  *              
         *                  *                  *                        
February 25, 1997.......  May 30, 1997............  2 CCR 407-2, Rules  
                                                     1.01(9); 1.04 (4), 
                                                     (12), (21), (41),  
                                                     (149); 1.13;       
                                                     2.05.3(3)(b)(i)(D),
                                                     (3)(c)(ii);        
                                                     2.06.2(4);         
                                                     2.06.6(2)(a)(i);   
                                                     2.08.5(2)(b)(ii);  
                                                     3.02.4(2)(d)(i);   
                                                     3.05.5(1);         
                                                     4.02.2(2);         
                                                     4.03.1(1)(e);      
                                                     4.05.6(6)(a),      
                                                     (11)(h); 4.07.3(3) 
                                                     (f), (g);          
                                                     4.30.1(3), .2(3);  
                                                     5.02.4 (1), (2);   
                                                     5.03.3(5)          
------------------------------------------------------------------------

[FR Doc. 97-14156 Filed 5-29-97; 8:45 am]
BILLING CODE 4310-05-M