[Federal Register Volume 82, Number 139 (Friday, July 21, 2017)]
[Proposed Rules]
[Pages 33829-33833]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-15305]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 82, No. 139 / Friday, July 21, 2017 /
Proposed Rules
[[Page 33829]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 986
[Doc. No. AMS-SC-17-0032, SC17-986-2 PR]
Pecans Grown in the States of Alabama, Arkansas, Arizona,
California, Florida, Georgia, Kansas, Louisiana, Missouri, Mississippi,
North Carolina, New Mexico, Oklahoma, South Carolina, and Texas;
Establishment of Reporting Requirements and New Information Collection
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule.
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SUMMARY: This proposed rule invites comments on the establishment of
reporting requirements under the Federal marketing order for pecans
(order). The American Pecan Council (Council) locally administers the
order and is comprised of growers and handlers of pecans operating
within the production area and a public member. This action would
require all pecan handlers to submit two forms to the Council: One for
inter-handler transfers and another that includes year-end inventory
and pecans handled throughout the year. The Council would use this
information to facilitate assessment collection and provide valuable
reports to the industry, including the annual marketing policy required
by the order. This proposal also announces the Agricultural Marketing
Service's (AMS) intention to request approval from the Office of
Management and Budget (OMB) of a new information collection.
DATES: Comments must be received by September 19, 2017. Pursuant to the
Paperwork Reduction Act, comments on the information collection burden
must be received by September 19, 2017.
ADDRESSES: Interested persons are invited to submit written comments
concerning this proposal. Comments must be sent to the Docket Clerk,
Marketing Order and Agreement Division, Specialty Crops Program, AMS,
USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-
0237; Fax: (202) 720-8938; or Internet: http://www.regulations.gov. All
comments should reference the document number and the date and page
number of this issue of the Federal Register and will be made available
for public inspection in the Office of the Docket Clerk during regular
business hours, or can be viewed at: http://www.regulations.gov. All
comments submitted in response to this proposal will be included in the
record and will be made available to the public. Please be advised that
the identity of the individuals or entities submitting the comments
will be made public on the Internet at the address provided above.
FOR FURTHER INFORMATION CONTACT: Jennie M. Varela, Marketing
Specialist, or Christian D. Nissen, Regional Director, Southeast
Marketing Field Office, Marketing Order and Agreement Division,
Specialty Crops Program, AMS, USDA; Telephone: (863) 324-3375, Fax:
(863) 291-8614, or Email: [email protected] or
[email protected].
Small businesses may request information on complying with this
regulation by contacting Richard Lower, Marketing Order and Agreement
Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue
SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491,
Fax: (202) 720-8938, or Email: [email protected].
SUPPLEMENTARY INFORMATION: This proposal is issued under Marketing
Agreement and Order No. 986, (7 CFR part 986), regulating the handling
of pecans grown in the states of Alabama, Arkansas, Arizona,
California, Florida, Georgia, Kansas, Louisiana, Missouri, Mississippi,
North Carolina, New Mexico, Oklahoma, South Carolina, and Texas,
hereinafter referred to as the ``order.'' The order is effective under
the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C.
601-674), hereinafter referred to as the ``Act.''
The Department of Agriculture (USDA) is issuing this proposed rule
in conformance with Executive Orders 13563 and 13175.
This action falls within a category of regulatory actions that the
Office of Management and Budget (OMB) has exempted from Executive Order
12866 review. Additionally, because this rule does not meet the
definition of a significant regulatory action it does not trigger the
requirements contained in Executive Order 13771. See OMB's Memorandum
titled ``Interim Guidance Implementing Section 2 of the Executive Order
of January 30, 2017 titled `Reducing Regulation and Controlling
Regulatory Costs'[thinsp]'' (February 2, 2017).
This proposed rule has been reviewed under Executive Order 12988,
Civil Justice Reform. This proposed rule is not intended to have
retroactive effect.
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under section 608c(15)(A) of the
Act, any handler subject to an order may file with USDA a petition
stating that the order, any provision of the order, or any obligation
imposed in connection with the order is not in accordance with law and
request a modification of the order or to be exempted therefrom. A
handler is afforded the opportunity for a hearing on the petition.
After the hearing, USDA would rule on the petition. The Act provides
that the district court of the United States in any district in which
the handler is an inhabitant, or has his or her principal place of
business, has jurisdiction to review USDA's ruling on the petition,
provided an action is filed not later than 20 days after the date of
the entry of the ruling.
This proposed rule would establish reporting requirements under the
order. This action would require all pecan handlers to submit to the
Council reports of inter-handler transfers of pecans, inventory, and a
summary of pecans handled. This information would be used to facilitate
assessment collection and provide valuable reports to the industry,
including the annual marketing policy required by the order. This
proposal was unanimously recommended by the Council at its April 17,
2017, meeting.
Section 986.61 of the order requires all handlers warehousing
pecans as of August 31 be identified as the handler of those pecans and
pay the assessment rate accordingly. Section 986.62 provides the
Council, with the approval of the Secretary, authority to establish
methods and procedures, including
[[Page 33830]]
necessary reports, to maintain accurate records for inter-handler
transfers. Sections 986.75, 986.76, and 986.77 provide authority to
prescribe reports of handler inventory, merchantable pecans handled,
and pecans received by handlers, respectively. Section 986.78 further
provides the Council, with the approval of the Secretary, authority to
collect other reports and information from handlers needed to enable
the Council to perform its duties. This proposed rule would utilize
these authorities to establish new Sec. Sec. 986.162 and 986.175 under
the rules and regulations of the order. These new sections would
require handlers of pecans to report to the Council any inter-handler
transfers, and the volume of shelled, inshell, and total volume of
pecans handled each fiscal year by type using specific Council forms.
At its November 16, 2016 meeting, the first meeting following the
order's promulgation, the Council discussed its initial budget,
assessment rates, and necessary reporting requirements in order to set
up a program that is efficient and responsive to industry needs. During
these discussions, the Council established a Statistics and Reporting
Committee (Committee) to develop reporting requirements.
Members of the Committee discussed the reporting needs of the
industry, reviewed examples of reporting forms from other marketing
orders, and met and worked with the staff of another marketing order in
developing the proposed reporting requirements. The Committee also
worked with USDA to ensure the recommended information collection would
provide the information necessary to facilitate the administration of
the order.
At its February 23, 2017 meeting, the Council reviewed drafts of
seven reporting forms as developed and recommended by the Committee.
The Council expressed its interest in having as much electronic
reporting as possible, but recognized that many handlers may prefer a
paper submission. The Council also considered the timing of when forms
would be due and submission dates that would work for all parts of the
industry. After a thorough review and some modifications, seven forms
were approved by the Council.
At a meeting on April 17, 2017, the Council revisited the
recommended reporting requirements and the accompanying forms.
Acknowledging the industry was more than halfway through the fiscal
year at that time, the Council took action to move forward with the
minimum reports necessary to facilitate the collection of assessments
and to provide the other information needed for the 2016-17 fiscal
year. Specifically, the Council voted to utilize two forms for the
current fiscal year, one focusing on inter-handler transfers, and one
containing information regarding year-end inventory and pecans handled
throughout the fiscal year. The Council agreed it still wanted to move
forward with all seven forms for the 2017-18 fiscal year, but
considered year-end reporting on two forms as the most viable option
for this fiscal year. The remaining five forms will be proposed in a
subsequent rulemaking action.
This proposed rule would add two new reporting requirements and two
new forms to the rules and regulations under the order by adding
Sec. Sec. 986.162 and 986.175. The pecan industry includes a subset of
handlers, defined in the order as accumulators, who compile pecans for
the purpose of resale or transfer to another handler. Additionally,
small handlers may also sell or transfer pecans to other handlers.
During the formal rulemaking hearing, the industry expressed concern
that it may be difficult to track pecans moved through accumulators or
transferred between handlers. Further, some handlers and accumulators
that are small operations may find reporting, recordkeeping, and paying
assessments burdensome.
The report of inter-handler transfers would include information on
the month of transfer, type of pecans transferred, the volume
transferred, the amount of assessments owed on the pecans transferred,
identification information and signatures of the two handlers involved,
and whether the transferring handler or receiving handler would be
responsible for reporting and paying the assessments. This report would
help ensure that transferred pecans are not counted twice for volume
reporting purposes and would help facilitate the collection of
assessments. It would also allow receiving handlers to assume the
reporting burden from smaller entities and ensure payment of
corresponding assessments.
The Council selected the tenth day of the month following the month
of transfer as the due date for reports of inter-handler transfers.
Should the tenth day of the month fall on a weekend or holiday, reports
would be due by the first business day following the tenth day of the
month. However, given that the current season began October 1, 2016,
for the 2016-17 fiscal year, all inter-handler transfer forms would
need to be submitted by Monday, September 11, 2017. For subsequent
fiscal years, reports of inter-handler transfers would be due on a
monthly basis as specified above.
In order to correctly collect assessments, provide industry data,
and complete a marketing policy for the coming fiscal year, the Council
requires accurate reports of what has been handled and what is in
inventory going into the next fiscal year. Based on Council
discussions, it is also important for the industry to know the variety
and form of the pecan in inventory. This information would be vital to
the industry as it enters the next harvest, as the amount and type of
inventory impacts prices of the new crop. Collection of this data was
one of the industry's goals in promulgating the order, as currently
there is no source for this type of information across the 15-state
production area. This information would be captured in the year-end
inventory report.
The year-end inventory report would include information on the
handler submitting the form, total pounds by type of pecans inshell and
shelled in inventory, inventory committed but not shipped for both
export and domestic, and any uncommitted inventory. It would also
include information on pecans handled throughout the year, as well as
data for total inventory including both shelled and inshell, with
shelled volume converted to an inshell basis using the conversion
specified in the order (volume shelled x 2). In addition, it would
include information regarding total assessments owed, assessments paid
to date, and remaining assessments due for that handler.
The order specifies that on August 31 of each year, every handler
warehousing inshell pecans shall be identified as the first handler of
those pecans and shall be required to pay the required assessment rate.
The order also specifies that the marketing policy include an estimate
of the handler inventory as of August 31. Consequently, the Council
selected September 10 as the due date for the year-end inventory
report, or the first business day following the tenth of September
should the tenth fall on a weekend or a holiday. The Council believes
this would give all handlers sufficient time to submit the information
to the Council after August 31. Further, handlers would be required to
pay to the Council all remaining unpaid assessments by the due date of
the year-end inventory report.
This action would require all pecan handlers to provide the Council
with reports of any inter-handler transfers, year-end inventory, and
pecans handled throughout the year. This information would facilitate
assessment collections, provide valuable reports to the industry,
[[Page 33831]]
and allow the Council to complete the annual marketing policy required
by the order.
The Council also recommended additional reporting requirements,
which would be effective for the 2017-18 fiscal year. These
requirements are being considered under a separate action.
Initial Regulatory Flexibility Analysis
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS)
has considered the economic impact of this action on small entities.
Accordingly, AMS has prepared this initial regulatory flexibility
analysis.
The purpose of the RFA is to determine whether the regulatory
action will have a significant economic impact on a substantial number
of small entities and to fit regulatory actions to the scale of
businesses subject to such actions in order that small businesses will
not be unduly or disproportionately burdened. Marketing orders issued
pursuant to the Act, and the rules issued thereunder, are unique in
that they are brought about through group action of essentially small
entities acting on their own behalf.
There are approximately 2,500 growers of pecans in the production
area and approximately 250 handlers subject to regulation under the
marketing order. Small agricultural growers are defined by the Small
Business Administration as those having annual receipts less than
$750,000, and small agricultural service firms are defined as those
whose annual receipts are less than $7,500,000 (13 CFR 121.201).
According to information from the National Agricultural Statistics
Service (NASS), the average grower price for pecans during the 2015-16
season was $2.20 per pound and 254 million pounds were utilized. The
value for pecans that year totaled $558.8 million ($2.20 per pound
multiplied by 254 million pounds). Taking the total value of production
for pecans and dividing it by the total number of pecan growers
provides an average return per grower of $223,520. Using the average
price and utilization information, and assuming a normal bell-curve
distribution of receipts among growers, the majority of growers receive
less than $750,000 annually.
Evidence presented at the formal rulemaking hearing indicates an
average handler margin of $0.58 per pound. Adding this margin to the
average grower price of $2.20 per pound of inshell pecans results in an
estimated handler price of $2.78 per pound. With a total 2015
production of 254 million pounds, ($2.78 per pound multiplied by 254
million pounds) the total value of production in 2015 was $706.12
million. Taking the total value of production for pecans and dividing
it by the total number of pecan handlers provides an average return per
handler of $2,824,480. Using this estimated price, the utilization
volume, number of handlers, and assuming a normal bell-curve
distribution of receipts among handlers, the majority of handlers have
annual receipts of less than $7,500,000. Thus, the majority (a
substantial number) of growers and handlers of pecans grown in the
states of Alabama, Arkansas, Arizona, California, Florida, Georgia,
Kansas, Louisiana, Missouri, Mississippi, North Carolina, New Mexico,
Oklahoma, South Carolina, and Texas may be classified as small
entities.
This proposed rule would establish reporting requirements under the
order. This action would require all pecan handlers to provide the
Council with reports of any inter-handler transfers, year-end
inventory, and pecans handled throughout the year. This information
would facilitate the Council's collection of assessments and provide
valuable reports to the industry. This rule would establish new
Sec. Sec. 986.162 and 986.175 under the rules and regulations of the
order. The authority for this action is provided for in Sec. Sec.
986.62, 986.75, 986.76, 986.77, and 986.78 of the order.
Requiring reports of transfers, handler inventory, and pecans
handled throughout the year would impose an increase in the reporting
burden on all pecan handlers. However, this data is already recorded
and maintained by handlers as a part of their daily business. Handlers,
regardless of size, should be able to readily access this information.
Consequently, any additional costs associated with this change would be
minimal (not significant) and apply equally to all handlers.
This action should also help the entire industry by providing
comprehensive data on pecans handled and year-end inventory. Collection
of this data was one of the industry's goals in promulgating the order
as there is no other source for this type of data. This information
would help with marketing and planning for the industry, as well as
provide important information for the collection of assessments and in
preparing the annual marketing policy required by the order. The
benefits of this rule are expected to be equally available to all pecan
growers and handlers, regardless of their size.
The Council discussed other alternatives to this action, including
having additional reporting requirements, but determined that in order
to efficiently carry out the objectives of the marketing order this
first fiscal year, the information collected in these two reports would
be sufficient. The Council also considered requiring the inter-handler
transfer form to be submitted for each transfer. However, the Council
determined that could be burdensome for some handlers and a monthly
report would provide the necessary documentation. Therefore, the
alternatives were rejected.
This proposal would establish two new reporting requirements and
would require two new Council forms. Therefore, this proposed rule
would impose an increase in the reporting burden for all handlers,
which is discussed in the Paperwork Reduction Act section of this
document.
As with all Federal marketing order programs, reports and forms are
periodically reviewed to reduce information requirements and
duplication by industry and public sector agencies. USDA has not
identified any relevant Federal rules that duplicate, overlap, or
conflict with this rule.
AMS is committed to complying with the E-Government Act, to promote
the use of the Internet and other information technologies to provide
increased opportunities for citizen access to Government information
and services, and for other purposes.
Further, the Council's meetings were widely publicized throughout
the pecan industry and all interested persons were invited to attend
the meetings and participate in Council deliberations on all issues.
Additionally, the Council's Committee meetings held February 23, 2017,
and April 17, 2017, were also public meetings and all entities, both
large and small, were able to express views on this issue. Finally,
interested persons are invited to submit comments on this proposed
rule, including the regulatory and information collection impacts of
this action on small businesses.
A small business guide on complying with fruit, vegetable, and
specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/rules-regulations/moa/small-businesses. Any questions
about the compliance guide should be sent to Richard Lower at the
previously-mentioned address in the FOR FURTHER INFORMATION CONTACT
section.
A 60-day comment period is provided to allow interested persons to
respond to this proposal. All written comments
[[Page 33832]]
timely received will be considered before a final determination is made
on this matter.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
chapter 35), this notice announces AMS's intent to request approval
from the Office of Management and Budget (OMB) for a new information
collection under OMB No. 0581--NEW. It will be merged with the forms
currently approved under OMB No. 0581-0291 ``Federal Marketing Order
for Pecans.''
Title: Pecans Grown in the States of Alabama, Arkansas, Arizona,
California, Florida, Georgia, Kansas, Louisiana, Missouri, Mississippi,
North Carolina, New Mexico, Oklahoma, South Carolina, and Texas;
Marketing Order No. 986.
OMB Number: 0581--NEW.
Type of Request: New Collection.
Abstract: The information requirements in this request are
essential to carry out the intent of the Act, to provide the
respondents the type of service they request, and to administer the
pecan marketing order program.
On April 17, 2017, the Council unanimously recommended that all
pecan handlers covered under the order provide the Council with a
record of any inter-handler transfers by type and volume. This form,
titled ``Report of Inter-Handler Transfers of Pecans'', would be
submitted directly to the Council by handlers by the tenth day of the
month following the transfer(s).
This information collection would improve the accuracy of the
Council's data collection by accounting for transferred pecans, and
allow smaller handlers to transfer reporting and assessment obligations
to another handler.
The Council also recommended that all handlers covered under the
order submit an annual report of inventory held by type as well as a
summary of pecans handled for the year. This form, titled ``Year End
Inventory Report'', would be submitted directly to the Council by
handlers by September 10. This information collection will facilitate
the Council's collection of assessments needed to administer the
program and provide necessary data for the industry on volume handled.
It would also provide the volume in inventory going into the next
fiscal year, which would assist with market planning and provide
information for the marketing policy required by the order.
The information collected would only be used by authorized
representatives of the USDA, including the AMS Specialty Crops Program
regional and headquarters staff, and authorized employees of the
Council. Authorized Council employees would be the primary users of the
information, and the AMS would be the secondary users. The Council's
staff would compile the information and utilize it to account for
assessments due, to calculate total pecans handled, and to prepare a
marketing policy as required under the order. All proprietary
information would be kept confidential in accordance with the Act and
the order.
The proposed request for new information collection under the order
is as follows:
Report of Inter-Handler Transfer of Pecans
Estimate of Burden: Public reporting burden for this collection of
information is estimated to be an average of 0.16 hours per response.
Respondents: Handlers of pecans in Alabama, Arkansas, Arizona,
California, Florida, Georgia, Kansas, Louisiana, Missouri, Mississippi,
North Carolina, New Mexico, Oklahoma, South Carolina, and Texas.
Estimated Number of Respondents: 30.
Estimated Number of Responses per Respondent: 12.
Estimated Total Annual Burden on Respondents: 60 hours.
Year End Inventory Report
Estimate of Burden: Public reporting burden for this collection of
information is estimated to be an average of 0.33 hours per response.
Respondents: Handlers of pecans in Alabama, Arkansas, Arizona,
California, Florida, Georgia, Kansas, Louisiana, Missouri, Mississippi,
North Carolina, New Mexico, Oklahoma, South Carolina, and Texas.
Estimated Number of Respondents: 250.
Estimated Number of Responses per Respondent: 1.
Estimated Total Annual Burden on Respondents: 125 hours.
Comments are invited on: (1) Whether the proposed collection of
information is necessary for the proper performance of the functions of
the agency, including whether the information will have practical
utility; (2) the accuracy of the agency's estimate of the burden of the
proposed collection of information, including the validity of the
methodology and assumptions used; (3) ways to enhance the quality,
utility, and clarity of the information to be collected; and (4) ways
to minimize the burden of the collection of information on those who
are to respond, including the use of appropriate automated, electronic,
mechanical, or other technological collection techniques or other forms
of information technology.
Comments should reference OMB No. 0581-NEW and the Marketing Order
for Pecans Grown in the states of Alabama, Arkansas, Arizona,
California, Florida, Georgia, Kansas, Louisiana, Missouri, Mississippi,
North Carolina, New Mexico, Oklahoma, South Carolina, and Texas, and
should be sent to the USDA in care of the Docket Clerk at the
previously-mentioned address or at http://www.regulations.gov.
All responses to this notice will be summarized and included in the
request for OMB approval. All comments received will become a matter of
public record and will be available for public inspection during
regular business hours at the address of the Docket Clerk or at http://www.regulations.gov.
If this proposed rule is finalized, this information collection
will be merged with the forms currently approved under OMB No. 0581-
0291 ``Federal Marketing Order for Pecans.''
List of Subjects in 7 CFR Part 986
Marketing agreements, Nuts, Pecans, Reporting and recordkeeping
requirements.
For the reasons set forth in the preamble, 7 CFR part 986 is
proposed to be amended as follows:
PART 986--PECANS GROWN IN THE STATES OF ALABAMA, ARKANSAS, ARIZONA,
CALIFORNIA, FLORIDA, GEORGIA, KANSAS, LOUISIANA, MISSOURI,
MISSISSIPPI, NORTH CAROLINA, NEW MEXICO, OKLAHOMA, SOUTH CAROLINA,
AND TEXAS
0
1. The authority citation for 7 CFR part 986 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
0
2. Revise the heading ``Subpart B--[Reserved]'' to read ``Subpart--
Rules and Regulations.''
0
3. Add Sec. 986.162 to subpart B to read as follows:
Sec. 986.162 Inter-handler transfers.
(a) Inter-handler transfers of inshell pecans, pursuant to Sec.
986.62, shall be reported to the Council on APC Form 4. Handlers shall
file reports by the tenth day of the month following the month of
transfer. Should the tenth day of the month fall on a weekend or
holiday, reports are due by the first business day following the tenth
day of the month; Provided, that for the 2016-17 fiscal year, all
inter-handler transfer forms
[[Page 33833]]
shall be submitted by Monday, September 11, 2017. The report shall
contain the following information:
(1) Month of transfer;
(2) The type and weight of pecans transferred;
(3) The amount of assessments owed on the pecans transferred;
(4) The names and signatures for both the transferring and
receiving handlers;
(5) Handler assuming the reporting and assessment obligations on
the pecans transferred.
0
4. Add Sec. 986.175 to read as follows:
Sec. 986.175 Handler inventory.
(a) Handlers shall submit to the Council a year-end inventory
report following August 31 each fiscal year. Handlers shall file such
reports by September 10. Should September 10 fall on a weekend, reports
are due by the first business day following September 10. Such reports
shall be reported to the Council on APC Form 7 and include:
(1) The name and address of the handler;
(2) The total weight and type of inshell pecans in inventory,
regardless of country of origin;
(3) The total weight and type of shelled pecans in inventory,
regardless of country of origin;
(4) The total weight and type of inshell pecans committed, not
shipped, for export and domestic shipments, and any uncommitted
inventory, regardless of country of origin;
(5) The total weight and type of shelled pecans committed, not
shipped, for export and domestic shipments, and any uncommitted
inventory, regardless of country of origin;
(6) The combined total inventory for inshell and shelled pecans
calculated on an inshell basis, and combined weight committed, not
shipped, for exports and domestic shipments, and any uncommitted
inventory;
(7) Total weight and type of domestic pecans handled for the fiscal
year;
(8) Total assessments owed, assessments paid to date, and remaining
assessments due to be paid by the due date of the year-end inventory
report for the fiscal year.
Dated: July 17, 2017.
Bruce Summers,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 2017-15305 Filed 7-20-17; 8:45 am]
BILLING CODE 3410-02-P