Hours of Service (HOS) of Drivers; Renewal of American Pyrotechnics Association (APA) Exemption From the 14-Hour Rule During Independence Day Celebrations |
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Topics: Federal Motor Carrier Safety Administration
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Anne S. Ferro
Federal Register
June 28, 2011
[Federal Register Volume 76, Number 124 (Tuesday, June 28, 2011)]
[Notices]
[Pages 37876-37880]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-16192]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket No. FMCSA-2007-28043]
Hours of Service (HOS) of Drivers; Renewal of American
Pyrotechnics Association (APA) Exemption From the 14-Hour Rule During
Independence Day Celebrations
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice of renewal of exemption; request for comments.
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SUMMARY: The FMCSA announces the renewal of the exemption of specified
members of the American Pyrotechnics Association (APA) from FMCSA's
prohibition on driving commercial motor vehicles (CMVs) after the 14th
hour after the driver comes on duty. The exemption granted to 53 motor
carriers and approximately 3,000 CMV drivers is applicable during the
periods June 28-July 8, 2011, and June 28-July 8, 2012, inclusive. The
requested renewal of a prior exemption for one motor carrier is not
being granted. Drivers who operate applicable CMVs in conjunction with
staging fireworks shows celebrating Independence Day will be allowed to
exclude off-duty and sleeper-berth time of any length from the
calculation of the 14 hours. These drivers will continue to be subject
to the 14-hour cumulative on-duty limit, the 11-hour driving time
limit, and the 60- and 70-hour weekly on-duty limits. The FMCSA
believes that with the terms and conditions of this exemption in
effect, designated APA-member motor carriers will maintain a level of
safety that, at a minimum, is equivalent to the level of safety that
would be obtained by complying with the regulation.
DATES: This renewed exemption is effective during the periods of June
28 (12:01 a.m.) through July 8, 2011 (11:59 p.m.) and from June 28
(12:01 a.m.) through July 8, 2012 (11:59 p.m.). Comments must be
received on or before July 28, 2011.
ADDRESSES: You may submit comments identified by Federal Docket
Management System Number FMCSA-2007-28043 by any of the following
methods:
Federal eRulemaking Portal: Go to http://www.regulations.gov. In the Enter Keyword OR ID box enter FMCSA-2007-
28043 and click on the tab labeled Search. On the ensuing page, click
on any tab labeled Submit a Comment on the extreme right of the page
and a page should open that is titled ``Submit a Comment.'' You may
identify yourself under section 1, Enter Information, or you may skip
section 1 and remain anonymous. You enter your comments in section 2,
Type Comment & Upload File. When you are ready to submit your comments,
click on the tab labeled Submit. Your comment is then submitted to the
docket; and you will receive a tracking number.
Fax: 1-202-493-2251.
Mail: Docket Management Facility: U.S. Department of
Transportation, 1200 New Jersey Avenue, SE., West Building, Ground
Floor, Room W12-140, Washington, DC 20590-0001.
Hand Delivery: West Building, Ground Floor, Room W12-140,
1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m.
E.T., Monday through Friday, except Federal holidays.
Instructions: All submissions must include the Agency name and
docket number. For detailed instructions on submitting comments and
additional information on the exemption process, see the Public
Participation heading below. Note that all comments received will be
posted without change to http://www.regulations.gov, including any
personal information provided. Please see the Privacy Act heading
below.
Docket: For access to the docket to read background documents or
comments received, go to www.regulations.gov at any time, and in the
Enter Keyword or ID box enter FMCSA-2007-28043 and click on the tab
labeled Search.
[[Page 37877]]
Privacy Act: Anyone is able to search the electronic form of all
comments received into any of our 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 DOT's
complete Privacy Act Statement published in the Federal Register on
January 17, 2008 (73 FR 3316) or you may visit http://edocket.access.gpo.gov/2008/pdf/E8-785.pdf.
Public Participation: The http://www.regulations.gov Web site is
generally available 24 hours each day, 365 days each year. You can
obtain electronic submission and retrieval help and guidelines under
the ``help'' section of the http://www.regulations.gov Web site. If you
want us to notify you that we received your comments, please include a
self-addressed, stamped envelope or postcard or print the
acknowledgement page that appears after submitting comments online.
FOR FURTHER INFORMATION CONTACT: Ms. Christine Hydock, FMCSA Driver and
Carrier Operations Division, Office of Bus and Truck Standards and
Operations, Telephone: 202-366-4325. E-mail: MCPSD@dot.gov.
SUPPLEMENTARY INFORMATION:
APA Application for Exemption Renewal
The hours-of-service (HOS) rules in 49 CFR 395.3(a)(2) prohibit a
property-carrying CMV driver from driving after the 14th hour after
coming on duty following 10 consecutive hours off duty. Under 49 U.S.C.
31315 and 31136(e), FMCSA may renew an exemption from the HOS
requirements in 49 CFR 395.3(a)(2) for a 2-year period if it finds
``such exemption would likely achieve a level of safety that is
equivalent to, or greater than, the level that would be achieved absent
such exemption.'' The procedures for requesting an exemption (including
renewals) are prescribed in 49 CFR part 381.
The APA, a trade association representing the domestic fireworks
industry, had previously requested and received an exemption from this
HOS subsection for certain motor carrier members. The APA has applied
for renewal of that exemption. A copy of the request for renewal is
included in the docket referenced at the beginning of this notice. A
copy of APA's original 2004 request for waiver or exemption is also in
the docket. The FMCSA has evaluated the APA application for renewal on
its merits and decided to renew the exemption for 53 companies for a
two-year period, and not renew the exemption requested for one company.
The list of APA-member companies covered by the exemption from 49 CFR
395.3(a)(2) is included as an Appendix to this Notice.
As stated in APA's 2004 request for waiver or exemption, the CMV
drivers employed by APA-member companies are trained pyrotechnicians,
and hold commercial driver's licenses (CDLs) with hazardous materials
(HM) endorsements. They transport fireworks and equipment by CMV on a
very demanding schedule during a brief Independence Day period, often
to remote locations. After they arrive, the APA drivers are responsible
for set-up and staging of the fireworks shows.
In 2009, FMCSA granted a limited exemption to 14 new APA-member
motor carriers (74 FR 29266, June 19, 2009) and renewed 61exemptions of
APA-member motor carriers (74 FR 29264, June 19, 2009) for their CMV
transportation of fireworks for Independence Day displays in 2009 and
2010. The exemption was limited to the period from June 28 to July 8,
inclusive, in 2009 and 2010. Previously, the Agency had granted a
waiver to APA for a similar exception for the 2004 Independence Day
period, and two-year exemptions for the 2005-2006 and 2007-2008
periods. The Agency is not aware of any adverse safety events related
to APA operations during these Independence Day periods.
The APA is seeking renewal of the 2009 exemptions for the 2011 and
2012 Independence Day periods because it argues that compliance with
the current 14-hour rule by its members would impose a substantial
economic hardship on numerous cities, towns and municipalities, as well
as its member companies. To meet the demand for fireworks under the
current HOS rules, APA-member companies claim they would be required to
hire a second driver for most trips. The APA argues that the result
would be a substantial increase in the cost of the fireworks shows--
beyond the means of many of its members' customers--and that many
Americans would be denied this important component of the celebration
of Independence Day.
Method To Ensure an Equivalent or Greater Level of Safety
The APA believes that renewal of the exemption will not adversely
affect the safety of the fireworks transportation provided by these
motor carriers. According to APA, its member motor carriers have
operated under this exemption for seven previous Independence Day
periods without a reported motor carrier safety incident. Moreover, it
asserts, without the extra duty-period time provided by the exemption,
safety would decline because APA drivers would be unable to return to
their home base after each show. They would be forced to park the CMVs
carrying HM 1.1G, 1.3G and 1.4G products in areas less secure than the
motor carrier's home base. As a condition of holding the exemption,
each motor carrier is required to notify FMCSA within 5 business days
of any accident (as defined in 49 CFR 390.5) involving the operation of
any its CMVs while under this exemption. To date, FMCSA has received no
accident notifications, nor is the Agency aware of any accidents
reportable under terms of the exemption.
In its original exemption request, APA argued that the operational
demands of this unique industry minimize the risks of CMV crashes. In
the last few days before the Independence Day holiday, these drivers
transport fireworks over relatively short routes from distribution
points to the site of the fireworks display, and normally do so in the
early morning when traffic is light. At the site, they spend
considerable time installing, wiring, and safety-checking the fireworks
displays, followed by several hours off duty in the late afternoon and
early evening prior to the event. During this time, the drivers are
able to rest and nap, thereby reducing or eliminating the fatigue
accumulated during the day. Before beginning another duty day, these
drivers must take 10 consecutive hours off-duty, the same as other CMV
drivers. FMCSA believes that these APA operations, conducted under the
terms and conditions of this limited exemption, will provide a level of
safety that, at a minimum, is equivalent to the level of safety
achieved without the exemption.
Advocates for Highway and Auto Safety (Advocates) June 5, 2009,
Comments
During the exemption renewal process in 2009, FMCSA's June 19,
2009, notice did not acknowledge or respond to comments submitted by
Advocates. Although Advocates timely filed its comments on June 5,
prior to the June 8 deadline for responding to the Agency's May 22
notices (74 FR 24066 and 74 FR 24069), those comments were not
available at http://www.regulations.gov, the Web site at which docket
comments are posted, until after the comment period had closed. By the
time the personnel responsible for managing this Web site for all
Federal regulatory matters had posted Advocates' comments to the
electronic docket, FMCSA staff had prepared its draft notice of final
[[Page 37878]]
disposition. Because of the time constraints for issuing a decision in
time for the 2009 Independence Day celebration, FMCSA issued the notice
of final disposition on June 19, 2009 (74 FR 29264), without the
Advocates' comments.
In consideration of the administrative delay in the posting of the
Advocates' comments to the docket, FMCSA published a notice requesting
public comment on March 25, 2011, pertaining to the safety impact of
the exemption prior to consideration of any subsequent requests for
renewal of the exemption (76 FR 16852). The deadline for submitting
comments was April 25, 2011. As of June 20, 2011, no comments had been
submitted to the public docket. However, because the Agency did not
specifically address Advocates' comments in 2009, we will do so now.
FMCSA Response to Advocates' 2009 Comments
Advocates argue that the Agency is relying on uncorroborated
statements about APA members' work schedules and safety management
controls. The Agency acknowledges that it does not, as a matter of
routine practice, review data on the actual schedules drivers are
working during the period of the exemption. However, the participating
carriers are generally required under 49 CFR 395.8 to retain records of
duty status information for a period of 6 months from the date the
records are generated, as is the case for all interstate drivers
subject to the recordkeeping provisions of the HOS rules. Therefore, in
the event of a crash or unintentional release or detonation of
hazardous materials, the carriers would be required to produce, upon
demand, records to document the actual work and rest hours of the
drivers in question, which would enable the Agency to assess the
likelihood of fatigue being a factor in the adverse event. Also, the
Agency retains full regulatory jurisdiction to conduct investigations
of allegations of violations of the Federal safety or hazardous
materials regulations by these carriers, including allegations of
violations of the terms and conditions of the exemption.
With regard to participating carriers' safety management controls,
the Agency routinely reviews the safety performance records of all
carriers prior to granting an exemption. Any carrier with safety
management deficiencies that would call into question its ability to
operate safety under the terms and conditions of the exemption is
excluded from operating under the exemption. Carriers that have
violation rates that meet or exceed the thresholds under the Agency's
Compliance, Safety, Accountability (CSA) Safety Measurement System are
subject to enforcement interventions to address the deficiencies in
their safety management controls.
As for Advocates' charge that the exemption process is a procedural
and substantive abuse of regulatory authority, the Agency's actions are
consistent with the statutory authority provided under 49 U.S.C. 31315
concerning waivers, exemptions and pilot programs. The notice-and-
comment process associated with exemption applications is consistent
with notice-and-comment rulemaking procedures. In both cases, FMCSA
offers for public comment a matter being considered for action, and the
final action taken by the Agency must consider the public comments
received. The Agency provides a formal written response to substantive
concerns raised by the commenters via a Federal Register notice to
bring to closure the matter before the Agency. The Agency may agree or
disagree with commenters. Any decision to move forward with the
exemption is not an abuse of authority, but an exercise of judgment
based on the information in the public record.
In that regard, the Agency does not consider the granting of APA's
exemption application or requests for renewal to represent a ``major
departure'' from the HOS regulations, as argued by Advocates. While the
participating carriers would be provided with limited relief from 49
CFR 395.3(a)(2), which prohibits a property-carrying CMV driver from
driving after the 14th hour after coming on duty following 10
consecutive hours off duty, drivers will be prohibited from driving at
any time after accumulating 14 hours of on-duty time. Therefore,
drivers would not be allowed to drive CMVs in interstate commerce after
accumulating 14 hours of on-duty time, following 10 consecutive hours
off-duty. The participating drivers will continue to be subject to the
11-hour driving time limit following 10 consecutive hours off duty, and
the 60- and 70-hour weekly on-duty limits. The FMCSA believes that with
the terms and conditions of this exemption in effect, APA-member motor
carriers will maintain a level of safety that is equivalent to, or
greater than, the level of safety that would be obtained by complying
with the regulation.
Non-Renewal of a Prior Exemption
During its review of the safety history of applicants for this
exemption, FMCSA examined records of the Pipeline and Hazardous
Materials Safety Administration (PHMSA), which has jurisdiction over
certain aspects of the transportation of hazardous materials, as
specified in the Hazardous Materials Regulations (HMR) (49 CFR parts
105-185). PHMSA records indicate that one of the APA-member applicants
for this exemption--Melrose Pyrotechnics, Inc. (Melrose), PO Box 302,
Kingsbury, IN 46345, USDOT 434586--was investigated on November 23,
2009, and that PHMSA investigators discovered five violations regarding
the shipment of hazardous materials, one of which was coded as ``high
severity'' (Case 09436056). This resulted in an enforcement action that
included a total of $24,800 in penalties. In view of this unfavorable
safety information, FMCSA is not granting APA's request to include
Melrose among the exempted motor carriers.
Terms and Conditions of the Exemption
Period of the Exemption
The exemption from the requirements of 49 CFR 395.3(a)(2) is
effective June 28 through July 8, 2011, inclusive, and from June 28
through July 8, 2012, inclusive. The exemption expires on July 8, 2012,
at 11:59 p.m.
Extent of the Exemption
This exemption is restricted to drivers employed by the 53
companies, firms and entities listed in the appendix to this notice.
The drivers will be given a limited exemption from the requirements of
49 CFR 395.3(a)(2). This regulation prohibits a driver from driving
after the 14th hour after coming on duty and does not permit off-duty
periods to extend the 14-hour limit. Drivers covered by this exemption
may exclude off-duty and sleeper-berth time of any length from the
calculation of the 14-hour limit. This exemption is contingent on each
driver driving no more than 11 hours in a 14-hour period. The exemption
is further contingent on each driver having a full 10 consecutive hours
off duty following 14 hours on duty prior to beginning a new driving
period. The carriers and drivers must comply with all other
requirements of the Federal Motor Carrier Safety Regulations (49 CFR
parts 350-399) and Hazardous Materials Regulations (49 CFR parts 105-
180).
Preemption
During the periods the exemption is in effect, no State shall
enforce any law or regulation that conflicts with or is inconsistent
with this exemption with respect to a person or entity operating under
the exemption (49 U.S.C. 31315(d)).
[[Page 37879]]
FMCSA Notification
Exempt motor carriers must notify FMCSA within 5 business days of
any accidents (as defined by 49 CFR 390.5) involving the operation of
any of its CMVs while under this exemption. The notification must
include the following information:
a. Date of the accident,
b. City or town, and State, in which the accident occurred, or
which is closest to the scene of the accident,
c. Driver's name and driver's license number,
d. Vehicle number and State license number,
e. Number of individuals suffering physical injury,
f. Number of fatalities,
g. The police-reported cause of the accident,
h. Whether the driver was cited for violation of any traffic laws,
or motor carrier safety regulations, and
i. The total driving time and the total on-duty time of the CMV
driver at the time of the accident.
Termination
The FMCSA does not believe the motor carriers and drivers covered
by this exemption will experience any deterioration of their safety
record. However, should this occur, FMCSA will take all steps necessary
to protect the public interest, including revocation of the exemption.
The FMCSA will immediately revoke the exemption for failure to comply
with its terms and conditions. Exempt motor carriers and drivers are
subject to FMCSA monitoring while operating under this exemption.
Request for Comments
In accordance with 49 U.S.C. 31315(b)(4) and 31136(e), FMCSA
requests public comments on the renewal of APA's exemption from the
requirements of 49 CFR 395.3(a)(2). The FMCSA will review all comments
received and determine whether the renewal of the exemption is
consistent with the requirements of 49 U.S.C. 31315 and 31136(e).
Comments received after the comment closing date will be filed in the
public docket and will be considered to the extent practicable.
Interested parties or organizations possessing information that
would show that any or all of these APA member companies are not
achieving the requisite statutory level of safety should immediately
notify FMCSA. The Agency will evaluate any information submitted and,
if safety is being compromised or if the continuation of the exemption
is inconsistent with 49 U.S.C. 31315(b)(4) and 31136(e), FMCSA will
immediately take steps to revoke the exemption of the company or
companies and drivers in question.
Issued on: June 22, 2011.
Anne S. Ferro,
Administrator.
Appendix to Notice of Renewal of American Pyrotechnics Association (APA) Exemption From the 14-Hour HOS Rule
During 2011 and 2012 Independence Day Celebrations
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Motor carrier Address 1 Address 2 DOT No.
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1. Alonzo Fireworks Display, Inc......... 12 County Rd 75............ Mechanicsville, NY 12118... 420639
2. American Fireworks Company............ 7041 Darrow Road........... Hudson, OH 44236........... 103972
3. Arrowhead Fireworks Co., Inc.......... 3625 Normanna Rd........... Duluth, MN 55803........... 125673
4. Atlas Enterprises Inc................. 6601 Nine Mile Azle Rd..... Fort Worth, TX 76135....... 0116910
5. Atlas Pyrovision Productions, Inc..... 136 Old Sharon Road........ Jaffrey, NH 03452.......... 789777
6. B.J. Alan Company..................... 555 Martin Luther King, Jr Youngstown, OH 44502-1102.. 262140
Blvd.
7. Cartwright Fireworks, Inc............. 1608 Keely Road............ Franklin, PA 16323......... 882283
8. Central States Fireworks, Inc......... 18034 Kincaid Street....... Athens, IL 62613........... 1022659
9. Colonial Fireworks Company............ 5225 Telegraph Road........ Toledo, OH 43612........... 177274
10. Entertainment Fireworks, Inc......... PO Box 7160................ Olympia, WA 98507-7160..... 680942
11. Falcon Fireworks..................... 3411 Courthouse Road....... Guyton, GA 31312........... 1037954
12. Fireworks & Stage FX America......... PO Box 488................. Lakeside, CA 92040......... 908304
13. Fireworks by Grucci, Inc............. 1 Grucci Lane.............. Brookhaven, NY 11719....... 324490
14. Fireworks Productions of Arizona, Ltd 17034 S 54th Street........ Chandler, AZ 85226......... 948780
15. Fireworks West Internationale........ 3200 West 910 North........ Logan, UT 84321............ 245423
16. Garden State Fireworks, Inc.......... 383 Carlton Road........... Millington, NJ 07946....... 435878
17. Gateway Fireworks Displays........... PO Box 39327............... St Louis, MO 63139......... 1325301
18. Global Pyrotechnics Solutions, Inc... 10476 Sunset Drive......... Dittmer, MO 63023.......... 1183902
19. Great Lakes Fireworks................ 24805 Marine............... Eastpointe, MI 48021....... 1011216
20. Hamburg Fireworks Display Inc........ 4300 Logan Lancaster Rd.... Lancaster, OH.............. 395079
21. Hollywood Pyrotechnics, Inc.......... 1567 Antler Point.......... Eagan, MN 55122............ 1061068
22. Ingram Enterprises dba Fireworks over 6597 W Independece Drive... Springfield, MO 65802...... 0268419
America.
23. Island Fireworks Company............. N735 825th St.............. Hager City, WI 54014....... 414583
24. J&M Displays, Inc.................... 18064 170th Ave............ Yarmouth, IA 52660......... 377461
25. Jake's Fireworks/Fireworks 2311 A West 4th St......... Pittsburg, KS 66762........ 449599
Spectacular.
26. Johnny Rockets Fireworks Display Co.. 4410 N. Hamilton........... Chicago, IL 60625.......... 1263181
27. Kellner's Fireworks Inc.............. 478 Old Rte 8.............. Harrisville, PA............ 481553
28. Lantis Productions dba Lantis PO Box 491................. Draper, UT 84202........... 195428
Fireworks and Lasers.
29. Legion Fireworks Co., Inc............ 10 Legion Lane............. Wappingers Falls, NY 12590. 554391
30. Mad Bomber/Planet Productions........ PO Box 294................. Kingsbury, IN 46345........ 777176
31. Montana Display Inc.................. 9480 Inspiration Drive..... Missoula, MT 59808......... 1030231
32. Precocious Pyrotechnics, Inc......... 4420-278th Ave NW.......... Belgrade, MN 56312......... 435931
33. Pyro Engineering Inc., dba/Bay 110 Route 110, Suite 102... Huntington Station, NY 530262
Fireworks. 11746.
34. Pyro Shows Inc....................... 701 W. Central Ave......... LaFollette, TN 37766....... 456818
35. Pyro Spectacluars, Inc............... 3196 N Locust Ave.......... Rialto, CA 92376........... 029329
36. Pyrotecnico.......................... 302 Wilson Rd.............. New Castle, PA 16105....... 526749
37. Pyrotecnico of Louisiana, LLC........ 60 West Ct................. Mandeville, LA 70471....... 548303
[[Page 37880]]
38. Rainbow Fireworks, Inc............... 76 Plum Ave................ Inman, KS 67546............ 1139643
39. RES Specialty Pyrotechnics........... 21595 286th St............. Belle Plaine, MN 56011..... 523981
40. Rich Brothers Company................ 700 S Marion Rd............ Sioux Falls, SD 57106...... 001356
41. Rozzi's Famous Fireworks, Inc........ 11605 North Lebanon Rd..... Loveland, OH 45140......... 0483686
42. Skyworks, Ltd........................ 13513 W. Carrier Rd........ Carrier, OK 73727.......... 1421047
43. Spielbauer Fireworks Co, Inc......... 220 Roselawn Blvd.......... Green Bay, WI 54301........ 046479
44. Stonebraker-Rocky Mountain Fireworks 5650 Lowell Blvd, Unit E... Denver, CO 80221........... 0029845
Co.
45. Vermont Fireworks Co., Inc./Northstar 2235 Vermont Route 14 South East Montpelier, VT 05651.. 310632
Fireworks Co., Inc.
46. Wald & Co., Inc...................... PO Box 319................. Greenwood, MO 64034-0319... 087079
47. Walt Disney Parks and Resorts US Inc. Box 10000.................. Lake Buena Vista, FL 32830. 1025131
48. Western Enterprises, Inc............. PO Box 160................. Carrier, OK 73727.......... 203517
49. Winco Fireworks Int. LLC............. 1992 NW Hwy 50............. Lone Jack, MO.............. 259688
50. Wolverine Fireworks Display, Inc..... 205 W Seidlers............. Kawkawlin, MI.............. 376857
51. Victory Fireworks Inc................ 579 Vincent Lane........... Ellsworth, WI 54011........ 539751
52. Young Explosives Corp................ P.O. Box 18653............. Rochester, NY.............. 450304
53. Zambelli Fireworks MFG, Co., Inc..... PO Box 1463................ New Castle, PA 16103....... 033167
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[FR Doc. 2011-16192 Filed 6-27-11; 8:45 am]
BILLING CODE 4910-EX-P