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< Back to current issue of Immigration Daily

[Federal Register: August 4, 2011 (Volume 76, Number 150)]
[Notices]               
[Page 47243-47248]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04au11-104]                         

-----------------------------------------------------------------------

DEPARTMENT OF LABOR

Employment and Training Administration

 
Training and Employment Guidance (TEGL) Letter No. 15-06, Change 
1, Special Procedures: Labor Certification Process for Occupations 
Involved in the Open Range Production of Livestock Under the H-2A 
Program

AGENCY: Employment and Training Administration, Labor.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: The Employment and Training Administration (ETA) of the United 
States Department of Labor (Department) is publishing, for public 
information, notice of the issuance and availability of TEGL 15-06, 
Change 1 entitled, Special Procedures: Labor Certification Process for 
Occupations Involved in the Open Range Production of Livestock under 
the H-2A Program, signed on June 14, 2011, by Jane Oates, Assistant 
Secretary for Employment and Training Administration.

FOR FURTHER INFORMATION CONTACT: William L. Carlson, PhD, 
Administrator, Office of Foreign Labor Certification, ETA, U.S. 
Department of Labor, 200 Constitution Avenue, NW., Room C-4312, 
Washington, DC 20210; Telephone (202) 693-3010 (this is not a

[[Page 47244]]

toll-free number). Individuals with hearing or speech impairments may 
access the telephone number above via TTY by calling the toll-free 
Federal Information Relay Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION: 

Special Procedures: Labor Certification Process for Occupations 
Involved in the Open Range Production of Livestock Under the H-2A 
Program

    1. Purpose. To transmit special procedures, updated to reflect 
regulatory and organizational changes in the H-2A Program, for 
employers who apply to the Department of Labor (Department) to obtain 
labor certifications to hire temporary agricultural foreign workers in 
occupations involved in the open range production of livestock in the 
United States (U.S.).
    2. References.
     20 CFR part 655, subpart B;
     20 CFR part 653, subparts B and F;
     20 CFR part 654, subpart E;
     Training and Employment Guidance Letter (TEGL) No. 15-06, 
Special Procedures for Processing H-2A Applications for Occupations 
Involved in the Open Range Production of Livestock;
     ETA Handbook No. 385.
    3. Background. In 1986, Congress passed the Immigration Reform and 
Control Act of 1986 (IRCA) which amended the Immigration and 
Nationality Act (INA), 8 U.S.C. 1101, et seq., and established the H-2A 
program. In 1987, the Department issued an Interim Final Rule, 
promulgating the first H-2A regulations (the 1987 regulations) in 
accordance with IRCA. 54 FR 20496, Jun. 1, 1987. The 1987 regulations 
provided for the administration of the H-2A program by the ETA Regional 
Administrators, and instituted procedures to offset the adverse effects 
of immigration on U.S. workers. The 1987 regulations also established 
special procedures for certain occupations, as long as they did not 
deviate from the Secretary's statutory responsibility to determine U.S. 
worker availability and the adverse effect of foreign workers on the 
wages and working conditions of U.S. workers.
    Due to the unique characteristics of the open range production of 
livestock, the Department established special procedures for the 
processing of H-2A applications for certification of temporary 
employment in those occupations. These special procedures were 
contained most recently in the TEGL No. 15-06.
    The 1987 regulations remained in effect, largely unchanged, until 
the Department promulgated new H-2A regulations on December 18, 2008. 
73 FR 77110, Dec. 18, 2008 (the 2008 Final Rule). The 2008 Final Rule 
implemented an attestation-based application process and made several 
substantive changes to the program, but retained the special procedures 
concept. After the Department determined that the 2008 Final Rule did 
not meet H-2A program policy objectives, the Department commenced 
another rulemaking process culminating in the publication of new H-2A 
regulations on February 12, 2010. 75 FR 6884, Feb. 12, 2010 (the 2010 
Final Rule). The Final Rule implements changes that affect special 
procedures for the occupations involved in the open range production of 
livestock. Section 20 CFR 655.102 provides the Office of Foreign Labor 
Certification (OFLC) Administrator with the authority to establish, 
continue, revise or revoke special procedures for processing of certain 
H-2A applications, including those for occupations involved in the open 
range production of livestock, as long as those procedures do not 
deviate from the statutory requirements under the INA.
    This TEGL updates the special procedures previously established for 
occupations involved in the open range production of livestock to 
reflect organizational changes, in addition to new regulatory and 
policy objectives. It replaces previous guidance disseminated under 
TEGL No. 15-06, Special Procedures for Processing H-2A Applications for 
Occupations Involved in the Open Range Production of Livestock.
    4. Special Procedures. Attachment A outlines special procedures for 
labor certification applications submitted by employers for occupations 
involved in the open range production of livestock under the H-2A 
Program. Attachment B outlines standards for mobile housing applicable 
to occupations involved in the open range production of livestock under 
the H-2A Program. Unless otherwise specified in Attachments A and B, 
applications submitted for these occupations must comply with the 
requirements for processing H-2A applications contained at 20 CFR part 
655, subpart B. Similarly, unless otherwise specified, job orders 
submitted for these occupations must comply with the requirements of 20 
CFR parts 655, subpart B, 653, subparts B and F, and 654.
    5. Effective Date. This guidance applies to all temporary labor 
certification applications for occupations in the open range production 
of livestock in the H-2A Program with a start date of need on or after 
October 1, 2011.
    6. Action. The Chicago National Processing Center (Chicago NPC) 
Program Director and State Workforce Agency (SWA) Administrators are 
directed to immediately provide copies of these special procedures to 
all staff involved in processing H-2A labor certification applications 
from employers in the open range production of livestock occupations.
    7. Inquiries. Questions from SWA staff should be directed to the 
Chicago NPC. Questions from the Chicago NPC staff should be directed to 
the OFLC National Office.
    8. Attachment.
    Attachment A--Special Procedures: Labor Certification Process for 
Occupations Involved in the Open Range Production of Livestock Under 
the H-2A Program. See full text below.
    Attachment B--Standards for Mobile Housing Applicable to 
Occupations Involved in the Open Range Production of Livestock. See 
full text below.

Attachment A: Special Procedures: Labor Certification Process for 
Applications Involved in the Open Range Production of Livestock in the 
H-2A Program

    This document outlines special procedures for applications 
submitted by employers involved in the open range production of 
livestock under the H-2A Program. Unless otherwise specified in this 
attachment, applications submitted for open range livestock occupations 
must comply with the requirements for processing H-2A applications 
outlined in 20 CFR part 655, subpart B. Similarly, unless otherwise 
specified, job orders submitted for open range livestock occupations 
must comply with the requirements of 20 CFR parts 655, subpart B, 653, 
subparts B and F, and 654.

I. Prefiling Procedures

A. Offered Wage Rate (20 CFR 655.120(a))
    The Department is continuing a special variance to the offered wage 
rate requirements contained at 20 CFR 655.120(a). Because occupations 
involving the open range production of livestock are characterized by 
other than a reasonably regular workday or workweek, an employer must 
continue to offer, advertise in the course of its recruitment, and pay 
the monthly, weekly, or semi-monthly prevailing wage established by the 
OFLC Administrator for each State listed in an approved itinerary. In 
establishing the

[[Page 47245]]

offered wage rate for the range production of livestock, the Department 
uses findings from prevailing wage surveys conducted by SWAs in 
accordance with the procedures in the ETA Handbook No. 385. SWAs are 
required to transmit official wage rate findings covering the range 
production of livestock to the OFLC between May 1st and June 1st of 
each calendar year. Following a review of the SWA wage rate findings, 
the OFLC will publish the new agricultural prevailing wage rates in a 
Federal Register notice with an immediate effective date.
    SWA wage rate findings will continue to establish monthly, weekly, 
or semi-monthly prevailing wages for a statewide or other geographical 
area in a manner that is consistent with the wage setting procedures 
applied to sheepherder occupations in the Western States. In 
circumstances where a SWA is unable to produce a wage rate finding for 
an occupation, due to an inadequate sample size or another valid 
reason, the wage setting procedures allow the OFLC to continue to issue 
a prevailing wage rate for that State based on the wage rate findings 
submitted by an adjoining or proximate SWA for the same or similar 
agricultural activities.
    If the OFLC cannot establish a prevailing wage rate by using 
comparable survey data from an adjoining or proximate SWA, the OFLC 
will give consideration to aggregating survey data for the range 
production of livestock activities across States to create regional 
prevailing wage rates. When regional prevailing wages are considered, 
the OFLC may use the U.S. Department of Agriculture's (USDA) production 
or farm resource regions or other groupings of States used to conduct 
the USDA Farm Labor Survey.
B. Job Orders and SWA Review (20 CFR 655.121)
    An employer engaged in the range production of livestock is allowed 
to submit a single Agricultural and Food Processing Clearance Order, 
ETA Form 790 (job order), Office of Management and Budget (OMB) 1205-
0134, and all appropriate attachments covering a planned itinerary of 
work in multiple States. If the job opportunity is located in more than 
one State, either within the same area of intended employment or 
multiple areas of intended employment, the employer must submit the job 
order and all attachments (including a detailed itinerary) to the SWA 
having jurisdiction over the anticipated worksite(s) where the work is 
expected to begin. The employer must submit the job order no more than 
75 calendar days and no less than 60 calendar days before the 
employer's first date of need.
    Unless otherwise specified in these special procedures, the job 
order submitted to the SWA must satisfy the requirements for 
agricultural clearance orders outlined in 20 CFR part 653, subpart F 
and the requirements set forth in 20 CFR 655.122. The SWA will review 
the job order for regulatory compliance and will work with the employer 
to address any noted deficiencies. Upon its clearance of the job order, 
the SWA must promptly place the job order in intrastate clearance and 
commence recruitment of U.S. workers.
    The job order shall remain active until 50 percent of the work 
contract period has elapsed for all SWAs in possession of the 
employer's job order (including those receiving it in interstate 
clearance under 20 CFR 655.150), unless otherwise advised by the 
Chicago NPC.
C. Contents of Job Offers (20 CFR 655.122)
    Unless otherwise specified in this section, the content of job 
offers submitted to the SWAs and the Chicago NPC for occupations 
involved in the open range production of livestock must comply with all 
of the requirements of 20 CFR parts 655, subpart B, 653, subparts B and 
F, and 654.
    1. Job duties, qualifications and requirements.
    Job duties. Based on the current industry practice, the SWAs may 
rely on the following standard description of the job duties for a job 
opportunity in the open range livestock production industry:
    Perform any combination of the following tasks to attend to 
livestock on the open range: feeds and waters livestock; herds 
livestock to pasture for grazing; examines animals to detect diseases 
and injuries; assists with the vaccination of livestock by herding into 
corral and/or stall or manually restraining animal on the range; 
applies medications to cuts and bruises; sprays livestock with 
insecticide; assists with castration of livestock; clips identifying 
notches on or brands animals; may assist with irrigating, planting, 
cultivating, and harvesting hay. Workers must be able to ride and 
handle horses in a manner to assure the safety of the worker, co-
workers, and livestock. Must be able to find and maintain bearings to 
grazing areas. Must be willing and able to occasionally live and work 
independently or in small groups of workers in isolated areas for 
extended periods of time.
    Any additional job duties must be normal and accepted for the 
occupation, and the SWA and Chicago NPC have the authority to request 
supporting documentation substantiating the appropriateness of the 
duties prior to accepting the job order. Additionally, the SWA or 
Chicago NPC may request modifications to the job duties if additional 
information, such as climatic conditions and/or the size of herd, 
necessitates the use of pack and saddle horses to reach the range, in 
order to fully apprise U.S. workers of the nature of the work to be 
performed.
    Experience. Due to the unique nature of the work to be performed, 
the job offer may specify that applicants possess up to 6 months of 
experience in similar occupations involving the range tending or 
production of livestock covering multiple seasons and may require 
reference(s) to verify experience in performing these activities. 
Applicants must provide the name, address, and telephone number of any 
previous employer being used as a reference. The appropriateness of any 
other experience requirements must be substantiated by the employer and 
approved by the Chicago NPC.
    Hours. The description of anticipated hours of work must show ``on 
call for up to 24 hours per day, 7 days per week'' in the job order. If 
an application filed for an open range livestock worker does not 
include the requirements of being on call 24 hours per day, 7 days per 
week, the Chicago NPC may not process the employer's application under 
the special procedures enumerated in this TEGL, and must instead 
require compliance with all the requirements of the H-2A regulations 
outlined in 20 CFR part 655, subpart B.
    2. Housing. The employer must state in its job order that 
sufficient housing will be provided at no cost to H-2A workers and any 
workers in corresponding employment who are not reasonably able to 
return to their residence within the same day. Except for long-
established standards for mobile housing in Attachment B, all employer-
provided housing must comply with requirements set out in 20 CFR 
655.122(d) for the entire period of occupancy. An employer whose 
itinerary requires mobile housing may provide mobile housing to its 
workers.
    3. Workers' compensation. The employer must provide workers' 
compensation insurance coverage as described in 20 CFR 655.122(e) in 
all States where open range work will be performed. Prior to the 
issuance of the Temporary Labor Certification, the employer must 
provide the Certifying Officer (CO) with proof of workers' compensation 
coverage, including the name of the insurance carrier, the insurance 
policy number, and proof of

[[Page 47246]]

insurance for the dates of need, or if appropriate, proof of State law 
coverage for each State where the open range work will be performed. In 
the event that the current coverage will expire before the end of the 
certified work contract period or the insurance statement does not 
include all of the regulatory information required under the 
regulations at 20 CFR 655.122(e), the employer will be required to 
supplement its proof of workers' compensation for that State before a 
final determination is due. Where the employer's coverage will expire 
before the end of the certified work contract period, the employer may 
submit as proof of renewed coverage a signed and dated statement or 
letter showing proof of intent to renew and maintain coverage for the 
dates of need. The employer must maintain evidence that its workers' 
compensation was renewed, in the event the Department requests it.
    4. Employer-provided items. Due to the remote and unique nature of 
the work to be performed, the employer must also specify in the job 
order and provide at no cost to workers an effective means of 
communicating with persons capable of responding to the worker's needs 
in case of an emergency. These means are necessary to perform the work 
and can include, but are not limited to, satellite phones, cell phones, 
wireless devices, radio transmitters, or other types of electronic 
communication systems.
    5. Earnings records and statements. The employer must keep accurate 
and adequate records with respect to the workers' earnings and furnish 
to the worker on or before each payday a statement of earnings. Because 
the unique circumstances of employing range livestock workers (i.e., on 
call 24/7 in remote locations) prevent the monitoring and recording of 
hours actually worked each day as well as the time the worker began and 
ended each workday, the employer is exempt from reporting on these two 
specific requirements at 20 CFR 655.122(j) and (k). However, all other 
regulatory requirements related to earnings records and statements 
apply.
    6. Frequency of pay. Consistent with 20 CFR 655.122(m), the 
employer must state in the job offer the frequency with which the 
worker will be paid, which must be at least twice monthly or according 
to the prevailing practice in the area of intended employment, 
whichever is more frequent. Due to the unique circumstances of 
employing range livestock workers, the employer may, upon mutual 
agreement with the worker, pay the worker once per month as long as the 
monthly payment arrangement is reflected in the job offer and work 
contract, if any. Employers must pay wages when due.

II. Application for Temporary Employment Certification Filing 
Procedures

    Application Filing Requirements (20 CFR 655.130). An individual 
employer that desires to apply for temporary employment certification 
for one or more nonimmigrant workers must file the following 
documentation with the Chicago NPC no less than 45 calendar days before 
the employer's date of need:
     ETA Form 9142 (OMB 1205-0466), Application for Temporary 
Employment Certification, and Appendix A.2;
     Copy of the ETA Form 790 and all attachments previously 
submitted to the SWA;
     A planned itinerary listing the names and contact 
information of all farmers/ranchers and identifying, with as much 
geographic specificity as possible and for each farmer/rancher, all of 
the physical locations and estimated start and end dates of need where 
work will be performed; and
     All other required documentation supporting the 
application.

Attachment B: Standards for Mobile Housing Applicable to Occupations 
Involved in the Open Range Production of Livestock

I. Procedures

    Occupations involving the open range production of livestock 
generally require workers to live in remote housing of a mobile nature, 
rather than ``a fixed-site farm, ranch or similar establishment.'' This 
type of housing is typically referred to as mobile housing. For 
purposes of these special procedures, mobile housing is any housing 
that is capable of being moved from one area on the open range to 
another. The employer must provide housing at no cost to the H-2A 
workers and those workers in corresponding employment who are not 
reasonably able to return to their residence within the same day.
    Where housing for work performed on the range is provided, the 
regulations at 20 CFR 655.122(d)(2) require that such housing meet 
standards of the DOL Occupational Safety and Health Administration 
(OSHA). In the absence of such standards, range housing for 
sheepherders and other workers engaged in the range production of 
livestock must meet guidelines issued by OFLC. Due to the fact that 
OSHA standards currently do not cover mobile housing, Section II of 
this attachment establishes the standards for determining the adequacy 
of employer-provided mobile housing for use on a range. However, any 
other type of housing, used by an employer to house workers engaged in 
open range production of livestock activities, must meet the standards 
applicable to such housing under 20 CFR 655.122(d).
    Both mobile housing and fixed-site farm or ranch housing may be 
self-certified by an employer. Employers must submit a signed statement 
to the SWA and the Chicago NPC with the application for labor 
certification assuring that the housing is available, sufficient to 
accommodate the number of workers being requested, and meets all 
applicable standards.
    SWAs must develop and implement a schedule which ensures that each 
employer's self-certified housing is inspected no less frequently than 
at least once every 3 years. These inspections may be performed either 
before or after a request is submitted for nonimmigrant livestock 
workers on the open range. Before referring a worker who is entitled to 
such housing, the SWA office must ensure that the housing is available 
and has been inspected in accordance with the inspection schedule. If 
the SWA determines that an employer's housing cannot be inspected in 
accordance with the inspection schedule or, when it is inspected, does 
not meet all the applicable standards, the Chicago NPC may deny the H-
2A application in full or in part or require additional inspections in 
order to satisfy the regulatory requirement.

II. Mobile Housing Standards

    An employer may use a mobile unit, camper, or other similar mobile 
vehicle for housing workers that meets the following standards:
A. Housing Site
    Mobile housing sites shall be well drained and free from 
depressions in which water may stagnate.
B. Water Supply
    1. An adequate and convenient supply of water that meets standards 
of the State health authority shall be provided. The amount of water 
provided must be enough for normal drinking, cooking, and bathing needs 
of each worker; and
    2. Individual drinking cups shall be provided.
C. Excreta and Liquid Waste Disposal
    1. Facilities shall be provided and maintained for effective 
disposal of excreta and liquid waste in accordance with requirements of 
the State health

[[Page 47247]]

authority or involved Federal agency; and
    2. If pits are used for disposal by burying of excreta and liquid 
waste, they shall be kept fly-tight when not filled in completely after 
each use. The maintenance of disposal pits must be in accordance with 
State and local health and sanitation requirements.
D. Housing Structure
    1. Housing shall be structurally sound, in good repair, in sanitary 
condition and shall provide protection to occupants against the 
elements;
    2. Housing, other than tents, shall have flooring constructed of 
rigid materials easy to clean and so located as to prevent ground and 
surface water from entering;
    3. Each housing unit shall have at least one window which can be 
opened or skylight opening directly to the outdoors; and
    4. Tents may be used where terrain and/or land regulations do not 
permit use of other more substantial mobile housing which provides 
facilities and protection closer in conformance with the Department's 
intent.
E. Heating
    1. Where the climate in which the housing will be used is such that 
the safety and health of a worker requires heated living quarters, all 
such quarters shall have properly installed operable heating equipment 
which supplies adequate heat. In considering whether the heating 
equipment is acceptable, the Chicago NPC shall first determine if the 
housing will be located in a National Forest Wilderness Section as 
specified in the Wilderness Act (16 U.S.C. 1131-1136). Such a location 
has a bearing on the type of equipment practicable, and whether any 
heavy equipment can be used. For example, the Wilderness Act (16 U.S.C. 
1133(c)) restricts certain motorized or mechanical transport on certain 
roads in wilderness areas. The U.S. Forest Service has regulations for 
this at 36 CFR part 293. Aside from the above, other factors to 
consider in evaluating heating equipment are the severity of the 
weather and the types of protective clothing and bedding made available 
to the worker. If the climate in which the housing will be used is mild 
and not reasonably expected to drop below 50 degrees Fahrenheit 
continuously for 24 hours, no separate heating equipment is required if 
proper protective clothing and bedding are made available;
    2. Any stoves or other sources of heat using combustible fuel shall 
be installed and vented in such a manner as to prevent fire hazards and 
a dangerous concentration of gases. Portable electrical heaters may be 
used, and if approved by Underwriters' Laboratory, kerosene heaters may 
be used according to manufacturer's instructions. If a solid or liquid 
fuel stove is used in a room with wooden or other combustible flooring, 
there shall be a concrete slab, insulated metal sheet, or other 
fireproof material on the floor under each stove, extending at least 18 
inches beyond the perimeter of the base of the stove;
    3. Any wall or ceiling within 18 inches of a solid or liquid fuel 
stove or stove pipe shall be made of fireproof material. A vented metal 
collar shall be installed around a stovepipe or vent passing through a 
wall, ceiling, floor or roof; and
    4. When a heating system has automatic controls, the controls shall 
be of the type which cuts off the fuel supply when the flame fails or 
is interrupted or whenever a predetermined safe temperature or pressure 
is exceeded.
F. Lighting
    1. In areas where it is not feasible to provide electrical service 
to mobile housing, including tents, lanterns shall be provided 
(kerosene wick lights meet the definition of lantern); and
    2. Lanterns, where used, shall be provided in a minimum ratio of 
one per occupant of each unit, including tents.
G. Bathing, Laundry and Hand Washing
    Movable bathing, laundry and hand washing facilities shall be 
provided when it is not feasible to provide hot and cold water under 
pressure.
H. Food Storage
    When mechanical refrigeration of food is not feasible, the worker 
must be provided with another means of keeping food fresh and 
preventing spoilage, such as a butane or propane gas refrigerator. 
Other proven methods of safeguarding fresh foods, such as salting, are 
acceptable.
I. Cooking and Eating Facilities
    1. When workers or their families are permitted or required to cook 
in their individual unit, a space shall be provided with adequate 
lighting and ventilation; and
    2. Wall surfaces next to all food preparation and cooking areas 
shall be of nonabsorbent, easy to clean material. Wall surfaces next to 
cooking areas shall be of fire-resistant material.
J. Garbage and Other Refuse
    1. Durable, fly-tight, clean containers shall be provided to each 
housing unit, including tents, for storing garbage and other refuse; 
and
    2. Provision shall be made for collecting or burying refuse, which 
includes garbage, at least twice a week or more often if necessary. 
Refuse disposal shall conform to Federal, State, or local law, 
whichever applies.
K. Insect and Rodent Control
    Appropriate materials, including sprays, must be provided to aid 
housing occupants in combating insects, rodents and other vermin.
L. Sleeping Facilities
    A separate sleeping unit shall be provided for each person, except 
in a family arrangement. Such a unit shall include a comfortable bed, 
cot, or bunk with a clean mattress. When filing an application for 
certification and only where it is demonstrated to the Certifying 
Officer that is impractical to set up a second sleeping unit, the 
employer may request a variance from the separate sleeping unit 
requirement to allow for a second worker to temporarily join the open 
range operation. The second worker may be temporarily housed in the 
same sleeping unit for no more than three consecutive days and the 
employer must supply a sleeping bag or bed roll free of charge.
M. Fire, Safety and First Aid
    1. All units in which people sleep or eat shall be constructed and 
maintained according to applicable State or local fire and safety law;
    2. No flammable or volatile liquid or materials shall be stored in 
or next to rooms used for living purposes, except for those needed for 
current household use;
    3. Mobile housing units for range use must have a second means of 
escape. One of the two required means of escape must be a window which 
can be easily opened, a hutch, or other provision. It must be 
demonstrated that the custom combine worker would be able to crawl 
through the second exit without difficulty;
    4. Tents are not required to have a second means of escape, except 
when large tents with walls of rigid material are used. A heater may be 
used in a tent if the heater is approved by a testing service, such as 
Underwriters' Laboratory, and if the tent is fireproof; and
    5. Adequate fire extinguishers in good working condition and first 
aid kits shall be provided in the mobile housing.


[[Page 47248]]


    Signed in Washington, DC this 29 day of July 2011.
Jane Oates,
Assistant Secretary for Employment and Training Administration.
[FR Doc. 2011-19754 Filed 8-3-11; 8:45 am]
BILLING CODE 4510-FP-P



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