[Federal Register Volume 74, Number 153 (Tuesday, August 11, 2009)]
[Proposed Rules]
[Pages 40117-40121]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-19099]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
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 

  Federal Register / Vol. 74, No. 153 / Tuesday, August 11, 2009 / 
Proposed Rules  

[[Page 40117]]



DEPARTMENT OF COMMERCE

Bureau of Industry and Security

15 CFR Parts 742 and 774

[Docket No. 080721866-8871-01]
RIN 0694-AE42


Revisions to the Commerce Control List To Update and Clarify 
Crime Control License Requirements

AGENCY: Bureau of Industry and Security, Commerce.

ACTION: Proposed rule.

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

SUMMARY: This proposed rule would update and clarify export and 
reexport license requirements on striking weapons, restraint devices, 
shotguns and parts, optical sighting devices, and electric shock 
devices. It would also add equipment designed for executions to the 
Commerce Control List. This proposed rule would make no changes to the 
longstanding policy of denial of applications to export or reexport 
specially designed implements of torture. The proposed rule would 
provide additional illustrative examples of such items and would adopt 
a definition of torture used in a U.S. statute that implements the 
United Nations Convention against Torture and Other Cruel, Inhuman or 
Degrading Treatment or Punishment. BIS is publishing this rule as part 
of an ongoing review of crime control license requirements and policy.

DATES: Comments concerning this rule must be received by BIS no later 
than September 25, 2009.

ADDRESSES: Comments on this rule may be submitted to the Federal 
eRulemaking Portal at http://www.regulations.gov (follow the 
instructions for submitting comments), by e-mail directly to BIS at 
[email protected] (refer to regulatory identification number 
0694-AE42 in the subject line), or on paper to Regulatory Policy 
Division, Office of Exporter Services, Bureau of Industry and Security, 
Room H2705, U.S. Department of Commerce, 14th Street and Pennsylvania 
Avenue, NW., Washington, DC 20230. Refer to Regulatory Identification 
Number (RIN) 0694-AE42 in all comments.

FOR FURTHER INFORMATION CONTACT: Chantal Lakatos, Office of Non-
proliferation and Treaty Compliance, Bureau of Industry and Security, 
telephone: 202-482-1739; fax: 202-482-4145; e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    The Export Administration Regulations (15 CFR parts 730-774) impose 
license requirements for certain exports from the United States and 
reexports from other countries for, among other reasons, ``crime 
control.'' The crime control license requirements are intended for the 
``support of U.S. foreign policy to promote human rights throughout the 
world'' (15 CFR 742.7(a)). This rule is part of an effort by BIS to 
review and, where appropriate, revise the crime control license 
requirements in the Export Administration Regulations. In connection 
with this effort, BIS published a notice of inquiry seeking public 
comments on whether the scope of items and destinations that are 
subject to crime control license requirements should be changed (73 FR 
14769, March 19, 2008). After reviewing the public comments on that 
notice and conducting its own policy deliberations, BIS plans to 
proceed with this review in stages.
    In the first stage, BIS is publishing this proposed rule, which 
addresses relatively simple extensions, modifications or removals of 
items currently on the Commerce Control List or additions to that list 
of items that have a clearly identified crime control or law 
enforcement nexus.
    In one or more subsequent stages, BIS intends to address more 
complex Commerce Control List matters such as whether, and, if so, the 
extent to which biometric measuring devices, integrated data systems, 
simulators, and communications equipment should be listed on the 
Commerce Control List; the degree to which software and technology 
related to commodities on the Commerce Control List should be listed 
and how such software and technology should be described; and general 
policy issues such as whether the range of destinations to which crime 
control license requirements apply should be modified.

Summary of the Changes Proposed

    Revisions to Sec.  742.7--Crime control. This proposed rule would 
change the section heading to read ``Crime control and detection'' to 
reflect the contents of the section. It also would revise paragraph (a) 
to set forth a license requirement to all destinations for a proposed 
new ECCN 0A981 that would apply to equipment designed for the execution 
of human beings. Finally, this rule would revise paragraph (d) to state 
that in maintaining these controls, the United States considers 
international norms and the practices of other countries that control 
exports to promote the observance of human rights; however, the 
controls are not based on the decisions of any multilateral export 
control regime and may differ from controls imposed by other countries. 
This proposed rule would remove language from paragraph (d) that could 
be read as erroneously implying that the United States is the only 
country that imposes export controls on crime control and detection 
items.
    Revisions to Sec.  742.11--Specially designed implements of 
torture. This proposed rule would revise the heading to match the 
revised language that this rule applies to ECCN 0A983, i.e. ``Specially 
designed implements of torture, including thumbscrews, thumbcuffs, 
fingercuffs, spiked batons, shock sleeves and parts and accessories, 
n.e.s.'' This proposed rule also would revise paragraph (d) to state 
that in maintaining these controls, the United States considers 
international norms and the practices of other countries that control 
exports to promote the observance of human rights; however, the 
controls are not based on the decisions of any multilateral export 
control regime and may differ from controls imposed by other countries. 
This proposed rule would remove language from paragraph (d) that could 
be read as erroneously implying that the United States is the only 
country that imposes export controls on specially designed implements 
of torture. This proposed rule would make no changes to the policy of 
denial of applications to export items subject to Sec.  742.11 or to 
the prohibition (stated in Sec.  740.2(a)(10) of

[[Page 40118]]

the EAR) on use of license exceptions to export commodities subject to 
Sec.  742.11 of the EAR.
    Revisions to ECCN 0A978--Saps. The items covered by this ECCN would 
be expanded from ``saps'' to ``law enforcement striking weapons.'' 
Saps, police batons, side handle batons, tonfas, sjamboks and whips 
would be listed as examples of law enforcement striking weapons. BIS 
believes that this change would provide consistent license requirements 
for several items that have substantially similar crime control 
functions.
    Creation of ECCN 0A981--Equipment for the Execution of Human 
Beings. This rule would create a new ECCN 0A981 that would apply to 
equipment designed for the execution of human beings. Such equipment 
would require a license to all destinations. BIS is proposing adding 
this ECCN because equipment designed for the execution of human beings 
has a clear nexus to crime control and an obvious potential use in 
repressing human rights.
    Revisions to ECCN 0A982--Restraint Devices. Several changes would 
be made to this ECCN to (a) make clear that it applies to law 
enforcement restraint devices, rather than safety or medical equipment, 
(b) update the illustrative list of commodities to which this ECCN 
applies, and (c) cross reference other ECCNs that apply to similar 
devices. These changes are intended to focus the ECCN on items of crime 
control significance and to reduce the possibility of 
misinterpretations.
     The rule would add the phrase ``Law enforcement'' to the 
heading.
     The rule would add ``multipoint restraint devices 
including restraint chairs'' to the illustrative list of restraint 
devices because use of these devices has increased in recent years and 
because they have potential for use in human rights abuse.
     The rule would also revise the related controls paragraph 
of this ECCN to note (a) that finger cuffs and shock sleeves are 
classified under ECCN 0A983--Specially designed implements of torture, 
(b) that law enforcement restraint devices that administer an electric 
shock are controlled under ECCN 0A985, and (c) that electronic devices 
that monitor and report a person's location to enforce restrictions on 
movement for law enforcement or penal reasons are controlled under ECCN 
3A981.
     This rule would add a note stating that this ECCN does not 
apply to medical devices that are equipped to restrain patient movement 
during medical procedures, devices that confine memory-impaired 
patients to appropriate medical facilities, or safety equipment such as 
safety belts or child automobile safety seats.
    BIS believes that the proposed revised language would clarify the 
scope of ECCN 0A982 and is not a substantive change.
    Revisions to ECCN 0A983--Specially Designed Implements of Torture. 
This rule would make no changes to the Export Administration 
Regulations' stated policies of denial of license applications for the 
export or reexport of specially designed implements of torture and 
prohibition of use of any license exception to export or reexport 
specially designed implements of torture.
    The heading of ECCN 0A983 would be revised to add the word 
``including'' immediately following the phrase ``specially designed 
implements of torture'' to make clear that the items listed are 
examples of specially designed implements of torture rather than an 
exclusive list of such implements. The heading would also be revised to 
add fingercuffs, spiked batons and shock sleeves to the ECCN as 
additional examples of specially designed implements of torture. A new 
note would state that ``torture'' in this ECCN has the same meaning as 
set forth in 18 U.S.C. 2340(1), which is the definition employed by the 
United States criminal statute that implements the United Nations 
Convention against Torture and Other Cruel, Inhuman or Degrading 
Treatment or Punishment. BIS believes that these changes would more 
clearly distinguish specially designed implements of torture from crime 
control and detection items.
    Revisions to ECCN 0A984--Shotguns. This rule would remove the 
phrase ``parts n.e.s.'' and add the following specific parts for the 
shotguns controlled by this ECCN: barrels of 18 inches (45.72 cm) or 
longer but not longer than 24 inches (60.96 cm), receivers, breech 
mechanisms, complete trigger mechanisms, and magazines or magazine 
extension tubes. The parts are subject to CC column 1 license 
requirements. BIS believes that the purposes of the control can be met 
by retaining the license requirement on the shotguns themselves and on 
the critical parts set forth in this rule. BIS believes that continuing 
to require licenses for other parts would pose a burden on legitimate 
trade in shotgun repair parts that is not needed to achieve the purpose 
of these controls or of the controls related to the Inter-American 
Convention Against the Illicit Manufacturing of and Trafficking in 
Firearms, Ammunition, Explosives and Other Related Materials.
    Revisions to ECCN 0A985--Discharge Type Arms. ECCN 0A985 applies to 
discharge type arms and to some electroshock devices that are not 
discharge type arms. To provide greater clarity and to include a 
representative description of devices currently available, this 
proposed rule would add the phrase ``devices to administer electric 
shock'' to the heading and would add stun cuffs and shock shields to 
the illustrative list of items classified under this ECCN. This rule 
would also add references to the ``Related Controls'' paragraph 
informing readers that shock sleeves are controlled by ECCN 0A983 and 
that electronic devices that monitor and report a person's location to 
enforce restrictions on movement for law enforcement or penal reasons 
are controlled under ECCN 3A981.
    Revisions to ECCN 0A987--Optical Sighting Devices for Firearms. 
This rule would replace the general description in the heading of ECCN 
0A987 with a list of items controlled. With this change, the ECCN would 
clearly state that it applies to specific sighting devices, their 
associated optical elements, and adjustment mechanisms.
    Revisions to ECCN 0E984--Technology for shotguns. This rule would 
modify ECCN 0E984 to apply CC Column 1 as a reason for control of 
technology for the development and production of all shotguns and 
shotgun shells controlled by ECCN 0A984. Currently, ECCN 0E984 applies 
reasons for control that are parallel to the reasons for control in 
ECCN 0A984, i.e., CC Column 1, 2, or 3 is applied depending on whether 
the barrel length exceeds 24 inches and whether the end-user is a law 
enforcement agency. BIS is proposing the change described in this 
paragraph because it believes that the technology for the development 
and production of shotguns is substantially the same for all shotguns 
with barrel length exceeding 18 inches and does not vary based on the 
end user of the shotgun.
    Revisions to ECCN 3A981--Polygraphs and other electronic devices. 
This proposed rule would add a cross reference to the restraint devices 
controlled by ECCN 0A982. This proposed rule would also add a note 
expressly stating that the electronic monitoring restraint devices in 
ECCN 3A981 are devices that monitor or report the location of confined 
persons for law enforcement or penal reasons. The note would exclude 
devices used to confine memory impaired patients to appropriate medical 
facilities. BIS views these proposed changes in wording as 
clarifications rather than substantive changes.

[[Page 40119]]

Request for Comments

    BIS is seeking public comments on this rule and will consider all 
comments received on or before September 25, 2009 in developing any 
final rule. Comments received after that date will be considered if 
feasible, but their consideration cannot be assured. All public 
comments on this rule must be in writing (including electronic postings 
on regulations.gov or e-mail) and will be a matter of public record, 
available for public inspection and copying.

Rulemaking Requirements

    1. This rule is a significant rule for purposes of Executive Order 
12866.
    2. Notwithstanding any other provision of law, no person is 
required to respond to nor be subject to a penalty for failure to 
comply with a collection of information, subject to the requirements of 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), 
unless that collection of information displays a currently valid Office 
of Management and Budget (OMB) Control Number. This rule involves a 
collection of information that has been approved by OMB under control 
number 0694-0088, which carries a burden hour estimate of 58 minutes to 
prepare and submit form BIS-748P. Miscellaneous and recordkeeping 
activities account for 12 minutes per submission. BIS believes that the 
changes proposed will increase the number of submissions subject to 
this collection by approximately 1,200 annually. Send comments 
regarding these burden estimates or any other aspect of these 
collections of information, including suggestions for reducing the 
burden, to Jasmeet Seehra, Office of Management and Budget (OMB), by e-
mail to [email protected], or by fax to (202) 395-7285; and to the 
Regulatory Policy Division, Bureau of Industry and Security, Department 
of Commerce, Room 2705, 14th Street and Pennsylvania Ave., NW., 
Washington, DC 20230.
    3. This rule does not contain policies with Federalism implications 
as this term is defined in Executive Order 13132.
    4. The provisions of the Administrative Procedure Act (5 U.S.C. 
553) requiring notice of proposed rulemaking, the opportunity for 
public participation, and a delay in effective date, are inapplicable 
because this regulation involves a military or foreign affairs function 
of the United States (see 5 U.S.C. 553(a)(1)). Further, no other law 
requires that a notice of proposed rulemaking and an opportunity for 
public comment be given for this rule. Because a notice of proposed 
rulemaking and an opportunity for public comment are not required to be 
given for this rule by 5 U.S.C. 553, or by any other law, the 
analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 
et. seq.) are not applicable. However, to obtain the benefit of a 
variety of viewpoints, BIS is issuing this rule as a proposed rule with 
a request for comments.

List of Subjects

15 CFR Part 742

    Exports, Terrorism.

15 CFR Part 774

    Exports, Reporting and recordkeeping requirements.

    Accordingly, BIS proposes to amend the Export Administration 
Regulations (15 CFR parts 730-774) as follows:

PART 742--[AMENDED]

    1. The authority citation for part 742 is revised to read as 
follows:

    Authority:  50 U.S.C. app. 2401 et seq; Pub. L. 106-508; 50 
U.S.C. 1701 et seq; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 
783; Notice of July 23, 2008, 73 FR 43603 (July 25, 2008).

    2. In Sec.  742.7, revise the heading, redesignate existing 
paragraph (a)(5) as paragraph (a)(6), add a new paragraph (a)(5) and 
revise paragraph (d) to read as follows:


Sec.  742.7  Crime control and detection.

    (a) * * *
    (5) Items designed for the execution of human beings as identified 
in ECCN 0A981 require a license to all destinations including Canada.
* * * * *
    (d) U.S. controls. In maintaining its controls on crime control and 
detection items, the United States considers international norms 
regarding human rights and the practices of other countries that 
control exports to promote the observance of human rights. However, 
these controls are not based on the decisions of any multinational 
export control regime and may differ from controls imposed by other 
countries.
    3. In Sec.  742.11, revise the heading and paragraph (d) to read as 
follows:


Sec.  742.11  Specially designed implements of torture, including 
thumbscrews, thumbcuffs, fingercuffs, spiked batons, shock sleeves, and 
parts and accessories, n.e.s.

* * * * *
    (d) U.S. controls. In maintaining its controls on specially 
designed instruments of torture the United States considers 
international norms regarding human rights and the practices of other 
countries that control exports to promote the observance of human 
rights. However, these controls are not based on the decisions of any 
multinational export control regime and may differ from controls 
imposed by other countries.

PART 774--[AMENDED]

    4. The authority citation for part 774 continues to read as 
follows:

    Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; 
10 U.S.C. 7420; 10 U.S.C. 7430(e); 22 U.S.C. 287c, 22 U.S.C. 3201 et 
seq., 22 U.S.C. 6004; 30 U.S.C. 185(s), 185(u); 42 U.S.C. 2139a; 42 
U.S.C. 6212; 43 U.S.C. 1354; 46 U.S.C. app. 466c; 50 U.S.C. app. 5; 
22 U.S.C. 7201 et seq.; 22 U.S.C. 7210; E.O. 13026, 61 FR 58767, 3 
CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., 
p. 783; Notice of July 23, 2008, 73 FR 43603 (July 25, 2008).

    5. In Supplement No. 1 to part 774, Category 0, revise the heading 
of Export Control Classification (ECCN) 0A978 to read as follows:

0A978 Law enforcement striking weapons, including saps, police batons, 
side handle batons, tonfas, sjamboks, and whips.

* * * * *
    6. In Supplement No. 1 to part 774, Category 0, add a new ECCN 
0A981 immediately following ECCN 0A980 and immediately preceding ECCN 
0A982 to read as follows:

0A981 Equipment designed for the execution of human beings (See list of 
items controlled).

License Requirements

    Reason for Control: CC.
    Control(s): CC applies to entire entry. A license is required 
for all destinations regardless of end-use. Accordingly, a column 
specific to this control does not appear on the Commerce Country 
Chart. (See Sec.  742.7 of the EAR for additional information.)

License Exceptions

    LVS: N/A.
    GBS: N/A.
    CIV: N/A.

List of Items Controlled

    Unit: $ value.
    Related Controls: N/A.
    Related Definitions: N/A.
    Items: a. Gallows and guillotines.
    b. Electric chairs for the purpose of executing human beings.
    c. Air tight vaults designed for the execution of human beings 
by the administration of a lethal gas or substance.
    d. Automatic drug injection systems designed for the execution 
of human beings by administration of a lethal substance.

    7. In Supplement No. 1 to part 774, Category 0, ECCN 0A982, revise 
the

[[Page 40120]]

heading, revise the ``Related Controls'' paragraph in the ``List of 
Items Controlled'' section and add a note at the end of ECCN 0A982 to 
read as follows:

0A982 Law enforcement restraint devices, including leg irons, shackles, 
and handcuffs; straight jackets; multipoint restraint devices such as 
restraint chairs; and parts and accessories, n.e.s.

License Requirements

* * * * *

List of Items Controlled

    Unit: $ * * *
    Related Controls: Thumbcuffs, fingercuffs and shock sleeves are 
classified under ECCN 0A983, specially designed implements of 
torture. Other law enforcement restraint devices that administer an 
electric shock are controlled under ECCN 0A985. Restraint devices 
that electronically monitor or report the location of confined 
persons for law enforcement or penal reasons are controlled under 
ECCN 3A981.
* * * * *
    Note to ECCN 0A982. This ECCN applies to restraint devices used 
in law enforcement activities. It does not apply to medical devices 
that are equipped to restrain patient movement during medical 
procedures. It does not apply to devices that confine memory 
impaired patients to appropriate medical facilities. It does not 
apply to safety equipment such as safety belts or child automobile 
safety seats.

    8. In Supplement No. 1 to part 774, Category 0, ECCN 0A983, revise 
the heading, and add a note at the end of ECCN 0A983 to read as 
follows:

0A983 Specially designed implements of torture, including thumbscrews, 
thumbcuffs, fingercuffs, spiked batons, shock sleeves, and parts and 
accessories, n.e.s.

* * * * *
    Note to ECCN 0A983. In this ECCN, ``torture'' has the meaning 
set forth in Section 2340(1) of Title 18, United States Code.

    9. In Supplement No. 1 to part 774, Category 0, ECCN 0A984, revise 
the heading and the license requirements section of ECCN 0A984 to read 
as follows:

0A984 Shotguns with barrel length 18 inches (45.72 cm) or over; 
receivers; barrels of 18 inches (45.72 cm) or longer but not longer 
than 24 inches (60.96 cm); complete trigger mechanisms; magazines and 
magazine extension tubes; complete breech mechanisms; buckshot shotgun 
shells; except equipment used exclusively to treat or tranquilize 
animals, and except arms designed solely for signal, flare, or saluting 
use.

License Requirements

    Reason for Control: CC, FC, UN.

 
               Control(s)                         Country Chart
 
FC applies to entire entry.............  FC Column 1.
CC applies to shotguns with a barrel     CC Column 1.
 length greater than or equal to 18 in.
 (45.72 cm), but less than 24 in.
 (60.96 cm), shotgun parts controlled
 by this entry, and buckshot shotgun
 shells controlled by this entry,
 regardless of end-user.
CC applies to shotguns with a barrel     CC Column 2.
 length greater than or equal to 24 in.
 (60.96 cm), regardless of end-user.
CC applies to shotguns with a barrel     CC Column 3.
 length greater than or equal to 24 in.
 (60.96 cm) if for sale or resale to
 police or law enforcement.
UN applies to entire entry.............  Iraq, North Korea, and Rwanda.
 

* * * * *
    10. In Supplement No. 1 to part 774, Category 0, ECCN 0A985, revise 
the heading and the ``Related Controls'' paragraph of the ``List of 
Items Controlled'' section to read as follows:

0A985 Discharge type arms and devices to administer electric shock, for 
example, stun guns, shock batons, stun cuffs, shock shields, electric 
cattle prods, immobilization guns and projectiles; except equipment 
used exclusively to treat or tranquilize animals, and except arms 
designed solely for signal, flare, or saluting use; and parts, n.e.s.

* * * * *

List of Items Controlled

    Unit: * * *
    Related Controls: Shock sleeves are controlled by ECCN 0A983. 
Electronic devices that monitor and report a person's location to 
enforce restrictions on movement for law enforcement or penal 
reasons are controlled under ECCN 3A981.
* * * * *
    11. In Supplement No. 1 to part 774, Category 0, ECCN 0A987, revise 
the heading and the ``Items'' paragraph of the ``List of Items 
Controlled'' section to read as follows:

0A987 Optical sighting devices for firearms (including shotguns 
controlled by 0A984); and parts (See list of items controlled).

* * * * *

List of Items Controlled

    Unit: * * *
    Related Controls: * * *
    Related Definitions: * * *
    Items: a. Telescopic sights.
    b. Holographic sights.
    c. Reflex or ``red dot'' sights.
    d. Reticle sights.
    e. Other sighting devices that contain optical elements.
    f. Laser pointing devices designed for use on firearms.
    g. Lenses, other optical elements and adjustment mechanisms for 
articles in paragraphs a, b, c, d or e.

    12. In Supplement No. 1 to part 774, Category 0, ECCN 0E984, revise 
the license requirements section of ECCN 0E984 to read as follows:

0E984 ``Technology'' for the ``development'' or ``production'' of 
shotguns controlled by 0A984 and buckshot shotgun shells.

License Requirements

    Reason for Control: CC, UN.

 
               Control(s)                         Country Chart
 
CC applies to ``technology'' for         CC Column 1.
 shotguns with a barrel length over 18
 in. (45.72 cm), and for shotgun shells
 controlled by ECCN 0A984.
 



[[Page 40121]]

    13. In Supplement No. 1 to part 774, Category 3 add a note to the 
end of ECCN 3A981 to read as follows:

3A981 Polygraphs (except biomedical recorders designed for use in 
medical facilities for monitoring biological and neurophysical 
responses); fingerprint analyzers, cameras and equipment, n.e.s.; 
automated fingerprint and identification retrieval systems, n.e.s.; 
psychological stress analysis equipment; electronic monitoring 
restraint devices; and specially designed parts and accessories, n.e.s.

* * * * *

List of Items Controlled

    Unit: * * *
    Related Controls: See ECCN 0A982 for other types of restraint 
devices.
    Related Definitions: * * *
    Items: * * *
    Note to ECCN 3A981. In this ECCN, electronic monitoring 
restraint devices are devices used to record or report the location 
of confined persons for law enforcement or penal reasons. The term 
does not include devices that confine memory impaired patients to 
appropriate medical facilities.

    Dated: August 5, 2009.
Matthew S. Borman,
Acting Assistant Secretary for Export Administration.
[FR Doc. E9-19099 Filed 8-10-09; 8:45 am]
BILLING CODE 3510-33-P