Partition, Disaggregation, and Leasing of Spectrum

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Published

September 20, 2022

Effective

October 20, 2022

Issuing agencies

Federal Communications Commission

Abstract

In this document, a Second Further Notice of Proposed Rulemaking (Second FNPRM) seeks comment on whether potential future expansion of the Enhanced Competition Incentive Program (ECIP) for wireless services could further the Congressional goals set out in the Making Opportunities for Broadband Investment and Limiting Excessive and Needless Obstacles to Wireless Act (MOBILE NOW Act). It also proposes a framework for creating alternatives to population-based performance requirements for a variety of wireless radio service stakeholders with communications plans and business models not specifically targeted towards providing commercial wireless service to subscribers. It seeks specific comment on these proposals and a variety of alternatives to develop a robust record on the most efficient approach towards addressing this industry goal. The Second FNPRM also seeks comment on how the proposals in the Second FNPRM may promote or inhibit advances in diversity, equity, inclusion, and accessibility, as well the scope of the Commission's relevant legal authority.

Full Text

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<title>Federal Register, Volume 87 Issue 181 (Tuesday, September 20, 2022)</title>
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[Federal Register Volume 87, Number 181 (Tuesday, September 20, 2022)]
[Proposed Rules]
[Pages 57447-57451]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-17519]

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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[WT Docket No. 19-38; FCC 22-53; FR ID 99880]

Partition, Disaggregation, and Leasing of Spectrum

AGENCY: Federal Communications Commission.

ACTION: Proposed rule; request for comments.

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SUMMARY: In this document, a Second Further Notice of Proposed
Rulemaking (Second FNPRM) seeks comment on whether potential future
expansion of the Enhanced Competition Incentive Program (ECIP) for
wireless services could further the Congressional goals set out in the
Making Opportunities for Broadband Investment and Limiting Excessive
and Needless Obstacles to Wireless Act (MOBILE NOW Act). It also
proposes a framework for creating alternatives to population-based
performance requirements for a variety of wireless radio service
stakeholders with communications plans and business models not
specifically targeted towards providing commercial wireless service to
subscribers. It seeks specific comment on these proposals and a variety
of alternatives to develop

[[Page 57448]]

a robust record on the most efficient approach towards addressing this
industry goal. The Second FNPRM also seeks comment on how the proposals
in the Second FNPRM may promote or inhibit advances in diversity,
equity, inclusion, and accessibility, as well the scope of the
Commission's relevant legal authority.

DATES: Interested parties may file comments on or before October 20,
2022; and reply comments on or before November 21, 2022.

ADDRESSES: You may submit comments, identified by WT Docket No. 19-38,
by any of the following methods:
<bullet> Electronic Filers: Comments may be filed electronically
using the internet by accessing the Commission's Electronic Comment
Filing System (ECFS): <a href="https://apps.fcc.gov/ecfs/">https://apps.fcc.gov/ecfs/</a>.
<bullet> Paper Filers: Parties who choose to file by paper must
file an original and one copy of each filing.
Filings can be sent by commercial overnight courier, or by first-
class or overnight U.S. Postal Service mail. All filings must be
addressed to the Commission's Secretary, Office of the Secretary,
Federal Communications Commission.
<bullet> Commercial overnight mail (other than U.S. Postal Service
Express Mail and Priority Mail) must be sent to 9050 Junction Drive,
Annapolis Junction, MD 20701.
<bullet> U.S. Postal Service first-class, Express, and Priority
mail must be addressed to 45 L Street NE, Washington, DC 20554.
<bullet> Effective March 19, 2020, and until further notice, the
Commission no longer accepts any hand or messenger delivered filings.
This is a temporary measure taken to help protect the health and safety
of individuals, and to mitigate the transmission of COVID-19. See FCC
Announces Closure of Headquarters Open Window and Change in Hand-
Delivery Policy, Public Notice, DA 20-304 (March 19, 2020). <a href="https://www.fcc.gov/document/fcccloses-headquarters-open-window-andchanges-hand-delivery-policy">https://www.fcc.gov/document/fcccloses-headquarters-open-window-andchanges-hand-delivery-policy</a>.
People with Disabilities: To request materials in accessible
formats for people with disabilities (Braille, large print, electronic
files, audio format), send an email to <a href="/cdn-cgi/l/email-protection#e4a2a7a7d1d4d0a4828787ca838b92">[email&#160;protected]</a> or call the
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (TTY).

FOR FURTHER INFORMATION CONTACT: Katherine Patsas Nevitt of the
Wireless Telecommunications Bureau, Mobility Division, at (202) 418-
0638 or <a href="/cdn-cgi/l/email-protection#d299b3a6bab7a0bbbcb7fc9cb7a4bba6a692b4b1b1fcb5bda4">[email&#160;protected]</a>. For information concerning the
Paperwork Reduction Act of 1995 (PRA) information collection
requirements contained in the Second FNPRM, contact Cathy Williams,
Office of Managing Director, at (202) 418-2918 or
<a href="/cdn-cgi/l/email-protection#672406130f1e49300e0b0b0e060a142701040449000811">[email&#160;protected]</a> or email <a href="/cdn-cgi/l/email-protection#5d0d0f1c1d3b3e3e733a322b">[email&#160;protected]</a>.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Second
Further Notice of Proposed Rulemaking (Second FNPRM) in WT Docket No.
19-38, FCC 22-53, adopted July 14, 2022 and released July 18, 2022. The
full text of this document, including all Appendices, is available for
inspection and viewing via the Commission's website at <a href="https://docs.fcc.gov/public/attachments/FCC-22-53A1.pdf">https://docs.fcc.gov/public/attachments/FCC-22-53A1.pdf</a> or ECFS by entering the
docket number, WT Docket No. 19-38. Alternative formats are available
for people with disabilities (Braille, large print, electronic files,
audio format), by sending an email to <a href="/cdn-cgi/l/email-protection#a5e3e6e6909591e5c3c6c68bc2cad3">[email&#160;protected]</a> or calling the
Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice),
(202) 418-0432 (TTY).
This proceeding shall continue to be treated as a ``permit-but-
disclose'' proceeding in accordance with the Commission's ex parte
rules (47 CFR 1.1200 through 1.1216). Persons making ex parte
presentations must file a copy of any written presentation or a
memorandum summarizing any oral presentation within two business days
after the presentation (unless a different deadline applicable to the
Sunshine period applies). Persons making oral ex parte presentations
are reminded that memoranda summarizing the presentation must (1) list
all persons attending or otherwise participating in the meeting at
which the ex parte presentation was made, and (2) summarize all data
presented and arguments made during the presentation. If the
presentation consisted in whole or in part of the presentation of data
or arguments already reflected in the presenter's written comments,
memoranda or other filings in the proceeding, the presenter may provide
citations to such data or arguments in his or her prior comments,
memoranda, or other filings (specifying the relevant page and/or
paragraph numbers where such data or arguments can be found) in lieu of
summarizing them in the memorandum. Documents shown or given to
Commission staff during ex parte meetings are deemed to be written ex
parte presentations and must be filed consistent with rule Sec.
1.1206(b). In proceedings governed by rule Sec. 1.49(f) or for which
the Commission has made available a method of electronic filing,
written ex parte presentations and memoranda summarizing oral ex parte
presentations, and all attachments thereto, must be filed through the
electronic comment filing system available for that proceeding, and
must be filed in their native format (e.g., .doc, .xml, .ppt,
searchable .pdf). Participants in this proceeding should familiarize
themselves with the Commission's ex parte rules.

Initial Paperwork Reduction Analysis

This document contains proposed information collection
requirements. The Commission, as part of its continuing effort to
reduce paperwork burdens, invites the general public and the Office of
Management and Budget (OMB) to comment on the information collection
requirements contained in this document, as required by the Paperwork
Reduction Act of 1995, Public Law 104-13. In addition, pursuant to the
Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44
U.S.C. 3506(c)(4), the Commission seeks specific comment on how it
might further reduce the information collection burden for small
business concerns with fewer than 25 employees.

Initial Regulatory Flexibility Act Analysis

As required by the Regulatory Flexibility Act of 1980 (RFA), the
Commission has prepared an Initial Regulatory Flexibility Analysis
(IRFA) of the possible significant economic impact on small entities of
the policies and rules proposed in the Second FNPRM. It requests
written public comment on the IRFA, contained at Appendix C to the
Second FNPRM. Comments must be filed in accordance with the same
deadlines as comments filed in response to the Second FNPRM as set
forth on the first page of this document, and have a separate and
distinct heading designating them as responses to the IRFA. The
Commission's Consumer and Governmental Affairs Bureau, Reference
Information Center, will send a copy of the Second FNPRM, including the
IRFA, to the Chief Counsel for Advocacy of the Small Business
Administration.

Synopsis

A. ECIP Eligibility Expansion

The Second FNPRM seeks comment on whether to expand eligibility
under the small carrier or Tribal Nation transaction prong of the ECIP
to other entities. The initial Notice of Proposed Rulemaking (NPRM) was
released on March 15, 2019, which initiated this

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proceeding as directed by Congress to assess whether potential changes
to the Commission's partitioning, disaggregation, and leasing rules
might provide spectrum access to covered small carriers or promote the
availability of advanced telecommunications services in rural areas.
Partitioning, Disaggregation, and Leasing of Spectrum, Notice of
Proposed Rulemaking, WT Docket No. 19-38, 84 FR 12566, April 2, 2019,
34 FCC Rcd 1758 (2019) (NPRM). On November 18, 2021, the Commission
released a Further Notice of Proposed Rulemaking (FNPRM) that proposed
an enhanced competition incentive program. Separate from the incentive
program, the FNPRM sought comment on potential alternatives to
population-based performance requirements and the feasibility of
implementing use or share models for opportunistic spectrum use.
Partitioning, Disaggregation, and Leasing of Spectrum, Further Notice
of Proposed Rulemaking, WT Docket No. 19-38, 86 FR 74024, December 29,
2021, FCC 21-120 (Nov. 19, 2022) (FNRPM). In response, one commenter
proposed an expansion of eligibility, beyond small carriers and Tribal
Nations, to include certain non-common carriers in the first
transaction prong of the ECIP. Wireless internet Service Providers
Association (WISPA) Comments at 3-5. The Second FNPRM seeks comment on
whether expanding eligibility using our general Title III powers would
advance Congressional and Commission goals of facilitating broad
deployment of advanced spectrum-based services. Is there a reason that
Congress in the MOBILE NOW Act limited the scope of entities that we
were directed to consider to those with common-carrier obligations? If
we should expand eligibility beyond that called for in the MOBILE NOW
Act, what is the appropriate vehicle for expanding eligibility in the
small carrier or Tribal Nation transaction prong of the ECIP? Should we
create a distinct eligibility designation for non-common carriers as we
have done for Tribal Nations?
In considering eligibility expansion, we seek comment on two
threshold issues: (1) how to define the specific category of eligible
non-common carriers; and (2) what objective measure to determine
relative small size is appropriate in this context. WISPA proposed two
specific metrics for determining the scope of expansion of eligible
entities in the ECIP, including whether an entity: (1) has filed an FCC
Form 477 for census blocks that overlap or are adjacent to the license
area to be disaggregated, partitioned or leased for at least the two
calendar years preceding the transaction; and (2) together with its
controlling interests, affiliates, and the affiliates of its
controlling interests, has fewer than 250,000 combined wireless,
wireline, broadband, and cable subscribers. WISPA Comments at 5. We
seek comment on these metrics and whether they strike the appropriate
balance in the potential range of expansion, including how these
limitations relate to the goals of the program. If not, is there an
alternate standard for determining which non-common carriers should be
eligible that would achieve the Commission's goals? We note that the
Commission has used the 250,000 subscriber benchmark for determining
small providers in other contexts, and for determining rural service
providers eligibility for a bidding credit in certain spectrum
auctions, and we seek comment on whether subscriber count, as opposed
to employee numbers, would be an appropriate measure of size for
purposes of participation in ECIP as a small entity. The Commission has
previously used the 250,000 subscriber benchmark as evidence of being a
small communications provider. See Small Business Exemption from Open
internet Enhanced Transparency Requirements, GN Docket No. 14-28,
Order, 32 FCC Rcd 1772, 1772, para. 1 (2017). The House and the Senate
Committee on Commerce, Science and Transportation have also passed
bills using the 250,000 subscriber benchmark to designate small
broadband providers. See Small Business Broadband Deployment Act, H.R.
4596, 114th Cong. section 2(d)(2) (2016); Small Business Broadband
Deployment Act, S. 2283, 114th Cong. section 2(a)(4). The Commission
has also used the 250,000 subscriber benchmark as a metric for entities
to qualify for the rural service provider bidding credit in certain
spectrum auctions. 47 CFR 1.2110(f)(4)(i) (defining an eligible rural
service provider as having, together wireless, wireline, broadband, and
cable subscribers and serving predominantly rural areas); Updating Part
1 Competitive Bidding Rules, WT Docket No. 14-170, Report and Order, 80
FR 56764, September 18, 2015, 30 FCC Rcd 7493, 7534-7535, para. 98
(2015). Typically, absent Small Business Administration approval for a
different size standard, the Commission would consider a wireless
provider to be small if it has 1,500 or fewer employees. See 13 CFR
121.201, North American Industry Classification System (NAICS) Code
517312. Is there an alternate approach for determining whether a non-
common carrier is considered sufficiently small for purposes of ECIP?
Are there alternate proposals that we should consider for expanding
eligibility to non-common carriers or any other class of users? If
commenters believe an alternative proposal merits consideration, they
should describe with specificity the precise proposal for expansion of
eligibility in the small carrier or Tribal Nation transaction prong,
the effects of applying any rule changes to entities that are non-
common carriers, whether or not the Commission should adjust rules to
better meet the goals in this proceeding of facilitating secondary
markets transactions, and the costs and benefits of such an approach.

B. Alternative to Population-Based Construction Requirements

The Second FNPRM seeks further comment on, and proposes a structure
for, the establishment of an alternate construction requirement and
renewal standard for wireless radio service (WRS) licensees with
communications needs less suited to population-based requirements. In
most auctioned flexible services, licensees are required to meet
population coverage performance benchmarks at an interim and final
stage, which results in not having to provide signal coverage and
service over the entire geographic area of the license. We note that
the Commission has departed from providing the ``substantial service''
option that was available to many licensees as an alternative to
population coverage in certain services, in large part because the
subjective nature of the term ``substantial'' created uncertainty over
both its fulfillment and enforcement. Commenters generally supported
adoption of alternate requirements that were flexible and tailored to
the unique needs and challenges of the applicable geographic area or
entity, but advanced limited specific proposals beyond advocating a
metric of less than 100 percent coverage. Additionally, while the
record puts forward various general safe-harbor proposals, none of
these proposals provide more certainty or objectivity than the
``substantial service'' standard. To facilitate industry-requested
regulatory certainty, we seek further comment on specific details and
potential real-world application of an alternative safe harbor and
appropriate metrics that will balance the industry's desire for
certainty while not resulting in spectrum lying fallow.
Alternate Requirement for Private Networks. We note that commenters
described the need for alternative requirements in cases where a
licensee is putting spectrum to use for private,

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internal radio communications associated with its business functions.
We acknowledge that, in these instances, the geographic area of the
license might be more expansive than the desired area of operation, and
that a population-based construction metric might not align with the
intended area of operation, increasing the difficulty in meeting
population coverage requirements. In addition, such licensees would
need to meet not only construction requirements in the initial license
term, but also the renewal requirements. In cases where licenses are
obtained in the secondary market, renewal safe harbors may not be
available to this type of licensee, potentially resulting in a chilling
of potential transactions based on the uncertainty as to whether
renewal obligations can be met.
We recognize that an alternative approach may benefit parties
acquiring a license in the secondary market, which in many cases might
occur after an interim performance benchmark is met, but prior to the
end of term performance benchmark and/or renewal deadline. To benefit
licensees seeking to meet private communications needs, we propose, and
seek further comment on, an alternate, demand-based construction
requirement. We propose to modify our renewal safe harbor to include
``demand-based initial construction.'' We also propose that, to meet
the alternate construction requirement and to qualify for the modified
renewal safe harbor, the licensee must show that its licensed area is
entirely covered through the sum of the following three zones: a core
usage zone, an expansion zone, and a protection zone.
We propose that the network must include a core usage zone where
all the spectrum is actively used to meet private, internal
communications needs. We expect that the licensed area subject to an
alternative benchmark will vary in size, depending on, for example,
whether the license was acquired through auction or through partition
and/or disaggregation. We thus do not propose a standard minimum or
maximum size for this core usage area, consistent with our goal of
permitting each entity the flexibility to define the usage area
tailored to its specific needs. We seek comment, however, on how best
to delineate the appropriate size of a core area in order to guard
against inefficient spectrum use or warehousing. Should the core area
consist of a minimum percentage of the overall licensed area? Are there
other minimum metrics we could set to achieve Commission goals? We also
seek comment on whether to adopt a minimum signal level or other
requirements to define this core usage area. Are there other minimum
requirements that we should impose to delineate the core area of
operations? Is it most efficient for licensees to provide maps and
engineering showings confirming where the spectrum is in use, or should
licensees define this area using other methods when making a
certification to the Commission?
We also propose that licensees define an expansion zone into which
the usage area may extend in the future or certify that they do not
require such a zone based on network plans. Given the goals of this
proceeding, we propose that this zone would be a nominal area, and seek
comment on how to define this area in a way that avoids spectrum
warehousing. How should the Commission evaluate the permissible size
and boundaries of this area to avoid potential abuse, while permitting
flexibility to account for expansion to meet future business
communications needs? Should there be additional certifications,
notices, or deadlines for the usage of a defined expansion area?
Commenters should provide specific metrics where possible to describe
how the Commission should define the expansion zone to best achieve our
goal of providing certainty, while maintaining licensee flexibility.
For both the core and expansion zones, we seek additional comment on
whether to establish deadlines for licensees to meet their usage
obligations in these respective zones. Should licensees be required
within a certain period of time to complete core and expansion
construction? What is the appropriate timeframe for construction of
each of these areas to ensure that licensees are carrying out core
operations and expansion plans in these respective zones?
Finally, we propose that licensees should be given flexibility to
define a reasonable protection zone surrounding the core usage and
expansion zones, up to the license boundary, in order to provide
interference protection, consistent with the established service rule-
based protection criteria, for the licensee and neighboring licensees.
This approach would allow licensees greater flexibility to place
transmitters according to business needs without having to provide
commercial-grade signal coverage at the very edge of their license
boundary. We note that this is the same flexibility provided today in
radio services that require coverage of a population percentage within
the licensed area, not coverage to the entire licensed area. We
clarify, however, that licensees operating under this proposed
framework would nonetheless be required to meet the applicable co-
channel and adjacent channel protection criteria set forth in the
relevant radio service rules (e.g., a signal strength at the boundary,
or maintaining a service/interfering contour). We seek comment on how
best to define this protection area, including addressing how any
definition would continue to protect for system expansion. In
particular, we ask commenters to provide input regarding how the
appropriate size of any protection area relates to promoting spectrum
use in the core and expansion usages area, while not resulting in
spectrum hoarding in a licensed area. As stated, this framework could
substantially benefit licensees seeking to provide private internal
communications, and is likely to provide clarity regarding stakeholder
rights and responsibilities associated with secondary market
transactions. This regulatory relief, however, might also benefit
licensees intending to use spectrum to meet private, internal
communication needs, but that acquired their authorizations at auction.
Should we apply this framework to licenses acquired at auction, in
addition to licenses acquired through the secondary markets? Would a
three-zone approach that contemplates coverage of all geography in a
license area provide stakeholders with the requisite flexibility when
applied to potentially larger license sizes available in certain
auctions?
We believe the alternative standard should be codified in part 1 of
our rules, within the existing renewal standard. 47 CFR 1.949 and
1.950. We seek comment, however, on the most appropriate location for
these proposed rule changes. Are Commission rule Sec. Sec. 1.949 and
1.950 the appropriate place to amend our performance rules to
facilitate administrative ease without creating confusion for licensees
over Commission requirements? In the alternative, rather than creating
a general rule applicable to all WRS licensees, regardless of spectrum
band, should we amend our rules for affected services with a service-
specific exception?
Similarly, and given that the current technical standards and
protections at the boundary of a partitioned or disaggregated license
are service-specific, we seek comment on whether to consider changes to
any of these rules for ECIP licensees in particular. Are the current
protections adequate for the types of licensees we consider here? What
changes, if any, should the Commission consider in order to allow these
networks to meet construction

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requirements yet avoid harmful interference?
Alternate Use or Share Safe Harbor. Commenters note the existence
of a variety of enterprises in rural areas that serve critical
industries and locations, such as hospitals, school campuses, public
safety facilities, and mining and farming concerns. Some commenters
argue that, given the nature of private enterprise networks, the
construction and renewal requirements could be fulfilled as long as
licensees make use of the spectrum to meet communications needs at any
place within the geographic license area, regardless of population or
geographic coverage. We find this standard to be overbroad and contrary
to the goals of this proceeding, as it could incentivize spectrum
warehousing and result in transactions for areas substantially larger
than required to meet an entity's communications needs.
We seek comment instead on a ``use or offer to share'' safe harbor
metric for renewal and construction that acknowledges the needs of
these types of networks and would facilitate spectrum use. Under this
approach, to meet the safe harbor, the licensee would show that: (1) it
is using the spectrum in order to meet a private internal need within
the licensed area; and (2) it has an ongoing public offering to sell or
lease any unused geographic area under reasonable terms and conditions.
We seek comment on specific definitions of the relevant terms and
concepts within such a safe harbor. For example, how should the
Commission determine whether the terms and conditions are reasonable?
Are there specific additional ways to prevent warehousing within this
standard? Do commenters believe that this type of standard would
continue to allow spectrum warehousing and abuse? Is it more efficient
to require return of unused spectrum to Commission inventory for re-
licensing, rather than allowing such a safe harbor? Commenters are
encouraged to discuss how this proposal could incentivize deployment
and spectrum use by the types of private networks for which alternative
metrics are needed. We also seek comment on the costs and benefits of
the proposals advanced above and any alternatives raised by commenters.
Ensuring connectivity for all private wireless applications. Many
emerging private wireless use cases have the potential to unlock
efficiencies in areas that are not only less populated but also
associated with more moderate levels of enterprise demand. For example,
small farms can still benefit from smart agriculture, just as small
businesses in any number of rural industries can leverage wireless
technologies to enhance their operations--and increasingly may need to
do so to stay competitive as larger firms do the same. Similarly, smart
infrastructure, which can be deployed outside of population centers,
may not always be operated by a single customer (e.g., a large utility)
that can generate a large amount of concentrated demand. To what extent
can secondary market transactions fulfill demand for these
applications, and to what extent will these applications rely on
buildout by the original licensee? Given the centrality of these and
similar use cases to the public interest benefits of 5G and other
advanced wireless technologies, how can we ensure that our construction
requirements, both population-based and alternative, encourage spectrum
deployment in all areas with private wireless demand? Should we modify
our population-based requirements to ensure that spectrum is available
and put to use in these locations? If so, how?

C. Other Efforts To Promote Digital Equity and Inclusion

Finally, the Commission, as part of its continuing effort to
advance digital equity for all, including people of color, persons with
disabilities, persons who live in rural or Tribal areas, and others who
are or have been historically underserved, marginalized, or adversely
affected by persistent poverty or inequality, invites comment on any
equity-related considerations and benefits (if any) that may be
associated with the proposals and issues discussed herein.
Specifically, we seek comment on how our proposals may promote or
inhibit advances in diversity, equity, inclusion, and accessibility, as
well the scope of the Commission's relevant legal authority.

Federal Communications Commission.
Marlene Dortch,
Secretary.
[FR Doc. 2022-17519 Filed 9-19-22; 8:45 am]
BILLING CODE 6712-01-P

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