[Federal Register Volume 76, Number 222 (Thursday, November 17, 2011)]
[Proposed Rules]
[Pages 71276-71280]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-29217]
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DEPARTMENT OF AGRICULTURE
Federal Crop Insurance Corporation
7 CFR Part 457
[Docket No. FCIC-11-0008]
RIN 0563-AC35
Common Crop Insurance Regulations; Pecan Revenue Crop Insurance
Provisions
AGENCY: Federal Crop Insurance Corporation, USDA.
ACTION: Proposed rule.
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SUMMARY: The Federal Crop Insurance Corporation (FCIC) proposes to
amend the Common Crop Insurance Regulations, Pecan Revenue Crop
Insurance Provisions. The intended effect of this action is to provide
policy changes, to clarify existing policy provisions to better meet
the needs of insured producers, and to reduce vulnerability to program
fraud, waste, and abuse. The proposed changes will be effective for the
2013 and succeeding crop years.
DATES: Written comments and opinions on this proposed rule will be
accepted until close of business January 17, 2012 and will be
considered when the rule is to be made final.
ADDRESSES: FCIC prefers that comments be submitted electronically
through the Federal eRulemaking Portal. You may submit comments,
identified by Docket ID No. FCIC-11-0008, by any of the following
methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Director, Product Administration and Standards
Division, Risk Management Agency, United States Department of
Agriculture, P.O. Box 419205, Kansas City, MO 64133-6205.
All comments received, including those received by mail, will be posted
without change to http://www.regulations.gov, including any personal
information provided, and can be accessed by the public. All comments
must include the agency name and docket number or Regulatory
Information Number (RIN) for this rule. For detailed instructions on
submitting comments and additional information, see http://www.regulations.gov. If you are submitting comments electronically
through the Federal eRulemaking Portal and want to attach a document,
we ask that it be in a text-based format. If you want to attach a
document that is a scanned Adobe PDF file, it must be scanned as text
and not as an image, thus allowing FCIC to search and copy certain
portions of your submissions. For questions regarding attaching a
document that is a scanned Adobe PDF file, please contact the RMA Web
Content Team at (816) 823-4694 or by email at
rmaweb.content@rma.usda.gov.
Privacy Act: Anyone is able to search the electronic form of all
comments received for any dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review the
complete User Notice and Privacy Notice for Regulations.gov at http://www.regulations.gov/#!privacyNotice.
FOR FURTHER INFORMATION CONTACT: Chief, Policy Administration Branch,
Product Administration and Standards Division, Risk Management Agency,
United States Department of Agriculture, Beacon Facility, Stop 0812,
Room 421, P.O. Box 419205, Kansas City, MO 64141-6205, telephone (816)
926-7730.
SUPPLEMENTARY INFORMATION:
Executive Order 12866
This rule has been determined to be non-significant for the
purposes of Executive Order 12866 and, therefore, it has not been
reviewed by the OMB.
Paperwork Reduction Act of 1995
Pursuant to the provisions of the Paperwork Reduction Act of 1995
(44 U.S.C. chapter 35), the collections of information in this rule
have been approved by OMB under control number 0563-0053.
[[Page 71277]]
E-Government Act Compliance
FCIC is committed to complying with the E-Government Act of 2002,
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.
Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA)
establishes requirements for Federal agencies to assess the effects of
their regulatory actions on State, local, and Tribal governments and
the private sector. This rule contains no Federal mandates (under the
regulatory provisions of title II of the UMRA) for State, local, and
Tribal governments or the private sector. Therefore, this rule is not
subject to the requirements of sections 202 and 205 of UMRA.
Executive Order 13132
It has been determined under section 1(a) of Executive Order 13132,
Federalism, that this rule does not have sufficient implications to
warrant consultation with the States. The provisions contained in this
rule will not have a substantial direct effect on States, or on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government.
Executive Order 13175
This rule has been reviewed in accordance with the requirements of
Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments. The review reveals that this regulation will not have
substantial and direct effects on Tribal governments and will not have
significant Tribal implications.
Regulatory Flexibility Act
FCIC certifies that this regulation will not have a significant
economic impact on a substantial number of small entities. Program
requirements for the Federal crop insurance program are the same for
all producers regardless of the size of their farming operation. For
instance, all producers are required to submit an application and
acreage report to establish their insurance guarantees and compute
premium amounts, and all producers are required to submit a notice of
loss and production information to determine the amount of an indemnity
payment in the event of an insured cause of crop loss. Whether a
producer has 10 acres or 1000 acres, there is no difference in the kind
of information collected. To ensure crop insurance is available to
small entities, the Federal Crop Insurance Act authorizes FCIC to waive
collection of administrative fees from limited resource farmers. FCIC
believes this waiver helps to ensure that small entities are given the
same opportunities as large entities to manage their risks through the
use of crop insurance. A Regulatory Flexibility Analysis has not been
prepared since this regulation does not have an impact on small
entities, and, therefore, this regulation is exempt from the provisions
of the Regulatory Flexibility Act (5 U.S.C. 605).
Federal Assistance Program
This program is listed in the Catalog of Federal Domestic
Assistance under No. 10.450.
Executive Order 12372
This program is not subject to the provisions of Executive Order
12372, which require intergovernmental consultation with State and
local officials. See the Notice related to 7 CFR part 3015, subpart V,
published at 48 FR 29115, June 24, 1983.
Executive Order 12988
This proposed rule has been reviewed in accordance with Executive
Order 12988 on civil justice reform. The provisions of this rule will
not have a retroactive effect. The provisions of this rule will preempt
State and local laws to the extent such State and local laws are
inconsistent herewith. With respect to any direct action taken by FCIC
or to require the insurance provider to take specific action under the
terms of the crop insurance policy, the administrative appeal
provisions published at 7 CFR part 11 or 7 CFR part 400, subpart J for
the informal administrative review process of good farming practices as
applicable, must be exhausted before any action against FCIC for
judicial review may be brought.
Environmental Evaluation
This action is not expected to have a significant economic impact
on the quality of the human environment, health, or safety. Therefore,
neither an Environmental Assessment nor an Environmental Impact
Statement is needed.
Background
FCIC proposes to amend the Common Crop Insurance Regulations (7 CFR
part 457) by revising Sec. 457.167 Pecan Revenue Crop Insurance
Provisions, to be effective for the 2013 and succeeding crop years. The
proposed changes are as follows:
1. Section 1--FCIC proposes to revise the definition of ``average
gross sales per acre'' by removing specific crop years from the
example. This change is being proposed because the crop years listed in
the example are outdated. Removing the specific crop years does not
change the meaning of the example. This proposed change will alleviate
the need to change the crop years in the example each time the Pecan
Revenue Crop Insurance Provisions are revised.
FCIC proposes to revise the definition of ``approved average
revenue per acre'' by changing the maximum number of years of average
gross sales used to calculate approved average revenue per acre from
ten to six years. This change is being proposed based on
recommendations from a FCIC contracted study that found that a shorter
base period works as well or better for predicting actual yields for
some perennial crops. The shorter base period will be more responsive
to market trends and changes in the productive capacity of the trees.
FCIC proposes to remove the references to ``lowest available dollar
span'' from the definition of ``approved average revenue per acre'' and
replace it with the term ``T-revenue.'' The ``T-revenue'' will be used
in place of the ``lowest available dollar span'' when sufficient
records are not provided. FCIC will develop a ``T-revenue'' that will
represent a value similar to the current ``lowest available dollar
span.'' This change is being proposed to facilitate the implementation
of a continuous rating methodology to be consistent with other
policies. Under the current rating methodology a rate class is assigned
based on which ``dollar span'' the insured's average approved revenue
falls into. Removing references to ``dollar spans'' and developing a
``T-revenue'' is necessary in order to migrate to the continuous rating
methodology because under the new continuous rating methodology
``dollar spans'' will no longer be used.
FCIC proposes to remove the definition of ``enterprise unit'' from
the current Pecan Revenue Crop Insurance Provisions and use the
definition of ``enterprise unit'' contained in the Common Crop
Insurance Policy Basic Provisions. The Basic Provisions contain
additional requirements to qualify for an ``enterprise unit'' that are
not contained in the current definition of ``enterprise unit'' in the
Pecan Revenue Crop Insurance Provisions. This change will make the unit
structures under the Pecan Revenue Crop Insurance Provisions consistent
[[Page 71278]]
with other crop programs administered by FCIC.
FCIC proposes to revise the definition of ``market price'' by:
a. Removing subparagraph (2) of the definition that references the
actual price received. With the proposed revision to section 13(d)(2),
the price received will be used to value any production that is sold
unless the price received is not verifiable by sales receipts or is
determined to be inappropriate. Since market price will only be used to
value unsold production or sold production in which the price received
is inappropriate or unverifiable, it is not necessary to list the price
received in the definition of market price;
b. Revising the introductory paragraph by removing the phrase ``the
greater of'' and redesignating subparagraph (3) as subparagraph (1) to
make Agricultural Marketing Service (AMS) prices the primary source for
determining market price. FCIC proposes to add language to clarify the
AMS price used must be from the nearest location and must be of similar
quality, quantity and variety of in-shell pecans. FCIC proposes adding
the phrase ``unless otherwise provided in the Special Provisions'' to
the end of the first sentence of the subparagraph that references AMS
prices to allow flexibility to alter this section should AMS change or
discontinue their current pecan reports; and
c. Redesignating subparagraph (1) as subparagraph (2) and adding
the phrase ``if AMS prices are not published for the week'' to the
beginning of newly redesignated subparagraph (2). This proposed change
will make this provision an alternative method of determining market
price if for any reason AMS does not publish prices for the week. This
change is being proposed because using the AMS price will provide a
more reliable and consistent price to value appraised production.
FCIC proposes to remove the definition of ``set out'' because all
other references to this term within the policy are proposed to be
removed.
FCIC proposes to add the definition of ``transitional revenue (T-
revenue)'' that will be used in place of the ``lowest available dollar
span.'' The ``T-revenue'' will be an amount determined by FCIC and
provided in the actuarial documents. FCIC plans to establish a ``T-
revenue'' that is comparable to the current ``lowest available dollar
span.'' The ``T-revenue'' may be adjusted as more revenue data is
collected.
2. Section 2--FCIC proposes to revise section 2 to state that
enterprise units are defined in accordance with the Basic Provisions
and are available only if allowed by the Special Provisions. This
change is necessary to make the Pecan Revenue Crop Insurance Provisions
consistent with the Common Crop Insurance Policy Basic Provisions. FCIC
intends to allow enterprise units through the Special Provisions.
FCIC proposes to revise section 2 to allow basic units to be
divided into optional units if optional units are located on non-
contiguous land, separate records of production are provided for at
least the most recent consecutive two crop years that verify trees in
the optional unit meet the minimum production requirement, and optional
units are selected by the acreage reporting date for the first year of
the two year coverage module. Optional units by non-contiguous land are
being proposed at the request of producers. The proposed requirements
to qualify for optional units are similar to those that are contained
in the Basic Provisions, but due to the ``two-year coverage module,''
the requirements have been modified to be applicable to the Pecan
Revenue Crop Insurance Provisions. Premium rates will be adjusted to
compensate for any additional risk associated with optional units.
3. Section 3--FCIC proposes to revise section 3 by removing all
references to the ``lowest available dollar span'' and replacing it
with the term ``T-revenue.''
FCIC proposes to revise section 3(d)(1) by removing the provision
that contains a factor used to reduce your average gross sales for
acres that are sequentially thinned. The provision is being proposed to
be removed because it is ambiguous and discourages good management
practices. Language in sections 3(d)(3) and 6(b) provides consequences
for sequential thinning when the thinning is expected to reduce gross
sales below the approved average revenue.
FCIC proposes to add a new section 3(d)(1) that states if you fail
to provide acceptable records for optional units, those units will be
combined into basic units and your amount of insurance per acre will be
recalculated for the two-year coverage module. This provision provides
the consequence for failure to provide acceptable records for optional
units which is consistent with other crop programs.
4. Section 4--FCIC proposes to amend section 4(b) by removing RMA's
Web site address because this is defined in the Basic Provisions.
FCIC proposes to amend section 4(d) by adding the statement, ``if
available from us, you may elect to receive these documents and changes
electronically.'' This statement is being proposed to provide
consistency with the Basic Provisions. Section 4 of the Basic
Provisions provides that producers may elect to receive documents and
changes electronically. However, the introductory paragraph of section
4 of the Pecan Revenue Crop Insurance Provisions contains the phrase,
``in lieu of the provisions contained in section 4 of the Basic
Provisions.'' Therefore, in order to provide consistency with the Basic
Provisions it is necessary to state that, ``if available from us, you
may elect to receive these documents and changes electronically.''
5. Section 6--FCIC proposes to amend section 6 by removing the
percentage associated with the reporting requirements for sequentially
thinning because the threshold for sequentially thinning is proposed to
be removed from section 3.
6. Section 8--FCIC proposes to amend section 8(d) by removing the
minimum age requirements and adding a minimum level of production that
must be obtained to qualify for insurance unless inspected and allowed
by written agreement. This provision will protect program integrity
because older trees that do not meet the minimum production requirement
will no longer be insurable. Furthermore, this change will allow
improved varieties that may come into production sooner to be insured
regardless of age as long as they meet the minimum production
requirement.
FCIC proposes to add a new section 8(e) to allow certain varieties
or groups of varieties to be designated as uninsurable through the
Special Provisions. This change is being proposed to address varieties
that may be found to be unproductive or incompatible pollinators.
7. Section 13--FCIC proposes to amend section 13(b) by adding a
statement indicating that if the insured is unable to provide separate
acceptable records for any optional units, we will combine all units
for which such records were not provided. FCIC also proposes adding a
statement to this section stating that for any basic unit, we will
allocate commingled production or revenue to each basic unit in
proportion to our liability on the harvested acreage for each unit.
This is standard language contained in most policies that allow
optional units. These provisions are being proposed to clarify the
consequences of failure to provide separate acceptable records.
FCIC proposes to revise section 13(d)(2)(i) by changing the basis
by which price is determined for sold production from market price to
price
[[Page 71279]]
received. This change is being proposed to address concerns that the
indemnity is not calculated on the same basis by which the guarantee is
set. The guarantee is based on the price received for sold production,
but indemnities are determined using the market price. FCIC also
proposes adding a parenthetical stating that if the price received is
not verifiable by sales receipts or is determined to be inappropriate
for the quality of pecans sold, the market price will be used. FCIC
intends to provide additional guidance in the 2013 Pecan Revenue Loss
Adjustment Standards Handbook as to when a price should be considered
inappropriate. The guidance will create a minimum threshold that the
price received must meet and will be based on a percentage of the AMS
price.
FCIC proposes to revise the example at the end of section 13 by
replacing dates with generic numbers for the crop year. FCIC also
proposes to revise the example by changing the historical average
pounds per acre and average gross sales per acre to reflect an
alternate bearing pattern. FCIC further proposes to revise the example
by adding insured causes of loss to the explanation of indemnity
calculation to illustrate that claims are only paid if losses are the
result of an insured cause. FCIC also proposes to change the example to
illustrate that the price received will be used to value sold
production.
List of Subjects in 7 CFR Part 457
Crop insurance, Pecan revenue, Reporting and recordkeeping
requirements.
Proposed Rule
Accordingly, as set forth in the preamble, the Federal Crop
Insurance Corporation proposes to amend 7 CFR part 457 effective for
the 2013 and succeeding crop years as follows:
PART 457--COMMON CROP INSURANCE REGULATIONS
1. The authority citation for 7 CFR part 457 continues to read as
follows:
Authority: 7 U.S.C. 1506(l), 1506(o).
2. Amend Sec. 457.167 as follows:
a. Amend the introductory text by removing ``2005'' and adding
``2013'' in its place;
b. Add definition in section 1 for ``transitional revenue (T-
revenue)'';
c. Revise the definitions in section 1 of ``average gross sales per
acre,'' ``approved average revenue per acre,'' and ``market price'';
d. Amend section 1 by removing the definitions of ``enterprise
unit'' and ``set out'';
e. Revise section 2(a)(1);
f. Amend section 2(a)(2) by removing the period at the end of the
sentence and adding the term ``; or'' in its place;
g. Add a new section 2(a)(3);
h. Amend the introductory text of section 3 by adding a comma
following the phrase ``In lieu of section 3 of the Basic Provisions'';
i. Revise section 3(d)(1);
j. Amend section 3(d)(2) by removing the phrase ``lowest available
dollar span amount provided in the actuarial documents'' and adding the
term ``T-revenue'' in its place;
k. Amend section 3(f)(1) by removing the phrase ``lowest available
dollar span provided in the actuarial table'' and adding the term ``T-
revenue'' in its place;
l. Amend section 3(h) by adding a hyphen between the words ``high''
and ``risk'' in all four instances they appear;
m. Revise section 4(b);
n. Amend section 4(d) by adding the sentence, ``If available from
us, you may elect to receive these documents and changes
electronically.'' following the sentence, ``If changes are made that
will be effective for a subsequent two-year coverage module, such
copies will be provided not later than 30 days prior to the
cancellation date.'';
o. Revise sections 6(a)(1) and 6(b);
p. Revise section 8(d);
q. Amend section 8 by redesignating paragraphs (e) and (f) as (f)
and (g) respectively, and adding a new paragraph (e);
r. Revise section 13(b);
s. Revise section 13(d)(2)(i);
t. Revise the example at the end of section 13; and
u. Amend section 16 by removing the space between ``Not'' and
``withstanding.''
The revised and added text reads as follows:
Sec. 457.167 Pecan revenue crop insurance provisions.
The pecan revenue crop insurance provisions for the 2013 and
succeeding crop years are as follows:
* * * * *
1. Definitions
* * * * *
Average gross sales per acre. Your gross sales of pecans for a crop
year divided by your net acres of pecans grown during that crop year.
For example, if for the crop year, your gross sales were $100,000 and
your net acres of pecans were 100, then your average gross sales per
acre for the crop year would be $1,000.
Approved average revenue per acre. The total of your average gross
sales per acre based on at least the most recent consecutive four years
of sales records building to six years and dividing that result by the
number of years of average gross sales per acre. If you provide more
than four years of sales records, they must be the most recent
consecutive six years of sales records. If you do not provide at least
four years of gross sales records, your approved average revenue will
be:
(1) The average of the two most recent consecutive years of your
gross sales per acre and two years of the T-revenue; or
(2) If you do not provide any gross sales records, the T-revenue.
* * * * *
Market price. The market price is:
(1) The average of the AMS prices for the nearest location for
similar quality, quantity, and variety of in-shell pecans published
during the week you sell any of your pecans if the price received is
determined to be inappropriate, you harvest your pecans if they are not
sold, or your pecans are appraised if you are not harvesting them,
unless otherwise provided in the Special Provisions. For example, if
you harvest production on November 14 but do not sell the production,
the average of the AMS prices for the week containing November 14 will
be used to determine the market price for the production harvested on
November 14; or
(2) If AMS prices are not published for the week, the average price
per pound for in-shell pecans of the same variety or varieties insured
offered by buyers on the day you sell any of your pecans if the price
received is determined to be inappropriate, you harvest any of your
pecans if they are not sold, or your pecans are appraised if you are
not harvesting them, in the area in which you normally market the
pecans (If buyers are not available in your immediate area, we will use
the average in-shell price per pound offered by buyers nearest to your
area).
* * * * *
Transitional revenue (T-revenue). A value determined by FCIC and
published in the actuarial documents.
* * * * *
2. Unit Division
(a) * * *
(1) An enterprise unit as defined in section 1 of the Basic
Provisions, if allowed by the Special Provisions;
(2) * * *
(3) In lieu of the requirements contained in section 34(b) of the
Basic Provisions, basic units may be divided into optional units if,
for each optional unit, the following criteria are met:
[[Page 71280]]
(i) Each optional unit you select must be located on non-contiguous
land;
(ii) Separate records of production are provided for at least the
most recent consecutive two crop years. The records will be used to
verify that trees from each unit meet the minimum production
requirement contained in section 8(d) and to establish the approved
average revenue per acre for the optional units selected; and
(iii) Optional units are selected and identified on the acreage
report by the acreage reporting date of the first year of the two-year
coverage module (Units will be determined when the acreage is reported,
but may be adjusted or combined to reflect the actual unit structure
when adjusting a loss. No further unit division may be made after the
acreage reporting date for any reason).
* * * * *
3. Insurance Guarantees and Coverage Levels for Determining Indemnities
* * * * *
(d) * * *
(1) You fail to provide acceptable records required for optional
units, which will result in optional units being combined into basic
units at the time of discovery and your amount of insurance per acre
will be recalculated for the two-year coverage module.
* * * * *
4. Contract Changes
* * * * *
(b) Any changes in policy provisions, amounts of insurance, premium
rates, and program dates (except as allowed herein or as specified in
section 3) can be viewed on RMA's Web site not later than the contract
change date contained in these Crop Provisions. We may revise this
information after the contract change date to correct clerical errors.
* * * * *
6. Report of Acreage
(a) * * *
(1) Any damage to trees, removal of trees, change in practices,
sequential thinning or any other action that may reduce the gross sales
below the approved average revenue upon which the amount of insurance
per acre is based and the number of affected acres;
* * * * *
(b) We will reduce the amount of your insurable acreage based on
our estimate of the removal of a contiguous block of trees or damage to
trees of the insured crop. We will reduce your amount of insurance per
acre based on our estimate of the expected reduction in gross sales
from a change in practice or sequential thinning.
* * * * *
8. Insured Crop
* * * * *
(d) That are grown on trees that have produced at least 600 pounds
of pecans in-shell per acre (or an amount provided in the Special
Provisions) in at least one of the previous four crop years, unless we
inspect and allow insurance by written agreement. This amount of
production must be achieved subsequent to any top work that occurs
within a unit;
(e) That are grown on varieties or a grouping of varieties within a
unit that are not designated as uninsurable in the Special Provisions;
* * * * *
13. Settlement of Claim
* * * * *
(b) We will determine your loss on a unit basis. In the event you
are unable to provide separate acceptable records for any:
(1) Optional units, we will combine all optional units for which
such records were not provided; or
(2) Basic unit, we will allocate commingled production or revenue
to each basic unit in proportion to our liability on the harvested
acreage for each unit.
* * * * *
(d) * * *
(2) * * *
(i) The dollar amount obtained by multiplying the number of pounds
of pecans sold by the price received for each day the pecans were sold
(if the price received is not verifiable by sales receipts or is
determined to be inappropriate by us for the quality of pecans sold the
market price will be used);
* * * * *
Pecan Revenue Example
----------------------------------------------------------------------------------------------------------------
Average pounds Average gross
Year Acres per acre sales per acre
----------------------------------------------------------------------------------------------------------------
4......................................................... 100 750 $1,050
3......................................................... 100 625 625
2......................................................... 100 1250 750
1......................................................... 100 200 250
-----------------------------------------------------
Total Average Gross Sales Per Acre =.................. ................ ................ 2,675
----------------------------------------------------------------------------------------------------------------
The approved average revenue equals the total average gross sales
per acre divided by the number of years ($2,675 / 4 = $669).
The amount of insurance per acre equals the approved average
revenue multiplied by the coverage level percent ($669 x .65 = $435).
Assume pecan trees in the unit experienced damage to blooms due to
a late freeze causing low production. You produced, harvested, and sold
300 pounds per acre of pecans from 70 acres and received an actual
price of $0.75 per pound. On the other 30 acres, the pecans suffered
damage due to drought. You elected not to harvest the other 30 acres of
pecans. The 30 acres were appraised at 100 pounds per acre and on the
day of the appraisal the average AMS price was $0.65. The total dollar
value of production to count is (300 pounds of pecans x $0.75 x 70 net
acres) + (100 pounds x $0.65 x 30 net acres) = $15,750 + $1,950 =
$17,700.
The indemnity would be:
The amount of insurance per acre multiplied by the net acres minus
the dollar value of the total production to count equals the dollar
amount of indemnity ($435 x 100 = $43,500.00 - $17,700.00 = $25,800).
* * * * *
Signed in Washington, DC, on November 4, 2011.
William J. Murphy,
Manager, Federal Crop Insurance Corporation.
[FR Doc. 2011-29217 Filed 11-16-11; 8:45 am]
BILLING CODE 3410-08-P