[Federal Register Volume 76, Number 45 (Tuesday, March 8, 2011)]
[Rules and Regulations]
[Pages 12600-12604]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-5222]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 11
[EB Docket No. 04-296; FCC 11-12]
Review of the Emergency Alert System
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: In this document, the Federal Communications Commission
(Commission) amends its rules governing the Emergency Alert System
(EAS) to provide for national EAS testing and collection of data from
such tests. This will help determine whether the EAS functions as
intended to deliver a national Presidential alert.
DATES: Effective March 8, 2011.
FOR FURTHER INFORMATION CONTACT: Lisa Fowlkes, Deputy Bureau Chief,
Public Safety and Homeland Security Bureau, at (202) 418-7452, or by e-
mail at Lisa.Fowlkes@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Third
Report and Order (Third R&O) in EB Docket No. 04-296, FCC 11-12,
adopted on February 2, 2011, and released on February 3, 2011. The full
text of this document is available for inspection and copying during
normal business hours in the FCC Reference Center (Room CY-A257), 445
12th Street, SW., Washington, DC 20554. The complete text of this
document also 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: http://www.fcc.gov.
1. The Third R&O amends the Commission's part 11 rules governing
the EAS to require: all EAS Participants to participate in national EAS
tests as scheduled by the Commission in consultation with the Federal
Emergency Management Agency (FEMA); that the first national EAS test
use the Emergency Alert Notification (EAN), the live event code for
nationwide Presidential alerts; that the national test replace the
monthly and weekly EAS tests in the month and week in which it is held;
that the Commission's Public Safety and Homeland Security Bureau
(Bureau) provide at least two months public notice prior to any
national test of the EAS; EAS Participants to submit test-related data
to the Bureau within 45 days following a national EAS test; and that
test data received from EAS Participants be treated as presumptively
confidential, but allow test data to be shared on a confidential basis
with other Federal agencies and State governmental emergency management
agencies that have confidentiality protection as least equal to that
provided by the Freedom of Information Act (FOIA). The Third R&O also
notes that the Commission will shortly be releasing a public notice
establishing a voluntary electronic reporting system that EAS test
participants may use as part of their participation in the national EAS
test. The Third R&O also delegates authority to the Bureau to
determine, in consultation with FEMA and with other EAS stakeholders,
as appropriate, various administrative procedures for national tests,
including test codes to be used and pre-test outreach.
I. Procedural Matters
A. Paperwork Reduction Act Analysis
2. This document contains modified information collection
requirements subject to the Paperwork Reduction Act of 1995 (PRA),
Public Law 104-13. It has been submitted to the Office of Management
and Budget (OMB) for review under section 3507(d) of the PRA. OMB, the
general public, and other Federal agencies are invited to comment on
the new or modified information collection requirements contained in
this proceeding. In addition, the Commission notes that pursuant to the
Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44
U.S.C. 3506(c)(4),
[[Page 12601]]
it previously sought specific comment on how it might further reduce
the information collection burden for small business concerns with
fewer than 25 employees.
3. In this present document, the Commission has assessed the
effects of the information collection associated with national testing
of the EAS, and finds that because this information collection requests
information that is readily available and easily accessible to all EAS
Participants, and, further, that may be submitted electronically, none
of the requirements in the collection will pose a substantial burden
for businesses with fewer than 25 employees.
B. Congressional Review Act
4. The Commission will send a copy of this Third R&O in a report to
be sent to Congress and the Government Accountability Office pursuant
to the Congressional Review Act (CRA), see 5 U.S.C. 801(a)(1)(A).
II. Final Regulatory Flexibility Analysis
5. As required by the Regulatory Flexibility Act of 1980, as
amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was
incorporated into the Second Further Notice of Proposed Rulemaking in
EB Docket 04-296 (Second FNPRM). The Commission sought written comment
on the proposals in the Second FNPRM, including comment on the IRFA.
This Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.
A. Need for, and Objectives of, the Proposed Rules
6. This Third R&O seeks to ensure that the Commission's EAS rules
better protect the life and property of all Americans. To further serve
this goal, this Third R&O adopts a rule to implement national testing
of the EAS through use of a coded EAS message which will replace a
required monthly test, and requiring logging and provision to the
Commission of test-related diagnostic information within 45 days of the
test.
7. Specifically, this Third R&O:
Requires all EAS Participants to participate in national
EAS tests as scheduled by the Commission in consultation with FEMA;
Requires that the first national EAS test use the EAN, the
live event code for nationwide Presidential alerts;
Requires that the national test replace the monthly and
weekly EAS tests in the month and week in which it is held;
Requires the Bureau to provide at least two months' public
notice prior to any national test of the EAS;
Requires EAS Participants to submit test-related data to
the Bureau within 45 days following a national EAS test;
Requires that test data received from EAS Participants be
treated as presumptively confidential, but allow test data to be shared
on a confidential basis with other Federal agencies and State
governmental emergency management agencies that have confidentiality
protection at least equal to that provided by the FOIA;
Notes that the Commission will shortly be releasing a
public notice establishing a voluntary electronic reporting system that
EAS test participants may use as part of their participation in the
national EAS test; and
Delegates authority to the Bureau to determine, in
consultation with FEMA and with other EAS stakeholders, as appropriate,
various administrative procedures for national tests, including test
codes to be used and pre-test outreach.
B. Summary of Significant Issues Raised by Public Comments in Response
to the IRFA
8. There were no comments that specifically addressed the IRFA.
C. Description and Estimate of the Number of Small Entities to Which
Rules Will Apply
9. 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 rules adopted herein. The RFA generally defines the
term ``small entity'' as having the same meaning as the terms ``small
business,'' ``small organization,'' and ``small governmental
jurisdiction.'' In addition, the term ``small business'' has the same
meaning as the term ``small business concern'' under the Small Business
Act. A ``small business concern'' is one which: (1) Is independently
owned and operated; (2) is not dominant in its field of operation; and
(3) satisfies any additional criteria established by the Small Business
Administration (SBA).
10. Television Broadcasting. The SBA has developed a small business
sized standard for television broadcasting, which consists of all such
firms having $14 million or less in annual receipts. Business concerns
included in this industry are those ``primarily engaged in broadcasting
images together with sound.'' According to Commission staff review of
BIA Publications, Inc. Master Access Television Analyzer Database, as
of May 16, 2003, about 814 of the 1,220 commercial television stations
in the United States had revenues of $12 million or less. We note,
however, that, in assessing whether a business concern qualifies as
small under the above definition, business (control) affiliations must
be included. Our estimate, therefore, likely overstates the number of
small entities that might be affected by our action, because the
revenue figure on which it is based does not include or aggregate
revenues from affiliated companies. There are also 2,127 low power
television stations (LPTV). Given the nature of this service, we will
presume that all LPTV licensees qualify as small entities under the SBA
size standard.
11. Radio Stations. The revised rules and policies potentially will
apply to all AM and commercial FM radio broadcasting licensees and
potential licensees. The SBA defines a radio broadcasting station that
has $7 million or less in annual receipts as a small business. A radio
broadcasting station is an establishment primarily engaged in
broadcasting aural programs by radio to the public. Included in this
industry are commercial, religious, educational, and other radio
stations. Radio broadcasting stations which primarily are engaged in
radio broadcasting and which produce radio program materials are
similarly included. However, radio stations that are separate
establishments and are primarily engaged in producing radio program
material are classified under another NAICS number. According to
Commission staff review of BIA Publications, Inc. Master Access Radio
Analyzer Database on March 31, 2005, about 10,840 (95 percent) of
11,410 commercial radio stations have revenue of $6 million or less. We
note, however, that many radio stations are affiliated with much larger
corporations having much higher revenue. Our estimate, therefore,
likely overstates the number of small entities that might be affected
by our action.
12. Wired Telecommunications Carriers. The 2007 North American
Industry Classification System (NAICS) defines ``Wired
Telecommunications Carriers'' as follows: ``This industry comprises
establishments primarily engaged in operating and/or providing access
to transmission facilities and infrastructure that they own and/or
lease for the transmission of voice, data, text, sound, and video using
wired telecommunications networks. Transmission facilities may be based
on a single technology or a combination of technologies. Establishments
in this industry use the wired telecommunications network facilities
[[Page 12602]]
that they operate to provide a variety of services, such as wired
telephony services, including VoIP services; wired (cable) audio and
video programming distribution; and wired broadband Internet services.
By exception, establishments providing satellite television
distribution services using facilities and infrastructure that they
operate are included in this industry.'' The SBA has developed a small
business size standard for wireline firms within the broad economic
census category, ``Wired Telecommunications Carriers.'' Under this
category, the SBA deems a wireline business to be small if it has 1,500
or fewer employees. Census Bureau data for 2002 show that there were
2,432 firms in this category that operated for the entire year. Of this
total, 2,395 firms had employment of 999 or fewer employees, and 37
firms had employment of 1,000 employees or more. Thus, under this
category and associated small business size standard, the majority of
firms can be considered small.
13. Wired Telecommunications Carriers--Cable and Other Program
Distribution. This category includes, among others, cable operators,
direct broadcast satellite (DBS) services, home satellite dish (HSD)
services, satellite master antenna television (SMATV) systems, and open
video systems (OVS). The data we have available as a basis for
estimating the number of such entities were gathered under a superseded
SBA small business size standard formerly titled Cable and Other
Program Distribution. The former Cable and Other Program Distribution
category is now included in the category of Wired Telecommunications
Carriers, the majority of which, as discussed above, can be considered
small. According to Census Bureau data for 2002, there were a total of
1,191 firms in this previous category that operated for the entire
year. Of this total, 1,087 firms had annual receipts of under $10
million, and 43 firms had receipts of $10 million or more but less than
$25 million. Thus, we believe that a substantial number of entities
included in the former Cable and Other Program Distribution category
may have been categorized as small entities under the now superseded
SBA small business size standard for Cable and Other Program
Distribution. With respect to OVS, the Commission has approved
approximately 120 OVS certifications with some OVS operators now
providing service. Broadband service providers (BSPs) are currently the
only significant holders of OVS certifications or local OVS franchises,
even though OVS is one of four statutorily-recognized options for local
exchange carriers (LECs) to offer video programming services. As of
June 2006, BSPs served approximately 1.4 million subscribers,
representing 1.46 percent of all MVPD households. Among BSPs, however,
those operating under the OVS framework are in the minority. The
Commission does not have financial information regarding the entities
authorized to provide OVS, some of which may not yet be operational. We
thus believe that at least some of the OVS operators may qualify as
small entities.
14. Cable System Operators (Rate Regulation Standard). The
Commission has developed its own small business size standard for cable
system operators, for purposes of rate regulation. Under the
Commission's rules, a ``small cable company'' is one serving 400,000 or
fewer subscribers nationwide. We have estimated that there were 1,065
cable operators who qualified as small cable system operators at the
end of 2005. Since then, some of those companies may have grown to
serve over 400,000 subscribers, and others may have been involved in
transactions that caused them to be combined with other cable
operators. Consequently, the Commission estimates that there are now
fewer than 1,065 small entity cable system operators that may be
affected by the rules and policies proposed herein.
15. Cable System Operators (Telecom Act Standard). The
Communications Act of 1934, as amended, (``Act'') also contains a size
standard for small cable system operators, which is ``a cable operator
that, directly or through an affiliate, serves in the aggregate fewer
than 1 percent of all subscribers in the United States and is not
affiliated with any entity or entities whose gross annual revenues in
the aggregate exceed $250,000,000.'' The Commission has determined that
there are 67,700,000 subscribers in the United States. Therefore, an
operator serving fewer than 677,000 subscribers shall be deemed a small
operator, if its annual revenues, when combined with the total annual
revenues of all its affiliates, do not exceed $250 million in the
aggregate. Based on available data, the Commission estimates that the
number of cable operators serving 677,000 subscribers or fewer, totals
1,065. The Commission neither requests nor collects information on
whether cable system operators are affiliated with entities whose gross
annual revenues exceed $250 million, and therefore are unable, at this
time, to estimate more accurately the number of cable system operators
that would qualify as small cable operators under the size standard
contained in the Act.
16. Broadband Radio Service (FCC Auction Standard). The established
rules apply to Broadband Radio Service (``BRS,'' formerly known as
Multipoint Distribution Systems, or ``MDS'') operated as part of a
wireless cable system. The Commission has defined ``small entity'' for
purposes of the auction of BRS frequencies as an entity that, together
with its affiliates, has average gross annual revenues that are not
more than $40 million for the preceding three calendar years. This
definition of small entity in the context of MDS auctions has been
approved by the SBA. The Commission completed its MDS auction in March
1996 for authorizations in 493 basic trading areas. Of 67 winning
bidders, 61 qualified as small entities. At this time, we estimate that
of the 61 small business MDS auction winners, 48 remain small business
licensees.
17. Wireless Telecommunications Carrier (except satellite). BRS
also includes licensees of stations authorized prior to the auction. As
noted above, the SBA has developed a definition of small entities for
pay television services, Cable and Other Subscription Programming,
which includes all such companies generating $15 million or less in
annual receipts. This definition includes BRS and thus applies to BRS
licensees that did not participate in the MDS auction. Information
available to us indicates that there are approximately 392 incumbent
BRS licensees that do not generate revenue in excess of $11 million
annually. Therefore, we estimate that there are at least 440 (392 pre-
auction plus 48 auction licensees) small BRS providers as defined by
the SBA and the Commission's auction rules which may be affected by the
rules adopted herein. In addition, limited preliminary census data for
2002 indicate that the total number of cable and other program
distribution companies increased approximately 46 percent from 1997 to
2002.
18. Educational Broadband Service. The proposed rules would also
apply to Educational Broadband Service (``EBS,'' formerly known as
Instructional Television Fixed Service or ``ITFS'') facilities operated
as part of a wireless cable system. The SBA definition of small
entities for pay television services, Cable and Other Subscription
Programming also appears to apply to EBS. There are presently 2,032 EBS
licensees. All but 100 of these licenses are held by educational
institutions. Educational institutions are included in the definition
of a small business.
[[Page 12603]]
However, we do not collect annual revenue data for EBS licensees, and
are not able to ascertain how many of the 100 non-educational licensees
would be categorized as small under the SBA definition. Thus, we
tentatively conclude that at least 1,932 are small businesses and may
be affected by the proposed rules.
19. Incumbent Local Exchange Carriers (LECs). We have included
small incumbent LECs in this present IRFA analysis. As noted above, a
``small business'' under the RFA is one that, inter alia, meets the
pertinent small business size standard (e.g., a telephone
communications business having 1,500 or fewer employees), and ``is not
dominant in its field of operation.'' The SBA's Office of Advocacy
contends that, for RFA purposes, small incumbent LECs are not dominant
in their field of operation because any such dominance is not
``national'' in scope. We have therefore included small incumbent local
exchange carriers in this RFA analysis, although we emphasize that this
RFA action has no effect on Commission analyses and determinations in
other, non-RFA contexts. Neither the Commission nor the SBA has
developed a small business size standard specifically for incumbent
local exchange services. The appropriate size standard under SBA rules
is for the category Wired Telecommunications Carriers. Under that size
standard, such a business is small if it has 1,500 or fewer employees.
According to Commission data, 1,303 carriers have reported that they
are engaged in the provision of incumbent local exchange services. Of
these 1,303 carriers, an estimated 1,020 have 1,500 or fewer employees
and 283 have more than 1,500 employees. Consequently, the Commission
estimates that most providers of incumbent local exchange service are
small businesses that may be affected by our proposed rules.
20. Competitive (LECs), Competitive Access Providers (CAPs),
``Shared-Tenant Service Providers,'' and ``Other Local Service
Providers.'' Neither the Commission nor the SBA has developed a small
business size standard specifically for these service providers. The
appropriate size standard under SBA rules is for the category Wired
Telecommunications Carriers. Under that size standard, such a business
is small if it has 1,500 or fewer employees. According to Commission
data, 769 carriers have reported that they are engaged in the provision
of either competitive access provider services or competitive local
exchange carrier services. Of these 769 carriers, an estimated 676 have
1,500 or fewer employees and 93 have more than 1,500 employees. In
addition, 12 carriers have reported that they are ``Shared-Tenant
Service Providers,'' and all 12 are estimated to have 1.500 or fewer
employees. In addition, 39 carriers have reported that they are ``Other
Local Service Providers.'' Of the 39, an estimated 38 have 1,500 or
fewer employees and one has more than 1,500 employees. Consequently,
the Commission estimates that most providers of competitive local
exchange service, competitive access providers, ``Shared-Tenant Service
Providers,'' and ``Other Local Service Providers'' are small entities
that may be affected by our proposed rules.
21. Satellite Telecommunications. The Commission has not developed
a small business size standard specifically for providers of satellite
service. The appropriate size standard under SBA rules is for Satellite
Telecommunications. Under that category, such a business is small if it
has $15 million or less in average annual receipts. Under the category
of Satellite Telecommunications, Census Bureau data for 1997 show that
there were a total of 324 firms that operated for the entire year. Of
this total, 273 firms had annual receipts of under $10 million, and an
additional twenty-four firms had receipts of $10 million to
$24,999,999. Thus, the majority of Satellite Telecommunications firms
can be considered small.
22. All Other Telecommunications. This category includes
``establishments primarily engaged in * * * providing satellite
terminal stations and associated facilities operationally connected
with one or more terrestrial communications systems and capable of
transmitting telecommunications to or receiving telecommunications from
satellite systems.'' Under that category, which is defined by the SBA,
such a business is small if it has $25 million or less in average
annual receipts. Of this total, 424 firms had annual receipts of $5
million to $9,999,999 and an additional 6 firms had annual receipts of
$10 million to $24,999,990. Thus, under this second size standard, the
majority of firms can be considered small.
D. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements
23. This Third R&O requires that EAS Participants record and submit
to the Commission the following test-related diagnostic information for
each alert received from each message source monitored at the time of
the national test: (1) Whether they received the alert message during
the designated test; (2) whether they retransmitted the alert; and (3)
if they were not able to receive and/or transmit the alert, their `best
effort' diagnostic analysis regarding the cause or causes for such
failure. It also requires EAS Participants to provide us with a
description of their station identification and level of designation
(PEP, LP-1, etc.); the date/time of receipt of the EAN message by all
stations; the date/time of PEP station acknowledgement of receipt of
the EAN message to FOC; the date/time of initiation of actual broadcast
of the Presidential message; the date/time of receipt of the EAT
message by all stations; who they were monitoring at the time of the
test, and the make and model number of the EAS equipment that they
utilized. These requirements are intended to advance our public safety
mission and enhance the performance of the EAS while reducing
regulatory burdens wherever possible.
E. Steps Taken To Minimize the Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
24. The RFA requires an agency to describe any significant
alternatives that it has considered in developing its approach, which
may include the following four alternatives (among others): ``(1) the
establishment of differing compliance or reporting requirements or
timetables that take into account the resources available to small
entities; (2) the clarification, consolidation, or simplification of
compliance and reporting requirements under the rule for such small
entities; (3) the use of performance rather than design standards; and
(4) an exemption from coverage of the rule, or any part thereof, for
such small entities.''
25. The rules are designed to minimally impact all EAS
participants, including small entities, while at the same time
protecting the lives and property of all Americans, which confers a
direct benefit on small entities. The Second FNPRM sought comment on
how the Commission may better protect the lives and property of
Americans. In commenting on this goal, commenters were invited to
propose steps that the Commission may take to further minimize any
significant economic impact on small entities. When considering
proposals made by other parties, commenters were invited to propose
significant alternatives that serve the goals of these proposals.
26. No commenters disputed the proposed requirement that all EAS
Participants to participate in national EAS tests as scheduled by the
Commission in consultation with
[[Page 12604]]
FEMA. While some commenters opposed a requirement that the first
national EAS test use the EAN, the live event code for nationwide
Presidential alerts, there is at present no other way to test the
entire system for propagation of a national-level EAS alert. No
commenter opposed the requirement that the national test replace the
monthly and weekly EAS tests in the month and week in which it is held
and this requirement in fact serves to minimize burdens on all
participants be relieving them of certain testing obligations. While
some commenters sought more than two months notice, the Order requires
the Bureau to provide at least two months' public notice prior to any
national test of the EAS. The impact on small entities will be a factor
considered by the Bureau in making its determination of notice period.
27. The new rule requires EAS Participants to submit test-related
data to the Bureau within 45 days following a national EAS test. This
was an extension of the 30 days initially proposed in the Second FNPRM
and will minimize the burden on all participants. A number of
commenters requested the ability to submit the required test data
electronically and this Third R&O provides for this alternative method
of data submission, also lessening the economic impact on all entities.
The requirement that test data received from EAS Participants be
treated as presumptively confidential, but allowing test data to be
shared on a confidential basis with other Federal agencies and State
governmental emergency management agencies that have confidentiality
protection at least equal to that provided by the Freedom of
Information Act (FOIA), has no economic impact on small entities. In
delegating authority to the Bureau to determine, in consultation with
FEMA and with other EAS stakeholders, as appropriate, various
administrative procedures for national tests, including test codes to
be used and pre-test outreach, the Commission has instructed the Bureau
to factor in the needs of all stakeholders, including small business
entities.
28. Report to Congress: The Commission will send a copy of the
Third R&O including this FRFA, in a report to be sent to Congress and
the Government Accountability Office pursuant to the Congressional
Review Act. In addition, the Commission will send a copy of the Third
R&O, including this FRFA, to the Chief Counsel for Advocacy of the SBA.
A copy of the Third R&O and FRFA (or summaries thereof) will also be
published in the Federal Register.
III. Ordering Clauses
29. Accordingly, it is ordered that pursuant to sections 1, 2,
4(i), 4(o), 301, 303(r), 303(v), 307, 309, 335, 403, 624(g),706 and 715
of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152,
154(i) and (o), 301, 303(r), 303(v), 307, 309, 335, 403, 544(g), 606,
and 615, this Third Report and Order is adopted.
30. It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this Third Report and Order, including the Final Regulatory
Flexibility Analysis, to the Chief Counsel for Advocacy of the Small
Business Administration.
List of Subjects in 47 CFR Part 11
Radio, Television, Emergency alerting.
Federal Communications Commission.
Bulah P. Wheeler,
Deputy Manager.
Final Rule
For the reasons discussed in the preamble, the Federal
Communications Commission amends 47 CFR part 11 as follows:
PART 11--EMERGENCY ALERT SYSTEM (EAS)
0
1. The authority citation for part 11 continues to read as follows:
Authority: 47 U.S.C. 151, 154(i) and (o), 303(r), 544(g) and
606.
0
2. Revise Sec. 11.61(a)(3) to read as follows:
Sec. 11.61 Tests of EAS procedures.
(a) * * *
(3) National Tests. (i) All EAS Participants shall participate in
national tests as scheduled by the Commission in consultation with the
Federal Emergency Management Agency (FEMA). Such tests will consist of
the delivery by FEMA to PEP/NP stations of a coded EAS message,
including EAS header codes, Attention Signal, Test Script, and EOM
code. All other EAS Participants will then be required to relay that
EAS message. The coded message shall utilize EAS test codes as
designated by the Commission's rules.
(ii) A national test shall replace the required weekly and monthly
tests for all EAS Participants, as set forth in paragraphs (a)(1) and
(a)(2) of this section, in the week and month in which it occurs.
(iii) Notice shall be provided to EAS Participants by the
Commission at least two months prior to the conduct of any such
national test.
(iv) Test results as required by the Commission shall be logged by
all EAS Participants and shall be provided to the Commission's Public
Safety and Homeland Security Bureau within forty five (45) days
following the test.
* * * * *
[FR Doc. 2011-5222 Filed 3-7-11; 8:45 am]
BILLING CODE 6712-01-P