[Federal Register Volume 74, Number 66 (Wednesday, April 8, 2009)]
[Notices]
[Pages 16020-16023]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-7978]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-59696; File No. SR-FINRA-2009-020]


Self-Regulatory Organizations; Financial Industry Regulatory 
Authority, Inc.; Notice of Filing of Proposed Rule Change Relating to 
the FINRA Regulation Board Composition and Conforming Changes to the 
FINRA Regulation By-Laws

April 2, 2009.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that 
on March 27, 2009, Financial Industry Regulatory Authority, Inc. 
(``FINRA'') (f/k/a National Association of Securities Dealers, Inc. 
(``NASD'')) filed with the Securities and Exchange Commission (``SEC'' 
or ``Commission'') the proposed rule change as described in Items I, 
II, and III below, which Items have been prepared by FINRA. The 
Commission is publishing this notice to solicit comments on the 
proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    FINRA is proposing to amend the By-Laws of FINRA's regulatory 
subsidiary (``FINRA Regulation'') to modify the FINRA Regulation Board 
(``FINRA Regulation Board'') composition, to adopt changes to conform 
the FINRA Regulation By-Laws to the FINRA By-Laws, and to reflect the 
corporate name change and similar matters.
    The text of the proposed rule change is available on FINRA's Web 
site at http://www.finra.org, at the principal office of FINRA and at 
the Commission's Public Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, FINRA included statements 
concerning the purpose of and basis for the proposed rule change and 
discussed any comments it received on the proposed rule change. The 
text of these statements may be examined at the places specified in 
Item IV below. FINRA has prepared summaries, set forth in sections A, 
B, and C below, of the most significant aspects of such statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

1. Purpose
Background on FINRA and Its Regulatory Subsidiary
    On July 30, 2007, NASD and the New York Stock Exchange consolidated 
their member firm regulation operations into a combined organization, 
FINRA. As part of the consolidation, the SEC approved amendments to the 
NASD By-Laws to implement governance and related changes.\3\ The 
approved changes included a FINRA Board governance structure that 
balanced public and industry representation and designated seven 
governor seats to represent member firms of various sizes based on the 
criteria of firm size.
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    \3\ See Securities Exchange Act Release No. 56145 (July 26, 
2007), 72 FR 42169 (August 1, 2007), as amended by Securities 
Exchange Act Release No. 56145A (May 30, 2008), 73 FR 32377 (June 6, 
2008) (File No. SR-NASD-2007-023).
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    FINRA Regulation (formerly known as NASD Regulation) is a 
subsidiary of FINRA that operates according to the Plan of Allocation 
and Delegation of Functions by NASD to Subsidiaries, as amended, which 
NASD adopted first in 1996 when it formed NASD Regulation. FINRA 
Regulation's By-Laws were not amended at the time of the consolidation, 
other than in a few sections where those By-Laws conflicted with the 
new FINRA By-Laws. On November 6, 2008, the Commission approved a 
proposed rule change to amend Articles I, II, III, V, VI, VII, IX, X 
and XIII, Section 4.16 of Article IV, and all of Article VIII except 
Section 8.7 and all of Article XII except Section 12.3, to realign the 
representation of industry members on the National Adjudicatory Council 
to follow more closely the categories of industry representation on the 
FINRA Board. See SR-FINRA 2008-046, Securities Exchange Act Release No. 
58909 (November 6, 2008), 73 FR 68467 (November 18, 2008).
Changes to the FINRA Regulation Board Composition To Parallel the FINRA 
Board
    The proposed rule change would make limited modifications to 
Article IV

[[Page 16021]]

of the FINRA Regulation By-Laws to parallel more closely the governance 
structure of the FINRA Board. To reflect FINRA's current governance 
structure, the proposed rule change establishes that FINRA Regulation 
Board members are drawn exclusively from the FINRA Board.\4\ In 
accordance with this change, the National Adjudicatory Council (NAC) 
Chair will no longer be a member of the FINRA Regulation Board.\5\ The 
rule change also eliminates specific references to representatives of 
an issuer of investment company shares and an insurance company (or 
affiliated members) from the required composition of the Board. Because 
the FINRA Board includes a Floor Member Governor, an Independent 
Dealer/Insurance Affiliate Governor and an Investment Company Affiliate 
Governor, any of these Governors may serve on the subsidiary's Board.
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    \4\ See proposed FINRA Regulation By-Laws, Article IV, Section 
4.3(a) (Qualifications). The current provision provides, in part, 
that ``[t]he Board shall include the President and the National 
Adjudicatory Council Chair, representatives of an issuer of 
investment company shares or an affiliate of such an issuer, and an 
insurance company or an affiliated NASD member.''
    \5\ See proposed FINRA Regulation By-Laws, Article IV, Section 
4.3(a) (Qualifications). The NAC Chair's automatic service on the 
FINRA Board of Governors was eliminated in 2007 as one of the 
changes to the FINRA By-Laws made during the NASD and NYSE 
consolidation.
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    The proposed rule change would apply to the FINRA Regulation Board 
the requirement, which exists in the FINRA By-Laws, that the FINRA 
Regulation Board have more Public Directors than Industry Directors.\6\ 
In furtherance of this change, references throughout Article IV to 
balancing Industry and Non-Industry Board members have been replaced 
with references to balancing Industry and Public Board members. The 
proposal likewise would remove the requirement that the Executive 
Committee include at least one Public Director and institute the 
requirement that Public Directors shall exceed Industry Directors on 
FINRA Regulation's Executive Committee of the Board.\7\
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    \6\ See proposed FINRA Regulation By-Laws, Article IV, Section 
4.3(a) (Qualifications). The current provision provides, in part, 
that ``[t]he number of Non-Industry Directors shall equal or exceed 
the number of Industry Directors.''
    \7\ See proposed FINRA Regulation By-Laws, Article IV, Section 
4.13(f) (Committees). The current provision provides, in part, that 
``[t]he Executive Committee shall consist of three or four 
Directors, including at least one Public Director. The President of 
NASD Regulation shall be a member of the Executive Committee. The 
number of Non-Industry committee members shall equal or exceed the 
number of Industry committee members.''
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    The proposed rule change would continue FINRA's custom of 
substantial industry participation on the board of its regulatory 
subsidiary. Currently, selection of the FINRA Board includes a petition 
process that allows for additional candidates for seven Industry 
Governor seats to be elected in contested elections. To ensure that the 
fair representation of industry members on the FINRA Board is similarly 
reflected on the FINRA Regulation Board, the proposal would establish 
that the FINRA Regulation Board include 20%, and not less than two, 
Small, Mid-Size, or Large Firm Governors.\8\ These provisions would 
establish a minimum floor of 20% of the FINRA Regulation Board 
Directors coming from FINRA Governor seats with potential contested 
elections and would ensure that a minimum of two such Governors would 
serve on the FINRA Regulation Board.\9\
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    \8\ See proposed FINRA Regulation By-Laws, Article IV, Section 
4.3 (Qualifications). The current provision provides, in part, that 
``[i]f the Board consists of 5-7 Directors, it shall include at 
least one Public Director. If the Board consists of eight to nine 
Directors, at least two Directors shall be Public Directors. If the 
Board consists of ten to twelve Directors, at least three Directors 
shall be Public Directors, and if the Board consists of thirteen to 
fifteen Directors, at least four shall be Public Directors.''
    \9\ See proposed FINRA Regulation By-Laws, Article IV, Section 
4.3(a) (Qualifications).
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    The proposed rule change would clarify the conditions under which 
the FINRA Regulation Board can meet. The current FINRA Regulation By-
Laws instruct that a Director can waive notice of a Board meeting by 
being present at the meeting, so long as the Director did not attend 
the meeting solely to object to the meeting taking place.\10\ The 
proposed addition to Section 4.12(c) clarifies that a Board meeting is 
a legal meeting if all Directors are present and no Director is present 
solely for the purpose of objecting to the meeting taking place.
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    \10\ See current FINRA Regulation By-Laws, Article IV, Section 
4.12(b) (Notice of Meeting; Waiver of Notice) and Article XII, 
Section 12.3(b) (Waiver of Notice).
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Post-Consolidation Changes to FINRA Board Responsibilities
    The proposed rule change would implement minor alterations 
regarding removing FINRA Regulation Board members, filling a vacant 
board seat, and selection of the Chair of FINRA Regulation's Board. 
FINRA Regulation is a stock corporation organized in the State of 
Delaware. First, the proposal would transfer the authority to remove 
Directors from a majority vote of the FINRA Board to the stockholder of 
FINRA Regulation \11\ to accommodate Delaware law, which requires that 
a stock corporation vest the power to remove directors with the 
stockholder.\12\ Second, Directors of FINRA Regulation currently are 
elected annually at the meeting of FINRA Regulation's stockholder or at 
a special meeting dedicated to FINRA Regulation Board elections. When 
the annual election of Directors is not held on the designated date, 
the By-Laws charge the Directors to ``cause such election'' to be 
held.\13\ The proposed rule change would confirm that the same process 
should be used by the FINRA Regulation Board when filling vacancies 
among its ranks. The proposal would adopt language that the FINRA Board 
shall ``cause the election'' of a qualified Director to fill the vacant 
position.\14\ Third, the proposal would transfer the task of selecting 
the Chair of the FINRA Regulation Board from the Board members to FINRA 
Regulation's stockholder.\15\ The proposal also would:
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    \11\ See proposed FINRA Regulation By-Laws, Article IV, Section 
4.6 (Removal). The sole stockholder of the capital stock of FINRA 
Regulation is FINRA, Inc. See Article XI, Section 11.1 (Sole 
Stockholder).
    \12\ See Delaware General Corporation Law, Sec.  141(k). As a 
practical matter, the FINRA Board generally would be asked to pass a 
resolution authorizing an officer of FINRA to execute a sole 
stockholder consent on behalf of FINRA (who is the sole stockholder 
of FINRA Regulation) before such a consent is executed. As such, the 
FINRA Board would have a voice in the matter, but as a matter of 
Delaware law, the consent authorizing the removal must be executed 
by a duly authorized officer of FINRA in FINRA's capacity as sole 
stockholder.
    \13\ See current FINRA Regulation By-Laws, Article IV, Section 
4.4 (Election).
    \14\ See proposed FINRA Regulation By-Laws, Article IV, Section 
4.8 (Filling of Vacancies). Pursuant to the General Corporation Law, 
FINRA, as the sole stockholder of FINRA Regulation, has the 
authority to execute a stockholder consent electing an individual to 
the fill the vacancy pursuant to directions of the FINRA Board. 
Alternatively, the FINRA Board may pass a resolution making it known 
who they would like appointed to fill the vacancy. Under this 
scenario, it is likely that the remaining members of the FINRA 
Regulation Board will follow the advice of its controlling 
stockholder and elect the recommended individual. See Delaware 
General Corporation Law, Sec.  223.
    \15\ See proposed FINRA Regulation By-Laws, Article IV, Section 
4.3(b) (Qualifications). See also Delaware General Corporation Law 
Sec.  142, which allows the sole stockholder to make this selection 
if expressly provided for in the By-Laws.
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     Eliminate the requirement that the Board select a Vice 
Chair as unnecessary; \16\
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    \16\ See proposed FINRA Regulation By-Laws, Article IV, Section 
4.3(b) (Qualifications).
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     Indicate that the stockholder would designate the Chair at 
the same time that the Directors are elected; \17\
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    \17\ See proposed FINRA Regulation By-Laws, Article IV, Section 
4.3(b) (Qualifications). The current provision provides, in part, 
that the Board shall designate a Chair ``as soon as practicable, 
following the annual election of Directors.''
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     Eliminate as unnecessary the reference to the first 
meeting of NASD

[[Page 16022]]

Regulation at which Directors initially were elected; \18\
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    \18\ See proposed FINRA Regulation By-Laws, Article IV, Section 
4.4 (Election).
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     Clarify that when a Director is disqualified from Board 
service and the Director's remaining term is not more than six months, 
the Board may continue to operate and will not violate any 
compositional requirements if it does not replace the disqualified 
Director; \19\
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    \19\ See proposed FINRA Regulation By-Laws, Article IV, Section 
4.7 (Disqualification).
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     Remove the requirement that written notice of resignation 
by Directors be submitted to the President; \20\ and
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    \20\ See proposed FINRA Regulation By-Laws, Article IV, Section 
4.5. The current provision provides, in part, that ``[a]ny Director 
may resign at any time either upon written notice of resignation to 
the Chair of the Board, the President, or the Secretary.'' Under the 
proposed provision, notice of resignation must be submitted to the 
Chair of the Board or the Secretary.
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     Eliminate as unnecessary a cross-reference in the quorum 
provision and state that, when there is a quorum, a majority vote of 
the Directors present at a meeting constitutes action of the Board.\21\
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    \21\ See proposed FINRA Regulation By-Laws, Article IV, Section 
4.9(b) (Quorum and Voting).
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Changes To Reflect Practices Regarding the Capital Stock of FINRA 
Regulation
    The proposed rule change would amend several provisions regarding 
FINRA Regulation's capital stock. FINRA's approach to the corporate law 
issue of signing certificates representing shares of FINRA Regulation 
capital stock is to have these shares signed by FINRA Regulation 
officers. Because FINRA Regulation does not have an officer as Chair of 
the Board, the possibility of the Chair signing stock certificates is 
being deleted.\22\ The proposal would eliminate limitations on when 
signatures on certificates representing shares of FINRA Regulation's 
capital stock may be facsimiles and would allow any signature to be a 
facsimile.\23\ Given that currently certificates representing capital 
stock may be sealed with a facsimile of FINRA Regulation's corporate 
seal, this change would apply the same flexible approach to signatures 
on the certificates.
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    \22\ See proposed FINRA Regulation By-Laws, Article XI, Section 
11.3(a) (Signatures). Under the current provision, ``[c]ertificates 
for shares of capital stock of FINRA Regulation shall be signed in 
the name of FINRA Regulation by two officers with one being the 
Chair of the Board, the President, or a Vice President, and the 
other being the Secretary, the Treasurer, or such other officer that 
may be authorized by the Board.'' Under the proposal, certificates 
for shares of capital stock of FINRA Regulation shall be signed by 
two officers with one being the President or a Vice President, and 
the other being the Secretary, the Treasurer, or such other officer 
that may be authorized by the Board.
    \23\ See proposed FINRA Regulation By-Laws, Article XI, Section 
11.3(b) (Signatures).
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    Currently, one section of the By-Laws requires that the FINRA 
Regulation Secretary, or another officer, employee, or agent, keep a 
record of FINRA Regulation's capital stock ownership and ``the number 
of shares represented by each such certificate.'' \24\ Tracking this 
language and applying it elsewhere, the proposal would change several 
phrases that discuss capital stock to ``certificates representing 
shares of capital stock'' or similar constructions instead of 
``certificates for shares of capital stock.'' This change would make 
the By-Laws more consistent with the language of the applicable section 
of the General Corporation Law of the State of Delaware.\25\ The 
proposal would delete as imprecise the words ``certificates for'' in 
the discussion of potential registration of shares of capital 
stock.\26\
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    \24\ See current FINRA Regulation By-Laws, Article XI, Section 
11.4(a) (Stock Ledger).
    \25\ See Delaware General Corporation Law Sec.  158.
    \26\ See proposed FINRA Regulation By-Laws, Article XI, Sections 
11.4(a) (Stock Ledger) and 11.5(a) (Transfers of Stock).
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Conforming Changes Relating to the New FINRA Name and Other Minor 
Changes
    The proposed rule change would make certain non-substantive changes 
to Articles IV and XI of the FINRA Regulation By-Laws as follows:
     ``The NASD'' or ``NASD'' is replaced with ``FINRA'' or 
``the Corporation;''
     ``NASD Regulation'' is changed to ``FINRA Regulation;''
     ``The Rules of the Association'' is replaced with ``the 
Rules of the Corporation,'' and
     ``National Nominating Committee'' is replaced with 
``Nominating Committee.''
    The proposed rule change would update sections of the FINRA 
Regulation By-Laws to acknowledge current practices. Because the 
President of FINRA Regulation is not designated to be a Governor on the 
FINRA Board, the proposed rule change would delete several references 
to the President of FINRA Regulation.\27\
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    \27\ See FINRA Regulation By-Laws, Article IV, Sections 4.3(a) 
(Qualifications), 4.5 (Resignation), 4.11(c) (Meetings), 4.13(f) 
(Executive Committee), and 4.13(g) (Finance Committee). Section 
141(c)(2) of the General Corporation Law of the State of Delaware 
provides that ``[t]he board of directors may designate 1 or more 
committees, each committee to consist of 1 or more directors of the 
corporation.'' (Emphasis Added). Committees of the board, therefore, 
may be comprised exclusively of board members. In addition, any 
committee of the board that is delegated any power and authority of 
the board, such as the Executive Committee, must be comprised 
exclusively of board members. See Delaware General Corporation Law, 
Sec.  141(c)(2).
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    The proposed rule change would amend and eliminate exceptions to 
the statement in Section 4.3 that the Chief Executive Officer (``CEO'') 
of FINRA shall be an ex-officio non-voting member of the FINRA 
Regulation Board. In particular, the proposed rule change would 
eliminate the exception regarding the CEO of FINRA also serving as 
President of FINRA Regulation and retaining the power to vote, among 
other powers. The FINRA Regulation Board will operate without this 
exception.
    The proposed rule change would revise Article IV, Section 4.12 
(Notice of Meeting; Waiver of Notice) and Article XII, Section 12.3 
(Waiver of Notice) to reflect advances in technology and the common 
usage of electronic transmission as a means of communication. In both 
these sections, FINRA intends ``electronic transmission'' to include e-
mail, text messages, and related technologies as well as facsimile, 
radio, cable, wireless, or telegraph. The proposal would make a related 
change to Article IV, Section 4.15 (Action Without Meeting) to 
eliminate the requirement that unanimous consent to taking action 
without a meeting specifically be in writing and filed with the minutes 
of the meeting. Instead, the consent would need to be ``in accordance 
with'' Delaware law, which allows a board to take action pursuant to 
unanimous consent communicated by electronic transmission.\28\
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    \28\ See Delaware General Corporation Law, Sec.  141(f).
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    Furthermore, the proposed modifications also would delete as 
unnecessary the provision that allowed the advisory council to attend a 
FINRA Regulation Board meeting, but not to vote.\29\
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    \29\ See proposed FINRA Regulation By-Laws, Article VIII, 
Section 8.7(b) (Advisory Council).
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    Proposed Schedule A to the FINRA Regulation By-Laws would describe 
the boundaries for districts one through eleven. These boundaries are 
not changing. The description of district boundaries is being proposed 
for deletion as Schedule B from the FINRA By-Laws and is being proposed 
for addition as Schedule A to the FINRA Regulation By-Laws for 
administrative convenience because the districts are established in 
Article VIII, Section 8.1 (Establishment of Districts) of the current 
FINRA Regulation By-Laws.
    FINRA will announce the effective date of the proposed rule change 
in a Regulatory Notice to be published no

[[Page 16023]]

later than 60 days following Commission approval. The effective date 
will be 30 days following publication of the Regulatory Notice 
announcing Commission approval.
2. Statutory Basis
    FINRA believes that the proposed rule change is consistent with the 
provisions of Section 15A(b)(6) of the Act,\30\ which requires, among 
other things, that FINRA rules must be designed to prevent fraudulent 
and manipulative acts and practices, to promote just and equitable 
principles of trade, and, in general, to protect investors and the 
public interest; and Section 15A(b)(4) of the Act,\31\ which requires 
that FINRA rules be designed to assure a fair representation of FINRA's 
members in the administration of its affairs. The composition of the 
FINRA Board has previously been found to meet the statutory 
requirements, and FINRA believes that the proposed rule change will 
allow the representation of industry members, as well as public 
members, on the FINRA Regulation Board while enabling the FINRA 
Regulation Board to operate with a close connection to the FINRA Board. 
The remaining changes either conform to other changes made to the By-
Laws or acknowledge current practices.
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    \30\ 15 U.S.C. 78o-3(b)(6).
    \31\ 15 U.S.C. 78o-3(b)(4).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    FINRA does not believe that the proposed rule change will result in 
any burden on competition that is not necessary or appropriate in 
furtherance of the purposes of the Act.

C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants or Others

    Written comments were neither solicited nor received.

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    Within 35 days of the date of publication of this notice in the 
Federal Register or within such longer period (i) as the Commission may 
designate up to 90 days of such date if it finds such longer period to 
be appropriate and publishes its reasons for so finding or (ii) as to 
which the self-regulatory organization consents, the Commission will:
    (A) By order approve such proposed rule change, or
    (B) Institute proceedings to determine whether the proposed rule 
change should be disapproved.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposed rule 
change is consistent with the Act. Comments may be submitted by any of 
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an e-mail to [email protected]. Please include 
File Number SR-FINRA-2009-020 on the subject line.

Paper Comments

     Send paper comments in triplicate to Elizabeth M. Murphy, 
Secretary, Securities and Exchange Commission, 100 F Street, NE., 
Washington, DC 20549-1090.

    All submissions should refer to File Number SR-FINRA-2009-020. This 
file number should be included on the subject line if e-mail is used. 
To help the Commission process and review your comments more 
efficiently, please use only one method. The Commission will post all 
comments on the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, 
all written statements with respect to the proposed rule change that 
are filed with the Commission, and all written communications relating 
to the proposed rule change between the Commission and any person, 
other than those that may be withheld from the public in accordance 
with the provisions of 5 U.S.C. 552, will be available for inspection 
and copying in the Commission's Public Reference Room, 100 F Street, 
NE., Washington, DC 20549, on official business days between the hours 
of 10 a.m. and 3 p.m. Copies of the filing also will be available for 
inspection and copying at the principal office of FINRA. All comments 
received will be posted without change; the Commission does not edit 
personal identifying information from submissions. You should submit 
only information that you wish to make available publicly. All 
submissions should refer to File Number SR-FINRA-2009-020 and should be 
submitted on or before April 29, 2009.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\32\
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    \32\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
 [FR Doc. E9-7978 Filed 4-7-09; 8:45 am]
BILLING CODE 8010-01-P