[Federal Register Volume 69, Number 126 (Thursday, July 1, 2004)]
[Rules and Regulations]
[Pages 39864-39868]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-14480]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 1, 27, 90, and 95

[WT Docket No. 02-8; FCC 03-204]


License Services in the 216-220 MHz, 1390-1395 MHz, 1427-1429 
MHz, 1429-1432 MHz, 1432-1435 MHz, 1670-1675 MHz, and 2385-2390 MHz 
Government Transfer Bands

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document the Commission addresses three petitions for 
reconsideration and two petitions for clarification of the Report and 
Order in this proceeding to govern the licensing of 27 MHz of 
electromagnetic spectrum in the 216-220 MHz, 1390-1395 MHz, 1427-1429 
MHz, 1429-1432 MHz, 1670-1675 MHz, and 2385-2390 MHz bands, which were 
reallocated for non-Government use. The Commission also on its own 
motion corrects certain rules adopted in the Report and Order, and 
adopts further rule amendments codifying decisions made in the Report 
and Order.

DATES: Effective August 30, 2004.

FOR FURTHER INFORMATION CONTACT:
    Technical information: Brian Marenco, [email protected], Public 
Safety and Critical Infrastructure Division, Wireless 
Telecommunications Bureau (202) 418-0680, or TTY (202) 418-7233.
    Legal information: Scot Stone, [email protected], Public Safety 
and Critical Infrastructure Division, Wireless Telecommunications 
Bureau (202) 418-0680, or TTY (202) 418-7233.

[[Page 39865]]


SUPPLEMENTARY INFORMATION: This is a summary of the Federal 
Communications Commission's Order, FCC 03-204, adopted on August 7, 
2003, and released on August 19, 2003. The full text of this document 
is available for inspection and copying during normal business hours in 
the FCC Reference Center, 445 12th Street, SW., Washington, DC 20554. 
The complete text may be purchased from the Commission's copy 
contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room 
CY-B402, Washington, DC 20554. The full text may also be downloaded at: 
www.fcc.gov. Alternative formats are available to persons with 
disabilities by contacting Brian Millin at (202) 418-7426 or TTY (202) 
418-7365 or at [email protected].
    1. The Order (a) declines to require that each 1392-1395 MHz band 
station register with the American Society of Health Care Engineering 
of the American Hospital Association (ASHE) upon initiating operations, 
as such a requirement would be contrary to the regulatory flexibility 
that is inherent with a geographic area license; (b) instructs ASHE and 
the Land Mobile Communications Council to present a joint coordination 
plan for the 1427-1432 MHz band, which is used by both Wireless Medical 
Telemetry Service (WMTS) and site-based non-medical telemetry, within 
one year of the release date of the Order (c) declines to impose 
coordination procedures on the 1432-1435 MHz band licensees that 
operate within a hundred miles of 1435-1525 MHz flight test sites; and 
(d) modifies the channel plans that were adopted in the Report and 
Order for the 217-220 MHz and 1427-1432 MHz bands so that licensees can 
employ 25 kHz or 50 kHz bandwidths with center frequencies that require 
no more than three decimal places of accuracy (e.g., 217.025 MHz), 
rather than five to six decimal places of accuracy (e.g., 217.015625 
MHz).

I. Procedural Matters

A. Paperwork Reduction Act

    3. The Order does not contain any new or modified information 
collection.

B. Supplemental Regulatory Flexibility Analysis

    4. As required by the Regulatory Flexibility Act (``RFA''), a Final 
Regulatory Flexibility Analysis (FRFA) was incorporated in the Report 
and Order, 67 FR 41847. In view of the fact that we have adopted 
further rule amendments in this Order, we have included this 
Supplemental Final Regulatory Flexibility Analysis (SFRFA). This 
present SFRFA conforms to the RFA.
Need for, and Objectives of the Order
    5. In this Order, on our own motion, we correct certain rules that 
were adopted in the Report and Order, and adopt further rule amendments 
that the Commission inadvertently failed to adopt in the Report and 
Order. In the Report and Order, the Commission adopted rules for the 
licensing and operation of fixed and mobile services in the 216-220 
MHz, 1390-1395 MHz, 1427-1429.5 MHz, 1429.5-1432 MHz, 1432-1435 MHz, 
1670-1675 MHz and 2385-2390 MHz bands pursuant to the provisions of the 
Communications Act of 1934, as amended, the Omnibus Budget 
Reconciliation Act of 1993 (OBRA-93), and the Balanced Budget Act of 
1997 (BBA-97). The transfer of these bands to non-Government use should 
enable the development of new technologies and services, provide 
additional spectrum relief for congested private land mobile 
frequencies, and fulfill our obligations as mandated by Congress to 
assign this spectrum for non-Government use.
    6. The Report and Order established competitive bidding rules and 
small business definitions for the unpaired 1390-1392 MHz, 1670-1675 
MHz, and 2385-2390 MHz bands, and the paired 1392-1395 MHz and 1432-
1435 MHz bands similar to those applied to the WCS 2.3 GHz band and the 
700 MHz Guard Bands. Consistent with the Commission's responsibility 
under section 309(j) to promote opportunities for, and disseminate 
licenses to, a wide variety of applicants, the Report and Order adopted 
small business size standards and bidding preferences for qualifying 
bidders that will provide such bidders with opportunities to compete 
successfully against large, well-financed entities. Specifically, with 
respect to the aforementioned bands, we define a ``small business'' as 
any entity with average annual gross revenues for the three preceding 
years not exceeding $40 million, and a ``very small business'' as any 
entity with average annual gross revenues for the three preceding years 
not exceeding $15 million. Correspondingly, the Commission adopted a 
bidding credit of 15 percent for ``small businesses'' and a bidding 
credit of 25 percent for ``very small businesses.'' This bidding credit 
structure is consistent with the Commission's standard schedule of 
bidding credits, which may be found at Sec.  1.2110(f)(2) of the 
Commission's rules.
Summary of Significant Issues Raised by Public Comments in Response to 
the FRFA
    7. We received no comments in response to the FRFA in the Report 
and Order. We continue to believe that the policies and rules adopted 
in this Report and Order will better enable small entities to compete 
for licenses in the unpaired 1390-1392 MHz, 1670-1675 MHz, and 2385-
2390 MHz bands, and the paired 1392-1395 MHz and 1432-1435 MHz bands.
Description and Estimate of the Number of Small Entities to Which the 
Rules Will Apply
    8. The RFA directs agencies to provide a description of, and, where 
feasible, an estimate of the number of small entities that may be 
affected by the proposed rules, if adopted. The RFA defines the term 
``small entity'' as having the same meaning as the terms ``small 
business,'' ``small organization,'' and ``small business concern'' 
under section 3 of the Small Business Act. A small business concern is 
one which: (i) Is independently owned and operated; (ii) is not 
dominant in its field of operation; and (iii) satisfies any additional 
criteria established by the SBA. Nationwide, as of 1992, there were 
approximately 275,801 small organizations. ``Small governmental 
jurisdiction'' generally means ``governments of cities, counties, 
towns, townships, villages, school districts, or special districts, 
with a population of less than 50,000.'' As of 1992, there were 
approximately 85,006 such jurisdictions in the United States. This 
number includes 38,978 counties, cities, and towns; of these, 37,566, 
or ninety-six percent, have populations of fewer than 50,000. The 
Census Bureau estimates that this ratio is approximately accurate for 
all governmental entities. Thus, of the 85,006 governmental entities, 
we estimate that 81,600 (ninety-one percent) are small entities.
    9. Wireless Service Providers. The SBA has developed a definition 
for small business within the two separate categories of cellular and 
other wireless telecommunications or paging. Under that SBA definition, 
such a business is small if it has 1,500 or fewer employees. According 
to the Commission's Telephone Trends Report data, 1,495 companies 
reported that they were engaged in the provision of wireless service. 
Of these 1,495 companies, 989 reported that they have 1,500 or fewer 
employees and 506 reported that, alone or in combination with 
affiliates, they have more than 1,500 employees. We do

[[Page 39866]]

not have data specifying the number of these carriers that are not 
independently owned and operated, and thus are unable at this time to 
estimate with greater precision the number of wireless service 
providers that would qualify as small business concerns under the SBA's 
definition. Consequently, we estimate that there are 989 or fewer small 
wireless service providers that may be affected by the rules adopted in 
this proceeding. Below, we further describe and estimate the number of 
small entity licensees and regulatees that may be affected by the rules 
adopted in this proceeding. Except as noted, these services are 
associated with the above SBA small business size standard.
    10. With respect to the 1390-1392 MHz band, the Commission will 
award a single 2 MHz license in each of fifty-two Major Economic Areas 
(MEAs). For the 1670-1675 MHz, and 2385-2390 MHz bands, the Commission 
will award a single nationwide license in each band. For the paired 
1392-1395 MHz and 1432-1435 MHz bands, the Commission will award a pair 
of 1.5 MHz licenses in each of six Economic Area Groupings (EAGs). For 
the 1432-1435 MHz band, the Commission will award licenses on a site 
by-site basis. The Commission does not yet know how many applicants or 
licensees in any of these bands will be small entities.
    11. Existing services in other bands include entities that might be 
affected by the rules, either as existing licensees or potential 
applicants or licensees. Incumbent services in the 1427-1429.5 MHz and 
1429.5-1432 MHz bands include wireless medical telemetry (WMTS) and 
general telemetry.
    12. Telemetry. Incumbent non-medical telemetry operators in the 
1427-1429.5 MHz and 1429.5-1432 MHz bands include Itron, Inc., Pueblo 
Service Company of Colorado and E Prime, Inc., and large manufacturers 
such as Deere and Company, Caterpillar, and General Dynamics. None of 
these licensees are likely to be small businesses. Itron, Inc. is the 
primary user of the 1427-1429.5 MHz and 1429.5-1432 MHz bands. Itron, 
Inc., with an investment of $100 million in equipment development, is 
not likely to be a small business. One licensee, Zytex, a manufacturer 
of high-speed telemetry systems, may be a small business. The 
Commission does not yet know how many applicants or licensees in these 
bands will be small entities.
    13. WMTS. Users of medical telemetry are hospitals and medical care 
facilities, some of which are likely to be small businesses. The broad 
category of Hospitals consists of the following categories and the 
following small business providers with annual receipts of $29 million 
or less: General Medical and Surgical Hospitals, Psychiatric and 
Substance Abuse Hospitals, and Specialty Hospitals. For all these 
health care providers, census data indicate that there is a combined 
total of 330 firms that operated in 1997, of which 237 or fewer had 
revenues of less than $25 million. An additional 45 firms had annual 
receipts of $25 million to $49.99 million. We therefore estimate that 
most Hospitals are small, given SBA's size categories.
    14. The broad category of Nursing and Residential Care Facilities 
consists of the following categories and the following small business 
size standards. The category of Nursing and Residential Care Facilities 
with annual receipts of $6 million or less consists of: Residential 
Mental Health and Substance Abuse Facilities, Homes for the Elderly, 
and Other Residential Care Facilities. The category of Nursing and 
Residential Care Facilities with annual receipts of $8.5 million or 
less consists of Residential Mental Retardation Facilities. The 
category of Nursing and Residential Care Facilities with annual 
receipts of less than $11.5 million consists of: Nursing Care 
Facilities and Continuing Care Retirement Communities. For all of these 
health care providers, census data indicate that there is a combined 
total of 18,011 firms that operated in 1997. Of these, 16,165 or fewer 
firms had annual receipts of below $5 million. In addition, 1,205 firms 
had annual receipts of $5 million to $9.99 million, and 450 firms had 
receipts of $10 million to $24.99 million. We therefore estimate that a 
great majority of Nursing and Residential Care Facilities are small, 
given SBA's size categories.
Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements
    15. The Order imposes no new reporting, recordkeeping or other 
compliance requirements not previously adopted in this proceeding.
Steps Taken To Minimize Significant Economic Impact on Small Entities, 
and Significant Alternatives Considered
    16. The RFA requires an agency to describe any significant 
alternatives that it has considered in reaching its proposed approach, 
which may include the following four alternatives (among others): (i) 
The establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (ii) the clarification, consolidation, or simplification of 
compliance or reporting requirements under the rule for small entities; 
(iii) the use of performance, rather than design standards; and (iv) an 
exemption from coverage of the rule, or any part thereof, for small 
entities.
    17. Regarding our affirmation in the Order of the Commission's 
decision in the Report and Order to require frequency coordination for 
primary and secondary telemetry operations in the 1427-1429.5 MHz and 
1429.5-1432 MHz bands, we do not anticipate any adverse impact on small 
entities. Although there are certain costs associated with filing an 
application through an FCC-certified frequency coordinator, on balance, 
the benefits of frequency coordination, especially the avoidance of 
harmful interference, outweigh any costs. An alternative to this 
approach would have been to not require frequency coordination, but 
this is unacceptable because of high congestion, primary incumbent 
operations that must be protected, and the fact that licensees in these 
bands must share frequencies. Our amendment to the channel plans for 
telemetry operations in the 217-220 MHz and 1427-1432 MHz bands will 
benefit small entities by requiring less precise, and thus, less 
expensive equipment.
Report to Congress
    18. The Commission will send a copy of the Order, including this 
SFRFA, in a report to be sent to Congress pursuant to the Congressional 
Review Act. In addition, the Commission will send a copy of the Order, 
including this SFRFA, to the Chief Counsel for Advocacy of the Small 
Business Administration. A copy of this Order and SFRFA (or summaries 
thereof) will also be published in the Federal Register.

III. Ordering Clauses

    19. Accordingly, parts 1, 27, 90, and 95 of the Commission's Rules 
are amended effective August 30, 2004.
    20. Pursuant to Sections 4(i), 303(r), and 405 of the 
Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(r), 405, 
and Sec.  1.429 of the Commission's Rules, 47 CFR 1.429, that the 
petition for reconsideration filed by Aerospace and Flight Test Radio 
Coordinating Council on July 22, 2002 is denied in part to the extent 
set forth above.
    21. Pursuant to Sections 4(i), 303(r), and 405 of the 
Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(r), 405, 
and Sec.  1.429 of the Commission's Rules, 47 CFR 1.429, that the 
petition for reconsideration filed by

[[Page 39867]]

the American Society for Health Care Engineering of the American 
Hospital Association on July 22, 2002 is denied.
    22. Pursuant to Sections 4(i), 303(r), and 405 of the 
Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(r), 405, 
and Sec.  1.429 of the Commission's Rules, 47 CFR 1.429, that the 
petition for reconsideration filed by Celtronix Telemetry, Inc. on July 
22, 2002 is granted to the extent set forth above.
    23. Pursuant to Sections 4(i), 303(r), and 405 of the 
Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(r), 405, 
that the petition for clarification filed by Final Analysis 
Communication Services, Inc. on July 22, 2002 is partially granted and 
partially denied to the extent set forth above.
    24. Pursuant to Sections 4(i), 303(r), and 405 of the 
Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(r), 405, 
and Sec.  1.429 of the Commission's Rules, 47 CFR 1.429, that the 
petition for reconsideration filed by Itron, Inc. on July 22, 2002 is 
dismissed.
    25. Pursuant to Sections 4(i), 303(r), and 405 of the 
Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(r), 405, 
that the petition for clarification filed by the Ornithological Council 
on November 5, 2002 is granted.

List of Subjects

47 CFR Part 1

    Administrative practice and procedure, Radio.

47 CFR Part 27

    Communications common carriers, Radio.

47 CFR Part 90

    Communications equipment, Radio, Reporting and recordkeeping 
requirements.

47 CFR Part 95

    Communications equipment, Radio, Reporting and recordkeeping 
requirements.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Rule Changes

0
For the reasons discussed in the preamble, 47 CFR parts 1, 27, 90, and 
95 are amended as follows:

PART 1--PRACTICE AND PROCEDURE

0
1. The authority citation for part 1 continues to read as follows:

    Authority: 47 U.S.C. 151, 154(i), 154(j), 155, 225, 303(r), 309, 
and 325(e).

0
2. Section 1.1307(b)(1) is amended by revising the entry in Table 1 for 
the ``Wireless Communications Service (Part 27)'' to read as follows:


Sec.  1.1307  Actions that may have a significant environmental effect, 
for which Environmental Assignments (EAs) must be prepared.

* * * * *
    (b) * * *
    (1) * * *

          Table 1.--Transmitters, Facilities and Operations Subject to Routine Environmental Evaluation
----------------------------------------------------------------------------------------------------------------
            Service (title 47 CFR rule part)                             Evaluation required if:
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Wireless Communications Service (Part 27)..............  (1) for the 1390-1392 MHz, 1392-1395 MHz, 1432-1435 MHz
                                                          1670-1675 MHz and 2385-2390 MHz bands:
                                                         Non-building-mounted antennas: Height above ground
                                                          level to lowest point of antenna < 10 m and total
                                                          power of all channels > 2000 W ERP (3280 W EIRP).
                                                         Building-mounted antennas: Total power of all channels
                                                          > 2000 W ERP (3280 W EIRP).
                                                         (2) for the 698-746 MHz, 746-764 MHz, 776-794 MHz, 2305-
                                                          2320 MHz, and 2345-2360 MHz bands.
                                                         Total power of all channels > 1000 W ERP (1640 W EIRP).
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

PART 27--MISCELLANEOUS WIRELESS COMMUNICATIONS SERVICES

0
3. The authority citation for part 27 continues to read as follows:

    Authority: 47 U.S.C. 154, 301, 302, 303, 307, 309, 332, 336, and 
337, unless otherwise noted.


0
4. Section 27.11 is amended by revising paragraphs (e) through (h) to 
read as follows:


Sec.  27.11  Initial authorization.

* * * * *
    (e) 1390-1392 MHz band. Initial authorizations for the 1390-1392 
MHz band shall be for 2 megahertz of spectrum in accordance with Sec.  
27.5(d). Authorizations will be based on Major Economic Areas (MEAs), 
as specified in Sec.  27.6(d).
    (f) The paired 1392-1395 MHz and 1432-1435 MHz bands. Initial 
authorizations for the paired 1392-1395 MHz and 1432-1435 MHz bands 
shall be for 3 megahertz of paired spectrum in accordance with Sec.  
27.5(e). Authorization for Blocks A and B will be based on Economic 
Areas Groupings (EAGs), as specified in Sec.  27.6(e).
    (g) 1670-1675 MHz band. Initial authorizations for the 1670-1675 
MHz band shall be for 5 megahertz of spectrum in accordance with Sec.  
27.5(f). Authorizations will be on a nationwide basis.
    (h) 2385-2390 MHz band. Initial authorizations for the 2385-2390 
MHz band shall be for 5 megahertz of spectrum in accordance with Sec.  
27.5(g). Authorizations will be on a nationwide basis.
* * * * *

PART 90--PRIVATE LAND MOBILE RADIO SERVICES

0
5. The authority citation for part 90 continues to read as follows:

    Authority: Sections 4(i), 11, 303(g), 303(r), and 332(c)(7) of 
the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 161, 
303(g), 303(r), 332(c)(7).


Sec.  90.175  [Amended]

0
6. Section 90.175 is revised by removing paragraph (j)(13) and 
redesignating paragraphs (j)(14) through (17) as (j)(13) through (16).

0
7. Section 90.209 is amended by revising the entry for ``216-2205'' in 
the

[[Page 39868]]

table in paragraph (b)(5) to read as follows:


Sec.  90.209  Bandwidth limitations.

* * * * *
    (b) * * *
    (5) * * *

                                       Standard Channel Spacing/bandwidth
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                                                                                          Authorized bandwidth
                    Frequency band (MHz)                        Channel spacing (kHz)             (kHz)
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
216-2205....................................................                     6.25            20/11.25/6 \5\
 
                                                 * * * * * * *
----------------------------------------------------------------------------------------------------------------
\5\ Licensees will be allowed to combine contiguous channels up to 50 kHz, and more than 50 kHz only upon a
  showing of adequate justification per Sec.   90.259(b)(10).

* * * * *

0
8. Section 90.259 is amended by revising paragraphs (a)(7), (a)(8), 
(b)(7), (b)(9), and (c)(3) to read as follows:


Sec.  90.259  Assignment and use of frequencies in the bands 216-220 
MHz and 1427-1432 MHz.

    (a) * * *
    (7) Frequencies will be assigned with a 6.25 kHz, 12.5 kHz, 25 kHz 
or 50 kHz channel bandwidth. Frequencies may be assigned with a channel 
bandwidth exceeding 50 kHz only upon a showing of adequate 
justification.
    (8) Assignable 6.25 kHz channels will occur in increments of 6.25 
kHz from 217.00625 MHz to 219.99375 MHz. Assignable 12.5 kHz channels 
will occur in increments of 12.5 kHz from 217.0125 MHz to 219.9875 MHz. 
Assignable 25 kHz channels will occur in increments of 25 kHz from 
217.025 MHz to 219.975 MHz. Assignable 50 kHz channels will occur in 
increments of 50 kHz from 217.025 MHz to 219.975 MHz.
* * * * *
    (b) * * *
    (7) For primary operations base, mobile, operational fixed and 
temporary fixed operations are permitted.
    (i) At the locations specified in paragraph (b)(4) of this section, 
primary operations are performed in the 1427-1429 MHz and 1431.5-1432 
MHz bands. The maximum ERP limitations are as follows:

----------------------------------------------------------------------------------------------------------------
                                                                       Frequency range (MHz)
                    Operation                    ---------------------------------------------------------------
                                                     1427-1428      1428-1428.5     1428.5-1429     1431.5-1432
----------------------------------------------------------------------------------------------------------------
Fixed (watts)...................................          61.1             6.11            0.611           0.611
Mobile (watts)..................................           0.611           0.611           0.015           0.015
Temporary fixed (watts).........................           0.611           0.611           0.611           0.611
----------------------------------------------------------------------------------------------------------------

    (ii) For all other locations, primary operations are performed in 
the 1429.5-1432 MHz band. The maximum ERP limitations are as follows:

----------------------------------------------------------------------------------------------------------------
                                                                       Frequency range (MHz)
                    Operation                    ---------------------------------------------------------------
                                                    1429.5-1430     1430-1430.5    1430.5-1431.5    1431.5-1432
----------------------------------------------------------------------------------------------------------------
Fixed (watts)...................................           0.611           0.611           6.11           61.1
Mobile (watts)..................................           0.015           0.611           0.611           0.611
Temporary fixed (watts).........................           0.611           0.611           0.611           0.611
----------------------------------------------------------------------------------------------------------------

* * * * *
    (9) Assignable frequencies occur in increments of 12.5 kHz from 
1427.00625 MHz to 1431.99375 MHz.
* * * * *
    (c) * * *
    (3) Except for the transmissions that are permitted under Sec.  
90.248(f) of this chapter, airborne use is prohibited.
* * * * *

PART 95--PERSONAL RADIO SERVICES

0
9. The authority citation for part 95 continues to read as follows:

    Authority: Sections 4, 303, 48 Stat. 1066, 1082 as amended; 47 
U.S.C. 154, 303.


0
10. Section 95.630 is revised to read as follows:


Sec.  95.630  WMTS Transmitter frequencies.

    WMTS transmitters may operate in the frequency bands specified as 
follows:
    608-614 MHz
    1395-1400 MHz
    1427-1429.5 MHz except at the locations listed in Sec.  
90.259(b)(4) where WMTS may operate in the 1429-1431.5 MHz band.

[FR Doc. 04-14480 Filed 6-30-04; 8:45 am]
BILLING CODE 6712-01-U