Nationally Recognized Testing Laboratories; Proposed Policy for Transitioning to Satellite Notification and Acceptance Program (SNAP) Termination, 7606-7610 [2020-02564]

Agencies

• DEPARTMENT OF LABOR
• Occupational Safety and Health Administration

[Federal Register Volume 85, Number 27 (Monday, February 10, 2020)]
[Notices]
[Pages 7606-7610]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-02564]


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 DEPARTMENT OF LABOR

Occupational Safety and Health Administration

[Docket No. OSHA-2007-0053]


Nationally Recognized Testing Laboratories; Proposed Policy for 
Transitioning to Satellite Notification and Acceptance Program (SNAP) 
Termination

AGENCY: Occupational Safety and Health Administration (OSHA), Labor.

ACTION: Notice.

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SUMMARY: In this notice, OSHA proposes a policy for transitioning to 
the termination of the Satellite Notification and Acceptance Program 
(SNAP).

DATES: Submit comments, information, and documents in response to this 
notice, on or before March 11, 2020. All submissions must bear a 
postmark or provide other evidence of the submission date.

ADDRESSES: 
    Electronically: You may submit comments and attachments 
electronically at: https://www.regulations.gov, which is the Federal 
eRulemaking Portal. Follow the instructions online for submitting 
comments.
    Facsimile: If your comments, including attachments, are not longer 
than 10 pages, you may fax them to the OSHA Docket Office at (202) 693-
1648.
    Mail, hand delivery, express mail, messenger, or courier service: 
When using this method, you must submit a copy of your comments and 
attachments to the OSHA Docket Office, Docket No. OSHA-2007-0053, 
Occupational Safety and Health Administration, U.S. Department of 
Labor, Room N-3653, 200 Constitution Avenue NW, Washington, DC 20210. 
Deliveries (hand, express mail, messenger, and courier service) are 
accepted during the Docket Office's normal business hours, 10:00 a.m. 
to 3:00 p.m., ET. Note that security procedures may result in 
significant delays in receiving comments and other written materials by 
regular mail.
    Docket: To read or download comments or other material in the 
docket, go to https://www.regulations.gov or the OSHA Docket Office at 
the above address. All documents in the docket (including this Federal 
Register notice) are listed in the https://www.regulations.gov index 
under Docket number OSHA-2007-0053; however, some information (e.g., 
copyrighted material) is not publicly available to read or download 
through

[[Page 7607]]

the website. All submissions, including copyrighted material, are 
available for inspection and copying at the OSHA Docket Office.
    Instructions: All submissions must include the agency name and OSHA 
docket number (OSHA-2007-0053). All comments, including any personal 
information you provide, are placed in the public docket without 
change, and may be made available online at https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Information regarding this notice is 
available from the following sources:
    Press inquiries: Contact Mr. Frank Meilinger, Director, OSHA Office 
of Communications, U.S. Department of Labor by phone: (202) 693-1999; 
email: [email protected].
    General and technical information: Contact Mr. Kevin Robinson, 
Director, Office of Technical Programs and Coordination Activities, 
Directorate of Technical Support and Emergency Management, Occupational 
Safety and Health Administration, phone: (202) 693-2110 or email: 
[email protected].
    Copies of this Federal Register notice: Electronic copies of this 
Federal Register notice are available at https://www.regulations.gov. 
This Federal Register notice, as well as other relevant information, is 
also available on OSHA's web page at https://www.osha.gov.

SUPPLEMENTARY INFORMATION:

I. Background

A. Nationally Recognized Testing Laboratories (NRTL) Program

    Many of OSHA's safety standards require employers to use products 
tested and certified as safe (e.g., 29 CFR 1910, subpart S). In 
general, testing laboratories, and not employers, perform the required 
testing and certification. To ensure that the testing and certification 
performed on products is appropriate, OSHA implemented the NRTL 
Program. This program establishes the criteria that a testing 
laboratory must meet to achieve, and retain, NRTL recognition.
    OSHA recognition of a NRTL signifies that the organization meets 
the legal requirements specified in 29 CFR 1910.7, the regulatory 
provision containing the requirements an organization must meet to 
become a NRTL and retain NRTL status. Recognition is an acknowledgment 
by OSHA that the organization can perform independent safety testing 
and certification of the specific products covered within the 
organization's scope of recognition, and is not a delegation or grant 
of government authority. Recognition under the NRTL Program, therefore, 
enables employers to use products approved by NRTLs to meet OSHA 
standards that require product testing and certification.
    Each NRTL is approved for a scope of recognition, which identifies: 
(a) The type of products the NRTL may approve; and (b) the NRTL's 
``recognized sites.'' The requirements for NRTL recognition are 
outlined in the NRTL Program Regulation at 29 CFR 1910.7 and Appendix A 
to that regulation.

B. NRTL Program Directive

    The NRTL Program Directive sets forth OSHA policies, procedures, 
and interpretations that supplement and clarify the NRTL Program 
regulation, 29 CFR 1910.7 and Appendix A (NRTL Program Policies, 
Procedures and Guidelines, CPL 01-00-004, available at https://www.osha.gov/sites/default/files/enforcement/directives/CPL_01-00-004.pdf). OSHA recently revised the NRTL Program Directive, on October 
1, 2019.
    The revised NRTL Program Directive contains a revised definition of 
``recognized site.'' To be recognized, ``a site must be 
administratively and operationally controlled by the NRTL and must 
perform at least one of the following functions: Testing and inspection 
(and/or accepting test data or inspections), performing reviews, or 
making certification decisions with the NRTL management system'' (NRTL 
Program Directive, Annex C). In revising the definition, OSHA 
eliminated ownership requirements contained in the prior definition of 
recognized site (Id., Ch. 1.IX.D). Thus, to be a recognized site, the 
site no longer has to be owned by the NRTL.
    Prior to issuing the revised NRTL Program Directive (CPL-01-004), 
OSHA permitted NRTLs use a number of different supplemental programs in 
order to use the services of other facilities to test and certify 
products used in the workplace (60 FR 12980, 74 FR 923). One of these 
supplemental programs was Supplemental Program 10, SNAP, that was 
implemented on May 11, 2009 (74 FR 923) and permitted NRTLs to perform 
certain functions to support testing and certification operations at 
``SNAP sites.'' Under SNAP, a NRTL had to have administrative and 
operational control over the NRTL's SNAP sites. However, the majority 
of SNAP sites could not be ``recognized sites'' because of the 
ownership requirements that were then contained in the definition of 
recognized sites in the old NRTL Directive (i.e., a majority of the 
sites could not be ``recognized sites'' because they were not owned by 
the NTRLs).
    OSHA terminated all the supplemental programs, including SNAP, in 
the revised NRTL Program Directive (Ch. 1.IX.B, D). SNAP is no longer 
necessary because the revised definition of ``recognized site'' permits 
OSHA to recognize sites that are administratively and operationally 
controlled by the NRTL but not necessarily owned by the NRTL. As OSHA 
noted in the revised Directive, NRTLs will now be able to apply to OSHA 
to make existing SNAP sites recognized sites (Id.).

C. Revised NRTL Program Directive Implementation Memorandum

    After issuing the revised NRTL Program Directive, OSHA issued a 
policy memorandum on the transition from the prior version to the 
current version of the NRTL Program Directive (available at https://www.osha.gov/dts/otpca/nrtl/NRTLDirectiveTransition Memo.html). A 
portion of that policy memorandum pertains to existing NRTLs applying 
for expansion of recognition and provides:
     Existing NRTLs (each organization OSHA recognized as a 
NRTL on October 1, 2019) must comply with the requirements of the 
revised NRTL Program Directive no later than October 1, 2020. Existing 
NRTLs may comply with the requirements of the prior NRTL Directive 
(CPL-01-00-003) until September 30, 2020.
     OSHA will evaluate pending expansion applications for 
existing NRTLs under the prior NRTL Program Directive to the extent 
final decisions on those applications are published in the Federal 
Register prior to October 1, 2020. Assuming OSHA grants the expansion 
application, the NRTL will need to be in full compliance with the 
revised NRTL Program Directive, with respect to the NRTL's entire scope 
of recognition, no later than October 1, 2020. For example, if OSHA 
publishes a final decision on an expansion application in the Federal 
Register on September 30, 2020, then the NRTL will have to be in full 
compliance with the revised NRTL Program Directive, with respect to the 
NRTL's entire scope of recognition, no later than October 1, 2020.
     OSHA will evaluate pending expansion applications for 
existing NRTLs under the revised NRTL Program Directive to the extent 
final decisions on those applications are published in the Federal 
Register on or after October 1, 2020. Depending on the status of the 
application, OSHA may, in the discretion of the agency, waive certain

[[Page 7608]]

fees associated with the application to the extent accrual of those 
fees are due solely to OSHA's transition to the revised NRTL Program 
Directive. Assuming OSHA grants the expansion application, the NRTL 
will need to be in compliance with the revised NRTL Program Directive 
with respect to the NRTL's expanded scope immediately (i.e., on the 
date the final decision on the expansion application is published in 
the Federal Register).
     Audits and assessments of existing NRTLs conducted on or 
after October 1, 2019, will be conducted under the revised NRTL Program 
Directive. However, until October 1, 2020, items that OSHA would 
normally note as nonconformances with the revised NRTL Program 
Directive requiring timely response and correction will be noted as 
observations or long term corrective actions. While such observations 
and long term corrective actions will not require a response and 
correction in connection with the relevant audit or assessment, 
existing NRTLs will need to comply with the revised NRTL Program 
Directive no later than October 1, 2020.

II. OSHA's Proposed Transition Policy

    OSHA recognizes that immediate termination of the SNAP may cause an 
undue burden on some NRTLs with existing SNAP sites. OSHA therefore 
proposes the following policy to permit a smooth transition to SNAP 
termination for NRTLs with existing SNAP sites. Although OSHA is not 
required by the Administrative Procedures Act, 5 U.S.C. 551, et seq., 
to engage in notice and comment rulemaking procedures prior to the 
adoption and implementation of this proposed policy, OSHA is requesting 
public comment regarding the proposed policy in order to gain input and 
insight from interested parties.
    OSHA notes that, as of October 1, 2019 (the date OSHA issued the 
revised NRTL Program Directive), in accordance with current OSHA 
policy, OSHA will reject any application submitted by a NRTL or NRTL 
applicant-organization to be recognized for any of the previous 
supplemental programs, including SNAP. Under the proposed policy, SNAP 
would be entirely terminated one year after the date of publication of 
the Federal Register notice announcing OSHA's final decision on this 
proposed policy. Prior to that time, if a NRTL with existing SNAP sites 
followed the proposed procedures described in this Notice, that NRTL 
could continue to perform SNAP activities at the NRTL's existing SNAP 
sites (for a period, or periods, that would be established by this 
proposed policy, and ending no later than one year after the date of 
publication of the Federal Register notice announcing OSHA's final 
decision on this proposed policy). OSHA notes that the policies 
proposed in this Notice would supersede the policies contained in the 
Revised NRTL Program Directive Implementation Memorandum (discussed 
above), to the extent there is a conflict.
    Proposed Procedures for the Conversion of Existing SNAP Sites to 
Recognized Sites and the Interim Performance of SNAP Activities at SNAP 
Sites. OSHA proposes the following procedures to allow for the 
conversion of existing SNAP sites to NRTL-recognized sites under 29 CFR 
1910.7 and the interim performance of SNAP activities at SNAP sites:
    1. Preconditions of Eligibility. To meet the preconditions of 
eligibility, a NRTL would need to:
    a. Submit to OSHA a list of the NRTL's existing SNAP sites no later 
than the 30th day after the date of publication of the Federal Register 
notice announcing OSHA's final decision on this proposed policy. For 
each SNAP site listed, a NRTL would need to include the date the SNAP 
site was approved by the NRTL.
    b. Not designate any new SNAP sites after submitting to OSHA the 
list of existing SNAP sites.
    c. Submit to OSHA an application for scope expansion (i.e., to 
convert existing SNAP sites to recognized sites) no later than the 60th 
day after the date of publication of the Federal Register notice 
announcing OSHA's final decision on this proposed policy.
    d. Include in the scope expansion application a list of the SNAP 
sites the NRTL wants converted to recognized sites. The NRTL would be 
permitted to include in the scope expansion application list only those 
SNAP sites the NRTL also included in the list of SNAP sites it 
submitted to OSHA by the 30th day after the date of publication of the 
Federal Register notice announcing OSHA's final decision on this 
proposed policy.
    e. Specify that it wants the scope expansion application processed 
under the proposed procedures described here.
    f. Submit to OSHA all required application fees as outlined in the 
Revised NRTL Schedule of Fees. See https://www.osha.gov/dts/otpca/nrtl/nrtlfees.html. The following fees would need to accompany the scope 
expansion application: $2,490 for the Expansion application--Limited 
review; and $2,490 for each site for which the NRTL seeks recognition. 
(Other fees would be invoiced as necessary (for example the $3,180 fee 
for a Federal Register notice application, and fees for onsite 
assessments, if conducted)).
    g. At a minimum, submit to OSHA, for each SNAP site listed in the 
application, the following historical assessment records and supporting 
documentation:
    i. The NRTL functions performed at the SNAP site (testing, 
certification--audits of testing laboratories);
    ii. Copies of any audit or other reports of, or about, the SNAP 
site generated (either internally (e.g., by the NRTL) or externally 
(e.g., by OSHA or other accreditor)) in connection with any audits, 
assessments, or other investigations conducted (a) by OSHA, the NRTL, 
any other entity, and (b) within the 30 months preceding the date of 
publication of the Federal Register notice announcing OSHA's final 
decision on this proposed policy;
    iii. Supporting Documentation that shows (a) what was reviewed 
during any audits, assessments, or other investigations of the SNAP 
site conducted by OSHA, the NRTL, any other entity within the NRTL's 
organizational structure, or any other investigative body, and within 
the 30 months preceding the date of publication of the Federal Register 
notice announcing OSHA's final decision on this proposed policy, (b) 
any nonconformances identified during these audits, assessments, or 
investigations, and (c) a root cause analysis of these nonconformances; 
and
    iv. An organizational chart for the SNAP site identifying 
leadership and employees involved with NRTL-related work activities.
    2. Continued Performance of SNAP Activities at Existing SNAP Sites 
Contingent on Timely Submission of Documents.
    a. If a NRTL fails to timely submit to OSHA a list of the NRTL's 
existing SNAP sites (by the 30th day after the date of publication of 
the Federal Register notice announcing OSHA's final decision on this 
proposed policy), the NRTL would be required to cease performing SNAP 
activities at all of the NRTL's existing SNAP sites on the 31st day 
after the date of publication of the Federal Register notice announcing 
OSHA's final decision on this proposed policy.
    b. If a NRTL timely submits to OSHA a list of the NRTL's existing 
SNAP sites (by the 30th day after the date of publication of the 
Federal Register notice announcing OSHA's final decision on this 
proposed policy), but that list does not contain all of the NRTL's 
existing SNAP sites, the NRTL would be required to cease performing

[[Page 7609]]

SNAP activities at existing SNAP sites not contained in the list on the 
31st day after the date of publication of the Federal Register notice 
announcing OSHA's final decision on this proposed policy.
    c. If a NRTL timely submits to OSHA a list of the NRTL's existing 
SNAP sites (by the 30th day after the date of publication of the 
Federal Register notice announcing OSHA's final decision on this 
proposed policy), but does not submit to OSHA a timely application to 
convert the existing SNAP sites in the list to recognized sites (by the 
60th day after the date of publication of the Federal Register notice 
announcing OSHA's final decision on this proposed policy), then the 
NRTL would be required to cease performing SNAP activities at all of 
the NRTL's existing SNAP sites no later than the 61st day after the 
date of publication of the Federal Register notice announcing OSHA's 
final decision on this proposed policy.
    d. If a NRTL timely submits to OSHA a list of the NRTL's existing 
SNAP sites (by the 30th day after the date of publication of the 
Federal Register notice announcing OSHA's final decision on this 
proposed policy), and then submits to OSHA a timely application to 
convert only some of the existing SNAP sites in the list to recognized 
sites (by the 60th day after the date of publication of the Federal 
Register notice announcing OSHA's final decision on this proposed 
policy), then the NRTL would be required to cease performing SNAP 
activities at SNAP sites that the NRTL did not list in the application 
no later than the 61st day after the date of publication of the Federal 
Register notice announcing OSHA's final decision on this proposed 
policy.
    e. OSHA might allow for short extensions of these time limits, at 
the discretion of the agency, and if good cause is shown by the NRTL.
    3. Effect of Meeting the Preconditions of Eligibility. If a NRTL 
meets all the preconditions of eligibility for a SNAP site, it would be 
entitled to the following:
    a. Potential Streamlined Conversion. OSHA typically performs onsite 
assessments in connection with site expansion requests. However, OSHA 
might, at the discretion of the agency, opt not to do so with respect 
to SNAP sites that meet the preconditions of eligibility. Appendix A to 
the NRTL Program Regulation, 29 CFR 1910.7, provides that, in reviewing 
expansion applications, OSHA shall, as necessary, conduct an on-site 
review of the testing facilities of the applicant, and may decide not 
to conduct an on-site review, where the substantive scope of the 
request to expand recognition is closely related to the current area of 
recognition. Consistent with Appendix A, OSHA would make determinations 
as to whether on-site reviews are necessary on a case-by-case basis.
    b. Interim Performance of SNAP Activities at SNAP Sites. NRTLs 
would be permitted to continue performing SNAP functions, but only at 
the SNAP sites that are listed in the NRTL's application and that meet 
the preconditions of eligibility, and only for the time period(s) 
permitted by these proposed procedures.
    4. Review of Applications.
    a. To the extent SNAP sites in an application meet the 
preconditions of eligibility, OSHA would review that application, or 
portion of application, in accordance with the NRTL Program regulation, 
29 CFR 1910.7, Appendix A to that regulation, the Revised NRTL Program 
Directive Implementation Memorandum, discussed above, and these 
proposed SNAP conversion procedures, to determine the capability of the 
SNAP site to operate as a NRTL-recognized site. OSHA would base this 
determination on the documentation submitted with the application, 
historical on-site assessments of the NRTL's SNAP Sites and SNAP 
Headquarters, and any other factors it deems relevant, including, for 
example, the conduct of an on-site assessment(s), if deemed necessary.
    b. In reviewing applications, or portions of applications, 
concerning SNAP sites that do not meet the preconditions of 
eligibility, OSHA would follow normal site expansion procedures, 
including the conduct of on-site assessments. NRTLs should consult the 
NRTL Program regulation, 29 CFR 1910.7, Appendix A to that regulation, 
and the Revised NRTL Program Directive Implementation Memorandum, 
discussed above, for the procedures that OSHA would follow with respect 
to these SNAP sites.
    5. Opportunity to Respond (Discretionary) for NRTLs That Specify in 
Their Scope Expansion Applications That They Want Their Applications 
Processed Under the Proposed Procedures Described. Although a NRTL 
timely submits to OSHA a list of the NRTL's existing SNAP sites (by the 
30th day after the date of publication of the Federal Register notice 
announcing OSHA's final decision on this proposed policy), and then 
submits to OSHA a timely application to convert all or some of the 
NRTL's existing SNAP sites in the list to recognized sites (by the 60th 
day after the date of publication of the Federal Register notice 
announcing OSHA's final decision on this proposed policy), the NRTL 
might not meet one or more of the other preconditions of eligibility 
for some or all of the SNAP sites listed in the application. For 
example, a NRTL might fail to submit to OSHA the required historical 
assessments or supporting documentation for one or more of the SNAP 
sites listed in an application. In addition, to make a determination on 
an application, OSHA might require further information or 
clarification, in addition to the information that would be required by 
the preconditions of eligibility. Therefore, after conducting a review 
of a scope expansion application in which a NRTL specifies that it 
wants the application processed under the proposed procedures described 
here (Precondition of Eligibility (e)), OSHA might, at the discretion 
of the agency, give the NRTL 15 days to provide clarification or 
missing information.
    a. If OSHA receives a timely response from the applicant (within 15 
days), or a timely written request for an extension (within 15 days) 
and subsequent response within the time permitted for extension (if the 
request for extension is granted), OSHA would recommend a positive or 
negative finding on the application.
    b. Alternatively, OSHA would treat the application as a normal site 
expansion application, outside of these proposed procedures, if the 
NRTL requested in a timely-filed response that the application be 
treated as such. At this point (when the NRTL made the request), the 
NRTL would be required to immediately cease performing SNAP activities 
at the SNAP sites listed in the application.
    c. If OSHA does not receive a timely response, or a timely request 
for an extension and subsequent response within the time permitted for 
extension (if granted), it would consider the application withdrawn.
    6. Effect of a Negative Finding on an Application. If a negative 
finding is issued, the NRTL would have an opportunity (a) to withdraw 
the application, (b) revise the application (for example, to remove 
from the application those sites OSHA staff considers non-compliant, or 
to indicate that OSHA should process the application as a traditional 
application for site expansion rather than under these proposed 
procedures), or (c) request that the original application be forwarded 
to the Assistant Secretary for Occupational Safety and Health, as 
outlined in Appendix A to the NRTL Program regulation, 29 CFR 1910.7.

[[Page 7610]]

    7. Effect of Withdrawal of an Application Meeting the Preconditions 
of Eligibility. If the application is withdrawn by the applicant or 
considered withdrawn by OSHA, the NRTL would be required to immediately 
cease performing SNAP activities at the SNAP sites that were listed in 
the withdrawn application and met the preconditions of eligibility. 
While the NRTL could still apply to have these sites included in the 
NRTL's scope of recognition, OSHA would follow normal site expansion 
procedures, including the conduct of on-site assessments, for any such 
applications.
    8. Effect of the Revision of an Application Meeting the 
Preconditions of Eligibility. If the applicant revises the application 
to remove from the application individual SNAP sites listed in the 
application, the NRTL would be permitted to continue to perform SNAP 
activities only at those SNAP sites that remain in the application and 
meet the preconditions of eligibility. The applicant would be required 
to immediately cease performing SNAP activities at SNAP sites no longer 
in the application. While the NRTL could still apply for recognition of 
any sites removed from the application, OSHA would follow normal site 
expansion procedures, including the conduct of on-site assessments, for 
any such applications.
    9. Effect of Final Decision on Application Meeting the 
Preconditions of Eligibility. Once a final decision is made regarding 
the capability of a SNAP site to operate as a NRTL-recognized site, 
this decision would be published in the Federal Register, upon which 
time the NRTL would be required to immediately cease performing SNAP 
activities at the SNAP sites that were listed in the application and 
met the preconditions of eligibility.
    10. Termination of the SNAP Entirely. A NRTL would be required to 
cease performing SNAP activities at existing SNAP sites that were 
listed in the application and met the preconditions of eligibility one 
year after the date of publication of the Federal Register notice 
announcing OSHA's final decision on this proposed policy. This would be 
the case even if OSHA does not issue a final decision on the NRTL's 
application by that date. The SNAP would be entirely terminated one 
year after the date of publication of the Federal Register notice 
announcing OSHA's final decision on this proposed policy.
    11. Potential Extension of SNAP Termination Date. OSHA might, at 
the discretion of the agency, extend the SNAP termination date. OSHA 
notes that it would not extend the termination date because final 
decisions on some applications could not be issued on a streamlined 
basis. OSHA would not be able to issue a final decision on a 
streamlined basis, for example, if it determines that it needs to 
conduct an on-site assessment or a negative finding is issued in 
connection with an application. An extension of the SNAP termination 
date based on these time-intensive issues would not be justified.
    OSHA requests comment on this proposed policy. Comments should 
consist of pertinent written documents and exhibits. OSHA will review 
all comments submitted to the docket in a timely manner, and, after 
considering the issues raised by these comments, will make a 
recommendation to the Assistant Secretary for Occupational Safety and 
Health regarding this proposed policy for transitioning to the 
termination of SNAP, who will then make a final decision.
    OSHA will publish a public notice of this final decision in the 
Federal Register.

IV. Authority and Signature

    Loren Sweatt, Principal Deputy Assistant Secretary of Labor for 
Occupational Safety and Health, authorized the preparation of this 
notice. Accordingly, the agency is issuing this notice pursuant to 29 
U.S.C. 657(g)(2)), Secretary of Labor's Order No. 1-2012 (77 FR 3912, 
Jan. 25, 2012), and 29 CFR 1910.7.

    Signed at Washington, DC, on February 4, 2020.
Loren Sweatt,
Principal Deputy Assistant Secretary of Labor for Occupational Safety 
and Health.
[FR Doc. 2020-02564 Filed 2-7-20; 8:45 am]
 BILLING CODE 4510-26-P