Incorporation by Reference; North American Standard Out-of-Service Criteria; Hazardous Materials Safety Permits |
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Raymond P. Martinez
Federal Motor Carrier Safety Administration
8 July 2019
[Federal Register Volume 84, Number 130 (Monday, July 8, 2019)]
[Rules and Regulations]
[Pages 32323-32326]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-14226]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Part 385
[Docket No. FMCSA-2018-0165]
RIN 2126-AC01
Incorporation by Reference; North American Standard Out-of-
Service Criteria; Hazardous Materials Safety Permits
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Final rule.
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SUMMARY: FMCSA amends its Hazardous Materials Safety Permit regulations
to incorporate by reference the April 1, 2018, edition of the
Commercial Vehicle Safety Alliance's (CVSA) ``North American Standard
Out-of-Service Criteria and Level VI Inspection Procedures and Out-of-
Service Criteria for Commercial Highway Vehicles Transporting
Transuranics and Highway Route Controlled Quantities of Radioactive
Materials as defined in 49 CFR part 173.403.'' The Out-of-Service
Criteria provide uniform enforcement tolerances for roadside
inspections to enforcement personnel nationwide, including FMCSA's
State partners.
DATES: This final rule is effective July 8, 2019. The incorporation by
reference of certain publications listed in the regulations is approved
by the Director of the Federal Register in accordance with 5 U.S.C.
552(a) and 1 CFR part 51 as of July 8, 2019.
Petitions for Reconsideration of this final rule must be submitted
to the FMCSA Administrator no later than August 7, 2019.
ADDRESSES: Petitions for reconsideration must be written in English and
mailed or delivered to: Administrator, Federal Motor Carrier Safety
Administration, 1200 New Jersey Avenue SE, Washington, DC 20590-0001.
FOR FURTHER INFORMATION CONTACT: Mr. Michael Huntley, Chief, Vehicle
and Roadside Operations Division, Federal Motor Carrier Safety
Administration, 1200 New Jersey Avenue SE, Washington, DC 20590-0001 or
by telephone at 202-366-9209. If you have questions on viewing or
submitting material to the docket, contact Docket Services, telephone
(202) 366-9826.
SUPPLEMENTARY INFORMATION:
I. Rulemaking Documents
A. Availability of Rulemaking Documents
For access to docket FMCSA-2018-0165 to read background documents
and comments received, go to http://www.regulations.gov at any time, or
to Docket Services at U.S. Department of Transportation, Room W12-140,
1200 New Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays.
B. Privacy Act
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
public to better inform its rulemaking process. DOT posts these
comments, without edit, including any personal information the
commenter provides, to www.regulations.gov, as described in the system
of records notice (DOT/ALL-14 FDMS), which can be reviewed at
www.dot.gov/privacy.
II. Executive Summary
This rulemaking updates an incorporation by reference found at 49
CFR 385.4 and referenced at 49 CFR 385.415(b). Section 385.4(b)
currently references the April 1, 2016, edition of CVSA's ``North
American Standard Out-of-Service Criteria and Level VI Inspection
Procedures and Out-of-Service Criteria for Commercial Highway Vehicles
Transporting Transuranics and Highway Route Controlled Quantities of
Radioactive Materials as defined in 49 CFR part 173.403.'' The Out-of-
Service Criteria, while not regulations, provide uniform enforcement
tolerances for roadside inspections to enforcement personnel
nationwide, including FMCSA's State partners. In this final rule, FMCSA
incorporates by reference the April 1, 2018, edition, which includes
changes adopted in the April 1, 2017 edition.
III. Legal Basis for the Rulemaking
Congress has enacted several statutory provisions to ensure the
safe transportation of hazardous materials in interstate commerce.
Specifically, in provisions codified at 49 U.S.C. 5105(d), relating to
inspections of motor vehicles carrying certain hazardous material, and
49 U.S.C. 5109, relating to motor carrier safety permits, the Secretary
of Transportation is required to promulgate regulations as part of a
comprehensive safety program on hazardous materials safety permits. The
FMCSA Administrator has been delegated authority under 49 CFR
1.87(d)(2) to carry out the rulemaking functions vested in the
Secretary of Transportation. Consistent with that authority, FMCSA has
promulgated regulations to address the congressional mandate on
hazardous materials. Those regulations on hazardous materials are the
underlying provisions to which the material incorporated by reference
discussed in this final rule is applicable.
IV. Background
In 1986, the U.S. Department of Energy (DOE) and CVSA entered into
a cooperative agreement to develop a higher level of inspection
procedures, out-of-service conditions and/or criteria, an inspection
decal, and a training and certification program for inspectors to
conduct inspections on shipments of transuranic waste and highway route
controlled quantities of radioactive material. CVSA developed the North
American Standard Level VI Inspection Program for Transuranic Waste and
Highway Route Controlled Quantities of Radioactive Material. This
inspection program for select radiological shipments includes
inspection procedures, enhancements to the North American Standard
Level I Inspection, radiological surveys, CVSA Level VI decal
requirements, and the ``North American Standard Out-of-Service Criteria
and Level VI Inspection Procedures and Out-of-Service Criteria for
Commercial Highway Vehicles Transporting Transuranics and Highway Route
Controlled Quantities of Radioactive Materials as defined in 49 CFR
part 173.403.'' As of January 1, 2005, all vehicles and carriers
transporting highway route controlled
[[Page 32324]]
quantities of radioactive material are regulated by the U.S. Department
of Transportation. All highway route controlled quantities of
radioactive material must pass the North American Standard Level VI
Inspection prior to the shipment being allowed to travel in the U.S.
All highway route controlled quantities of radioactive material
shipments entering the U.S. must also pass the North American Standard
Level VI Inspection either at the shipment's point of origin or when
the shipment enters the U.S.
Section 385.415 of title 49, Code of Federal Regulations,
prescribes operational requirements for motor carriers transporting
hazardous materials for which a hazardous materials safety permit is
required. Section 385.415(b)(1) requires that motor carriers must
ensure a pre-trip inspection is performed on each motor vehicle to be
used to transport a highway route controlled quantity of a Class 7
(radioactive) material, in accordance with the requirements of CVSA's
``North American Standard Out-of-Service Criteria and Level VI
Inspection Procedures and Out-of-Service Criteria for Commercial
Highway Vehicles Transporting Transuranics and Highway Route Controlled
Quantities of Radioactive Materials as defined in 49 CFR part
173.403.'' It is necessary to update the reference to ensure that motor
carriers and enforcement officials have convenient access to the
correctly identified inspection criteria that are referenced in the
rules. Copies of the reference are available to the public from CVSA
either through its website, or by contacting CVSA at the address, and
phone number provided, and from additional sources of information
associated with future incorporations by reference.
According to 2012-2017 data from FMCSA's Motor Carrier Management
Information System (MCMIS), approximately 3.5 million Level I-Level VI
roadside inspections were performed annually. Nearly 97 percent of
these were Level I,\1\ Level II,\2\ and Level III \3\ inspections.
During the same period, an average of 842 Level VI inspections were
performed annually, comprising only 0.024 percent of all roadside
inspections. On average, out-of-service violations were cited in only
10 Level VI inspections annually (1.19 percent), whereas on average,
out-of-service violations were cited in 269,024 Level I inspections
(25.3 percent), 266,122 Level II inspections (22.2 percent), and 66,489
Level III inspections (6.2 percent) annually. Based on these
statistics, CMVs transporting transuranics and highway route controlled
quantities of radioactive materials are clearly among the best
maintained and safest CMVs on the highways today, due largely to the
enhanced oversight and inspection of these vehicles because of the
sensitive nature of the cargo being transported.
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\1\ Level I is a 37-step inspection procedure that involves
examination of the motor carrier's and driver's credentials, record
of duty status, the mechanical condition of the vehicle, and any
hazardous materials/dangerous goods that may be present.
\2\ Level II is a driver and walk-around vehicle inspection,
involving the inspection of items that can be checked without
physically getting under the vehicle.
\3\ Level III is a driver-only inspection that includes
examination of the driver's credentials and documents.
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V. Notice of Proposed Rulemaking
FMCSA published a notice of proposed rulemaking (NPRM) on December
31, 2018 (83 FR 67705). Whereas the incorporation by reference found at
49 CFR 385.4 and referenced at 49 CFR 385.415(b) references the April
1, 2016, edition of CVSA's ``North American Standard Out-of-Service
Criteria and Level VI Inspection Procedures and Out-of-Service Criteria
for Commercial Highway Vehicles Transporting Transuranics and Highway
Route Controlled Quantities of Radioactive Materials as defined in 49
CFR part 173.403,'' the NPRM proposed to incorporate by reference the
April 1, 2018, edition, which also captures changes adopted in the
April 1, 2017 edition. Cumulatively, 15 updates distinguish the April
1, 2018, edition from the 2016 edition. Each of the changes was
described and discussed in detail in the NPRM. Generally, the changes
serve to clarify or provide additional guidance to inspectors regarding
uniform implementation and application of the out-of-service criteria,
and none is expected to affect the number of out-of-service violations
cited during Level VI inspections. The incorporation by reference of
the 2018 edition did not change what constitutes a violation of FMCSA
regulations.
VI. Discussion of Comments Received on the Proposed Rule
FMCSA received one comment to the NPRM. The Commercial Vehicle
Safety Alliance (CVSA) commended FMCSA for publishing the NPRM, and
encouraged FMCSA to finalize the rule and update the incorporation by
reference because ``the current reference of the April 1, 2016 edition
is outdated and does not reflect the most up to date standard.'' In
addition, CVSA noted that the ``North American Standard Out-of-Service
Criteria and Level VI Inspection Procedures and Out-of-Service Criteria
for Commercial Highway Vehicles Transporting Transuranics and Highway
Route Controlled Quantities of Radioactive Materials as defined in 49
CFR part 173.403'' is updated annually, and encouraged FMCSA to take
the necessary action to update the regulations accordingly at that
time.
VII. Section-by-Section Analysis
FMCSA revises Sec. Sec. 385.4 (a) and 385.415 (b) to conform to
formatting requirements of the Office of the Federal Register; to
update the reference in Sec. 385.4(b) from the April 1, 2016, edition
to the April 1, 2018, edition of the ``North American Standard Out-of-
Service Criteria and Level VI Inspection Procedures and Out-of-Service
Criteria for Commercial Highway Vehicles Transporting Transuranics and
Highway Route Controlled Quantities of Radioactive Materials as defined
in 49 CFR part 173.403;'' and to clarify that copies are available to
the public from CVSA either through its website, or by contacting CVSA
at the address, and phone number provided, and from additional sources
of information associated with future incorporations by reference.
VIII. International Impacts
The FMCSRs, and any exceptions to the FMCSRs, apply only within the
United States (and, in some cases, United States territories). Motor
carriers and drivers are subject to the laws and regulations of the
countries in which they operate, unless an international agreement
states otherwise. Drivers and carriers should be aware of the
regulatory differences among nations.
The CVSA is an organization representing Federal, State and
Provincial motor carrier safety enforcement agencies in United States,
Canada and Mexico. The Out-of-Service Criteria provide uniform
enforcement tolerances for roadside inspections conducted in all three
countries.
IX. Regulatory Analyses
A. E.O. 12866 (Regulatory Planning and Review), E.O. 13563 (Improving
Regulation and Regulatory Review), and DOT Regulatory Policies and
Procedures
FMCSA has determined that this action is not a significant
regulatory action under section 3(f) of E.O. 12866, Regulatory Planning
and Review, as supplemented by E.O. 13563 (76 FR 3821, January 21,
2011), Improving Regulation and Regulatory Review. Accordingly, the
Office of Management and Budget (OMB) has not reviewed it
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under that Order. It is also not significant within the meaning of DOT
regulatory policies and procedures (DOT Order 2100.6 dated Dec. 20,
2018).
B. E.O. 13771 Reducing Regulation and Controlling Regulatory Costs
E.O. 13771, ``Reducing Regulation and Controlling Regulatory
Costs,'' does not apply to this action because it is a nonsignificant
regulatory action, as defined in section 3(f) of E.O. 12866, and has
zero costs; therefore, it is not subject to the ``2 for 1'' and
budgeting requirements.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (RFA), Public Law 96-354, 94
Stat. 864 (1980), as amended by the Small Business Regulatory
Enforcement Fairness Act of 1996 (SBREFA) (5 U.S.C. 601 et seq.),
requires Federal agencies to consider the effects of the regulatory
action on small business and other small entities and to minimize any
significant economic impact. The term ``small entities'' comprises
small businesses and not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with populations of less than 50,000.\4\
In compliance with the RFA, FMCSA evaluated the effects of the proposed
rule on small entities. The rule incorporates by reference the April 1,
2018, edition of CVSA's ``North American Standard Out-of-Service
Criteria and Level VI Inspection Procedures and Out-of-Service Criteria
for Commercial Highway Vehicles Transporting Transuranics and Highway
Route Controlled Quantities of Radioactive Materials as defined in 49
CFR part 173.403.'' DOT policy requires an analysis of the impact of
all regulations on small entities, and mandates that agencies strive to
lessen any adverse effects on these entities.
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\4\ 5 U.S.C. 601.
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When an Agency issues a rulemaking proposal, the RFA requires the
Agency to ``prepare and make available an initial regulatory
flexibility analysis'' that will describe the impact of the proposed
rule on small entities (5 U.S.C 603(a)). Section 605 of the RFA allows
an agency to certify a rule, instead of preparing an analysis, if the
final rule is not expected to impact a substantial number of small
entities. The final rule is largely editorial and provides guidance to
inspectors and motor carriers transporting transuranics in interstate
commerce. Accordingly, I hereby certify that this final rule will not
have a significant economic impact on a substantial number of small
entities.
D. Assistance for Small Entities
In accordance with section 213(a) of the Small Business Regulatory
Enforcement Fairness Act of 1996, FMCSA wants to assist small entities
in understanding this rule so that they can better evaluate its
effects. If the rule will affect your small business, organization, or
governmental jurisdiction and you have questions concerning its
provisions, please consult the FMCSA point of contact, Michael Huntley,
listed in the FOR FURTHER INFORMATION CONTACT section of this rule.
Small businesses may send comments on the actions of Federal
employees who enforce or otherwise determine compliance with Federal
regulations to the Small Business Administration's Small Business and
Agriculture Regulatory Enforcement Ombudsman and the Regional Small
Business Regulatory Fairness Boards. The Ombudsman evaluates these
actions annually and rates each agency's responsiveness to small
business. If you wish to comment on actions by employees of FMCSA, call
1-888-REG-FAIR (1-888-734-3247). DOT has a policy regarding the rights
of small entities to regulatory enforcement fairness and an explicit
policy against retaliation for exercising these rights.\5\
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\5\ U.S. Department of Transportation (DOT). ``The Rights of
Small Entities to Enforcement Fairness and Policy Against
Retaliation.'' Available at: https://www.transportation.gov/sites/dot.gov/files/docs/SBREFAnotice2.pdf (accessed April 20, 2018).
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E. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. The Act addresses actions that may result in the
expenditure by a State, local, or tribal government, in the aggregate,
or by the private sector, of $161 million (which is the value
equivalent to $100,000,000 in 1995, adjusted for inflation to 2017
levels) or more in any one year. This final rule will not result in
such an expenditure.
F. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.),
Federal agencies must obtain approval from the OMB for each collection
of information they conduct, sponsor, or require through regulations.
FMCSA determined that no new information collection requirements are
associated with this final rule.
G. E.O. 13132 (Federalism)
A rule has implications for federalism under section 1(a) of
Executive Order 13132 if it has ``substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government.'' FMCSA has determined that this rule
will not have substantial direct costs on or for States, nor will it
limit the policymaking discretion of States. Nothing in this document
preempts any State law or regulation. Therefore, this rule does not
have sufficient federalism implications to warrant the preparation of a
Federalism Impact Statement.
H. E.O. 12988 (Civil Justice Reform)
This final rule meets applicable standards in sections 3(a) and
3(b) (2) of E.O. 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
I. E.O. 13045 (Protection of Children)
E.O. 13045, Protection of Children from Environmental Health Risks
and Safety Risks, requires agencies issuing ``economically
significant'' rules, if the regulation also concerns an environmental
health or safety risk that an agency has reason to believe may
disproportionately affect children, to include an evaluation of the
regulation's environmental health and safety effects on children. The
Agency determined this final rule is not economically significant.
Therefore, no analysis of the impacts on children is required. In any
event, the Agency does not anticipate that this regulatory action could
in any respect present an environmental or safety risk that could
disproportionately affect children.
J. E.O. 12630 (Taking of Private Property)
FMCSA reviewed this final rule in accordance with E.O. 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights, and has determined it will not effect a taking of
private property or otherwise have taking implications.
K. Privacy Impact Assessment
Section 522 of title I of division H of the Consolidated
Appropriations Act, 2005, enacted December 8, 2004 (Pub. L. 108-447,
118 Stat. 2809, 3268, 5 U.S.C. 552a note), requires the Agency to
conduct a privacy impact assessment (PIA) of a regulation that will
affect the privacy of individuals. This rule does not require the
collection of personally identifiable information (PII).
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The Privacy Act (5 U.S.C. 552a) applies only to Federal agencies
and any non-Federal agency which receives records contained in a system
of records from a Federal agency for use in a matching program.
The E-Government Act of 2002, Public Law 107-347, section 208, 116
Stat. 2899, 2921 (Dec. 17, 2002), requires Federal agencies to conduct
a PIA for new or substantially changed technology that collects,
maintains, or disseminates information in an identifiable form. No new
or substantially changed technology will collect, maintain, or
disseminate information as a result of this rule. Therefore, FMCSA has
not conducted a PIA.
L. E.O. 12372 (Intergovernmental Review)
The regulations implementing E.O. 12372 regarding intergovernmental
consultation on Federal programs and activities do not apply to this
program.
M. E.O. 13211 (Energy Supply, Distribution, or Use)
FMCSA has analyzed this final rule under E.O. 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. The Agency has determined that it is not a
``significant energy action'' under that order because it is not a
``significant regulatory action'' likely to have a significant adverse
effect on the supply, distribution, or use of energy. Therefore, it
does not require a Statement of Energy Effects under E.O. 13211.
N. E.O. 13175 (Indian Tribal Governments)
This final rule does not have Tribal implications under E.O. 13175,
Consultation and Coordination with Indian Tribal Governments, because
it does not have a substantial direct effect on one or more Indian
Tribes, on the relationship between the Federal Government and Indian
Tribes, or on the distribution of power and responsibilities between
the Federal Government and Indian Tribes.
O. National Technology Transfer and Advancement Act (Technical
Standards)
The National Technology Transfer and Advancement Act (15 U.S.C. 272
note) directs agencies to use voluntary consensus standards in their
regulatory activities unless the agency provides Congress, through OMB,
with an explanation of why using these standards would be inconsistent
with applicable law or otherwise impractical. Voluntary consensus
standards (e.g., specifications of materials, performance, design, or
operation; test methods; sampling procedures; and related management
systems practices) are standards that are developed or adopted by
voluntary consensus standards bodies. FMCSA does not intend to adopt
its own technical standard, thus there is no need to submit a separate
statement to OMB on this matter. The standard being incorporated in
this final rule is discussed in greater detail in sections IV, V and
VII above, and is reasonably available at FMCSA and through the CVSA
website.
P. Environment (NEPA)
FMCSA analyzed this rule consistent with the National Environmental
Policy Act of 1969 (42 U.S.C. 4321 et seq.) and determined this action
is categorically excluded from further analysis and documentation in an
environmental assessment or environmental impact statement under FMCSA
Order 5610.1 (69 FR 9680, March 1, 2004), Appendix 2, paragraph (6)(b).
The Categorical Exclusion (CE) in paragraph 6.t.(2) includes
regulations to ensure that the States comply with the provisions of the
Commercial Motor Vehicle Safety Act of 1986. The content in this rule
is covered by this CE, there are no extraordinary circumstances
present, and the final action does not have any effect on the quality
of the environment. The CE determination is available for inspection or
copying in the Regulations.gov website listed under ADDRESSES.
List of Subjects in 49 CFR Part 385
Administrative practice and procedure, Highway safety,
Incorporation by reference, Mexico, Motor carriers, Motor vehicle
safety, Reporting and recordkeeping requirements.
In consideration of the foregoing, FMCSA amends 49 CFR chapter III,
part 385, as set forth below:
PART 385--SAFETY FITNESS PROCEDURES
0
1. The authority citation for part 385 is revised to read as follows:
Authority: 49 U.S.C. 113, 504, 521(b), 5105(d), 5109, 5113,
13901-13905, 13908, 31135, 31136, 31144, 31148, 31151 and 31502;
Sec. 350, Pub. L. 107-87, 115 Stat. 833, 864; and 49 CFR 1.87.
0
2. Revise Sec. 385.4 to read as follows:
Sec. 385.4 Matter incorporated by reference.
(a) Certain material is incorporated by reference into this part
with the approval of the Director of the Federal Register under 5
U.S.C. 552(a) and 1 CFR part 51. To enforce any edition other than that
specified in this section, FMCSA must publish notification of the
change in the Federal Register and the material must be available to
the public. All approved material is available for inspection at
Federal Motor Carrier Safety Administration, Office of Enforcement and
Compliance, 1200 New Jersey Ave. SE, Washington, DC 20590; Attention:
Chief, Compliance Division at (202) 366-1812, and is available from the
sources listed in paragraph (b) of this section. It is also available
for inspection at the National Archives and Records Administration
(NARA). For information on the availability of this material at NARA,
call (202) 741-6030 or go to http://www.archives.gov/federal-register/cfr/ibr-locations.html.
(b) Commercial Vehicle Safety Alliance, 6303 Ivy Lane, Suite 310,
Greenbelt, MD 20770, telephone (301) 830-6143, www.cvsa.org.
(1) ``North American Standard Out-of-Service Criteria and Level VI
Inspection Procedures and Out-of-Service Criteria for Commercial
Highway Vehicles Transporting Transuranics and Highway Route Controlled
Quantities of Radioactive Materials as defined in 49 CFR part
173.403,'' April 1, 2018, incorporation by reference approved for Sec.
385.415(b).
(2) [Reserved]
0
3. In Sec. 385.415, remove paragraph (b)(2), redesignate paragraph
(b)(1) as paragraph (b), and add a heading for newly redesignated
paragraph (b) to read as follows:
Sec. 385.415 What operational requirements apply to the
transportation of a hazardous material for which a permit is required?
* * * * *
(b) Inspection of vehicle transporting Class 7 (radioactive)
materials. * * *
* * * * *
Issued under authority delegated in 49 CFR 1.87 on June 27,
2019.
Raymond P. Martinez,
Administrator.
[FR Doc. 2019-14226 Filed 7-5-19; 8:45 am]
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