[Federal Register Volume 74, Number 164 (Wednesday, August 26, 2009)]
[Proposed Rules]
[Pages 43088-43092]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-20551]


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DEPARTMENT OF HOMELAND SECURITY

Transportation Security Administration

49 CFR Part 1503

[Docket No. TSA-2009-0014]
RIN 1652-AA66


Reporting of Security Issues

AGENCY: Transportation Security Administration, DHS.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: The Transportation Security Administration (TSA) proposes to 
add new procedures by which members of the public could report to TSA a 
problem, deficiency, or vulnerability regarding transportation 
security, including the security of aviation, maritime, railroad, motor 
carrier vehicle, or pipeline transportation, or any mode of public 
transportation, such as mass transit, in accordance with the 
Implementing Recommendations of the 9/11 Commission Act of 2007 (9/11 
Act).

DATES: Submit comments by October 26, 2009.

ADDRESSES: You may submit comments, identified by the TSA docket number 
to this rulemaking, to the Federal Docket Management System (FDMS), a 
government-wide, electronic docket management system, using any one of 
the following methods:
    Electronically: You may submit comments through the Federal 
eRulemaking portal at http://www.regulations.gov. Follow the online 
instructions for submitting comments.
    Mail, In Person, or Fax: Address, hand-deliver, or fax your written 
comments to the Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Avenue, SE., West Building Ground 
Floor, Room W12-140, Washington, DC 20590-0001; Fax 202-493-2251. The 
Department of Transportation (DOT), which maintains and processes TSA's 
official regulatory dockets, will scan the submission and post it to 
FDMS.
    See SUPPLEMENTARY INFORMATION for format and other information 
about comment submissions.

FOR FURTHER INFORMATION CONTACT: Sarah Tauber, Office of Chief Counsel, 
TSA-2, Transportation Security Administration, 601 South 12th Street, 
Arlington, VA 20598-6002; telephone (571) 227-3964; facsimile (571) 
227-1380; e-mail [email protected].

SUPPLEMENTARY INFORMATION: 

Comments Invited

    TSA invites interested persons to participate in this rulemaking by 
submitting written comments, data, or views. TSA also invites comments 
relating to the economic, environmental, energy, or federalism impacts 
that might result from this rulemaking action. See ADDRESSES above for 
information on where to submit comments.
    With each comment, please identify the docket number at the 
beginning of your comments. TSA encourages

[[Page 43089]]

commenters to provide their names and addresses. The most helpful 
comments reference a specific portion of the rulemaking, explain the 
reason for any recommended change, and include supporting data. The 
public may submit comments and material electronically, in person, by 
mail, or fax as provided under ADDRESSES, but please submit your 
comments and material by only one means. If you submit comments by mail 
or delivery, submit them in an unbound format, no larger than 8.5 by 11 
inches, suitable for copying and electronic filing.
    If you want TSA to acknowledge receipt of comments submitted by 
mail, include with your comments a self-addressed, stamped postcard on 
which the docket number appears. We will stamp the date on the postcard 
and mail it to you.
    TSA will file in the public docket all comments received by TSA, 
except for comments containing confidential information and sensitive 
security information (SSI).\1\ TSA will consider all comments received 
on or before the closing date for comments and will consider comments 
filed late to the extent practicable. The docket is available for 
public inspection before and after the comment closing date.
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    \1\ ``Sensitive Security Information'' or ``SSI'' is information 
obtained or developed in the conduct of security activities, the 
disclosure of which would constitute an unwarranted invasion of 
privacy, reveal trade secrets or privileged or confidential 
information, or be detrimental to the security of transportation. 
The protection of SSI is governed by 49 CFR part 1520.
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Handling of Confidential or Proprietary Information and Sensitive 
Security Information (SSI) Submitted in Public Comments

    Do not submit comments that include trade secrets, confidential 
commercial or financial information, or SSI to the public regulatory 
docket. Please submit such comments separately from other comments on 
the rulemaking. Comments containing this type of information should be 
appropriately marked as containing such information and submitted by 
mail to the address listed in the FOR FURTHER INFORMATION CONTACT 
section.
    TSA will not place comments containing SSI in the public docket and 
will handle them in accordance with applicable safeguards and 
restrictions on access. TSA will hold documents containing SSI, 
confidential business information, or trade secrets in a separate file 
to which the public does not have access, and place a note in the 
public docket that TSA has received such materials from the commenter. 
However, if TSA determines that portions of these comments may be made 
publicly available, TSA may include a redacted version of the comment 
in the public docket. If TSA receives a request to examine or copy 
information that is not in the public docket, TSA will treat it as any 
other request under the Freedom of Information Act (FOIA) (5 U.S.C. 
552) and the Department of Homeland Security's (DHS') FOIA regulation 
found in 6 CFR part 5.

Reviewing Comments in the Docket

    Please be aware that anyone is able to search the electronic form 
of all comments received into any of our dockets by the name of the 
individual submitting the comment (or signing the comment, if submitted 
on behalf of an association, business, labor union, etc.). You may 
review the applicable Privacy Act Statement published in the Federal 
Register on April 11, 2000 (65 FR 19477), or you may visit http://DocketInfo.dot.gov.
    You may review TSA's electronic public docket on the Internet at 
http://www.regulations.gov. In addition, DOT's Docket Management 
Facility provides a physical facility, staff, equipment, and assistance 
to the public. To obtain assistance or to review comments in TSA's 
public docket, you may visit this facility between 9 a.m. to 5 p.m., 
Monday through Friday, excluding legal holidays, or call (202) 366-
9826. This docket operations facility is located in the West Building 
Ground Floor, Room W12-140 at 1200 New Jersey Avenue, SE., Washington, 
DC 20590.

Availability of Rulemaking Document

    You can get an electronic copy using the Internet by--
    (1) Searching the electronic Federal Docket Management System 
(FDMS) Web page at http://www.regulations.gov;
    (2) Accessing the Government Printing Office's Web page at http://www.gpoaccess.gov/fr/index.html; or
    (3) Visiting TSA's Security Regulations Web page at http://www.tsa.gov and accessing the link for ``Research Center'' at the top 
of the page.
    In addition, copies are available by writing or calling the 
individual in the FOR FURTHER INFORMATION CONTACT section. Make sure to 
identify the docket number of this rulemaking.

Summary of the Rule

    Congress required that the Secretary of Homeland Security 
establish, by regulation and including a proposed rule, a process by 
which any person may submit a report to the Secretary regarding public 
transportation, railroad, or motor carrier vehicle security problems, 
deficiencies, or vulnerabilities.\2\ The proposed rule would, if 
promulgated in final form, establish a process by which reports could 
be submitted, either by U.S. mail, electronic mail, or telephone.
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    \2\ See Implementing Recommendations of the 9/11 Commission Act 
of 2007, Public Law 110-53, 121 Stat. 266 (August 3, 2007), sections 
1413(i), 1521(i) (codified at 49 U.S.C. 20109(j)), and 1536(i) 
(codified at 49 U.S.C. 31105(i)). This rule would, but for the 
requirements of Public Law 110-53, be a rule of agency procedure 
that is excepted from the advance notice and public comment 
provisions of the Administrative Procedure Act, 5 U.S.C. 553(b)(B).
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    This reporting mechanism is not intended for issues of immediate or 
emergency security or safety concern. Immediate or emergency security 
or safety concerns should be reported to the local emergency services 
operator by telephoning 911.
    Waste, fraud, and abuse in TSA programs should be reported to the 
Department of Homeland Security Inspector General: (800) 323-8603, or 
[email protected].
    TSA proposes to designate in paragraph (a) of the final rule 
addresses and a telephone number that any person may use to report to 
TSA a problem, deficiency, or vulnerability regarding transportation 
security, including the security of aviation, maritime, railroad, motor 
carrier vehicle, or pipeline transportation, or any mode of public 
transportation, such as mass transit. TSA will include in the final 
rule the precise addresses (physical and electronic) for reporting. TSA 
has included in this NPRM the enumeration of the addresses that will be 
used and the actual addresses to the extent that they are fixed 
addresses that are not subject to change. Proposed paragraphs (b) and 
(c) provide that if the report identifies the person making the report, 
TSA will acknowledge receipt of the report. TSA will review and 
consider the information provided in the report and take appropriate 
steps to address any problems, deficiencies, or vulnerabilities 
identified.
    Proposed paragraph (d) makes clear that a report made voluntarily 
under proposed Sec.  1503.1 would not satisfy any separate legal 
obligation of any individual to report information to TSA or any other 
Government agency under any other law. For example, TSA regulations and 
TSA-approved airport and aircraft operator security programs require 
certain reports to TSA. See 49 CFR 1542.307(b)(3) and 1544.304(d). 
Operators must comply with those provisions regardless of whether a 
report has been submitted through the new part 1503 procedures.

[[Page 43090]]

    The 9/11 Act calls for a process to report security matters 
regarding public transit, railroad, or motor carrier vehicle 
transportation.\3\ TSA proposes to expand the scope of this provision 
beyond that required by the statute. The proposed rule provides a 
single point of contact for reporting transportation security problems, 
deficiencies, or vulnerabilities in any mode in any mode of 
transportation. The security benefits of receiving these reports would 
apply to other modes of transportation as well as to those enumerated 
in the statute. The broad language of the regulation would encourage 
members of the public to submit reports for all modes. If warranted, 
TSA would act to reduce security vulnerabilities that these reports 
bring to TSA's attention. Separately from this rulemaking, TSA is in 
the process of developing a program to confer monetary or other 
recognition on individuals who provide valuable information to TSA 
about criminal acts or other violations relating to transportation 
security.
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    \3\ Implementing Recommendations of the 9/11 Commission Act of 
2007, Public Law 110-53, 121 Stat. 266 (August 3, 2007), sections 
1413(i), 1521(i) (codified at 49 U.S.C. 20109(j)), and 1536(i) 
(codified at 49 U.S.C. 31105(i)).
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Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.) 
requires that TSA consider the impact of paperwork and other 
information collection burdens imposed on the public and, under the 
provisions of 44 U.S.C. 3507(d), obtain approval from the Office of 
Management and Budget (OMB) for each collection of information it 
conducts, sponsors, or requires through regulations. As protection 
provided by the Paperwork Reduction Act, as amended, an agency may not 
conduct or sponsor, and a person is not required to respond to, a 
collection of information unless it displays a currently valid OMB 
control number. TSA has determined that there are no current or new 
information collection requirements associated with this proposed rule.

Economic Impact Analyses

Regulatory Evaluation Summary

    Changes to Federal regulations must undergo several economic 
analyses. First, Executive Order 12866, Regulatory Planning and Review 
(58 FR 51735, October 4, 1993), directs each Federal agency to propose 
or adopt a regulation only upon a reasoned determination that the 
benefits of the intended regulation justify its costs. Second, the 
Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq., as amended by 
the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 
1996) requires agencies to analyze the economic impact of regulatory 
changes on small entities. Third, the Trade Agreements Act (19 U.S.C. 
2531-2533) prohibits agencies from setting standards that create 
unnecessary obstacles to the foreign commerce of the United States. 
Fourth, the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires agencies to prepare a written assessment of the costs, 
benefits, and other effects of proposed or final rules that include a 
Federal mandate likely to result in the expenditure by State, local, or 
Tribal governments, in the aggregate, or by the private sector, of $100 
million or more annually (adjusted for inflation).

Executive Order 12866 Assessment

    In conducting these analyses, TSA has determined:
    1. This rulemaking is not a ``significant regulatory action'' as 
defined in the Executive Order. The Office of Management and Budget 
agrees with this conclusion.
    2. This rulemaking would not have a significant economic impact on 
a substantial number of small entities.
    3. This rulemaking would not constitute a barrier to international 
trade.
    4. This rulemaking does not impose an unfunded mandate on State, 
local, or Tribal governments, or on the private sector.
    The bases for these conclusions are summarized below.

Costs

    This proposed rule would enhance the public's ability to report to 
TSA--via e-mail, regular mail, or telephone--security concerns with 
aviation, maritime, railroad, motor vehicle, pipeline, or public 
transportation. TSA and the public would incur costs in the operation 
of this enhanced reporting system.
    TSA currently provides the public with two ways to communicate 
security concerns through logging onto the TSA Web site (http://www.tsa.gov): (1) By clicking on the ``Contact Us'' link at the top of 
the home page, clicking on the ``Security Issues'' link, scrolling down 
to the heading ``Security Violations and Concerns,'' and filling out 
and submitting an online form describing the security-related issue; or 
(2) by clicking on the ``Contact Us'' link at the top of the home page, 
clicking on the ``Security Issues'' link, and scrolling down to the 
heading ``Security Violations and Concerns,'' where a toll-free 
telephone number and e-mail address for the TSA Contact Center are 
provided. With the implementation of this rule, TSA plans to move the 
security-related contact information to a more prominent position on 
the home page to facilitate reporting. This analysis of costs and 
benefits assumes that TSA will proceed in that manner. After 
considering public comments and reviewing internal procedures, however, 
TSA may implement this rule differently.
    There is no accurate method for gauging how many additional e-mail 
messages, telephone calls, and letters reporting transportation-
security concerns the new placement of the contact number and address 
could generate. Consequently, estimating an accurate cost to the public 
of voluntarily reporting security concerns to TSA is difficult. 
Nonetheless, one can use fiscal year (FY) 2008 TSA Contact Center data 
to cost out potential scenarios. For this analysis, it has been 
projected that the rule will double the number of security-related 
telephone calls and e-mail messages TSA received in FY 2008.
    In FY 2008, the Contact Center fielded 3,241 security-related 
telephone calls. According to Contact Center statistics, the average 
security-related call lasts four minutes. If one projects that the 
public will place an additional 3,241 calls as a result of the rule, 
then the public will spend 12,964 minutes (3,241 calls at about 4 
minutes per call) on the telephone with TSA. At $29.24 per hour (TSA 
assumes that most of the communications it will receive will be from 
air travelers),\4\ the total annual cost to the public for the 
additional telephone calls will be $6,318 ($29.24 per hour x 12,964 
minutes/60 minutes per hour).
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    \4\ This cost is the FAA's value of time for air travelers, 
adjusted for inflation. Go to the following Web site for the FAA's 
Value of Time: http://www.faa.gov/regulations%5Fpolicies/policy%5Fguidance/benefit%5Fcost/. Next, click on Data Files (zip), 
and then click on 1-1.xls. This FAA table provides a ``Recommended 
Hourly Value of Travel Time Savings'' of $23.30 (2000 dollars) for 
personal travel by air carrier. The $23.30 is then converted to 2008 
dollars by multiplying it times 1.255, the amount by which the 
Consumer Price Index for Urban Wage Earners and Clerical Workers 
(CPI-W) rose between 2000 and 2008 (212.038/168.892). The annual 
value for 2008 (212.038) was calculated by summing the values for 
Quarters 1-3 and dividing the total by 3. Here is the source of the 
CPI-W numbers: http://www.ssa.gov/OACT/STATS/avgcpi.html.
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    To estimate the cost of contacting TSA electronically, this 
analysis used other data collected by the Contact Center as a starting 
point. In FY 2008 the Center received 2,544 security-related e-mail 
messages from customers who logged onto the TSA Web site,

[[Page 43091]]

clicked on the ``Contact Us/Security Issues/Security Violations and 
Concerns'' links described above, filled out the Web form, and 
submitted it. If one assumes that TSA will receive an additional 2,544 
e-mail messages as a result of this rule and that the average e-mail 
message will require fifteen minutes to prepare, one can modify the 
value-of-time formula used to calculate the FY 2008 cost of security-
related telephonic reports to TSA to estimate the cost to the public of 
e-mailing its concerns: 2,544 e-mail messages x 15/60 hours per e-mail 
message x $29.24 per hour = $18,597.
    The proposed rule would also allow the public to report security 
concerns by regular mail. If one projects that this rule will generate 
1,000 letters and that it takes the average letter writer 30 minutes to 
write and mail a report, the value of the public's time for this 
exercise would equate to $14,620 (1,000 letters x 30/60 hour per letter 
x $29.24 per hour). When the cost of postage is included (1,000 letters 
x $.42 per stamp = $420), using regular mail to report transportation 
security concerns to TSA would cost the public $15,040.
    The projected cost of the three modes of communication--$6,318 for 
telephone calls, $18,597 for e-mail, and $15,040 for regular mail--is 
$39,955. The public would assume this direct cost voluntarily; the cost 
is not imposed by this rule.
    In addition to this direct cost to the public, TSA would incur 
expenses in handling the increased volume of reports. Although it is 
not feasible to accurately establish the number of additional 
telephonic and e-mail reports the new placement of the contact number 
and address will generate, the Transportation Security Operations 
Center (TSOC) plans to hire six full time equivalent (FTE) contract 
watch officers (at an overall cost of $127,000 per year for each 
officer) to handle the increased volume.\5\ The incremental annual 
labor costs in administering these telephonic and e-mail reports would 
total $762,000 (6 x $127,000). TSA estimates that the toll-free 
telephone line would cost approximately $25 per month for the analog 
line charge and one cent per minute for line usage. If one projects 
that the rule will generate 3,241 additional telephone calls per year, 
the cost of the toll-free telephone line amounts to $430 ((3,241 calls 
x 4 minutes x $.01 per minute) + (12 months x $25)). Taken together, 
the estimated labor costs ($762,000) and telephone-line costs ($430) 
yield a total annual cost to TSA of $762,430.\6\ Because TSA would not 
expect to hire additional personnel to handle any increase in security-
related letters received via regular mail, no additional mail-
administration costs are anticipated.
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    \5\ This estimate of six FTEs may turn out to be high; the 
actual number will depend on how many reports TSOC receives, their 
complexity, and the percentage that require follow-up actions.
    \6\ TSOC will incur no incremental costs for training because 
in-house training has already been funded. There also will be no 
additional expenses for space, computers, and telephones; existing 
equipment at TSOC will be used to handle the expected increase in 
telephonic and e-mail reporting.
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Benefits

    This rulemaking provides the following benefits:
    1. It expands the public's ability to report problems, 
deficiencies, and vulnerabilities regarding transportation security.
    2. It reminds the public that TSA wants to receive these reports.
    3. It gives the public a simple method of alerting TSA to 
transportation security concerns that may otherwise have been 
overlooked. It is quite possible that reports from the public could 
prevent a national security problem that otherwise would have gone 
unaddressed.

Regulatory Flexibility Act Assessment

    The Regulatory Flexibility Act (RFA) of 1980 requires that agencies 
perform a review to determine whether a proposed or final rule will 
have a significant economic impact on a substantial number of small 
entities. If the determination is that it will, the agency must prepare 
a regulatory flexibility analysis as described in the RFA. For purposes 
of the RFA, small entities include small businesses, not-for-profit 
organizations, and small governmental jurisdictions per section 601(6) 
of the RFA. Individuals and States are not included in the definition 
of a small entity.
    This proposed rule enhances the public's ability to report security 
concerns voluntarily to TSA. TSA and the public will incur some costs 
in the operation of this enhanced reporting system. As stated 
previously, the public would voluntarily assume the direct cost of 
reporting problems and deficiencies to TSA; the cost is not imposed by 
this rule. TSA certifies that this rulemaking would not have a 
significant economic impact on a substantial number of small entities.

International Trade Impact Assessment

    The Trade Agreement Act of 1979 prohibits Federal agencies from 
establishing any standards or engaging in related activities that 
create unnecessary obstacles to the foreign commerce of the United 
States. Legitimate domestic objectives, such as safety, are not 
considered unnecessary obstacles. The statute also requires 
consideration of international standards and, where appropriate, that 
they be the basis for U.S. standards. TSA has assessed the potential 
effect of this rulemaking and has determined that it will impose the 
same costs on domestic and international entities and thus have a 
neutral trade impact.

Unfunded Mandates Assessment

    The Unfunded Mandates Reform Act of 1995 is intended, among other 
things, to curb the practice of imposing unfunded Federal mandates on 
State, local, and Tribal governments. Title II of the Act requires each 
Federal agency to prepare a written statement assessing the effects of 
any Federal mandate in a proposed or final agency rule that may result 
in a $100 million or more expenditure (adjusted annually for inflation) 
in any one year by State, local, and Tribal governments, in the 
aggregate, or by the private sector; such a mandate is deemed to be a 
``significant regulatory action.''
    This rulemaking does not contain such a mandate. The requirements 
of Title II of the Act, therefore, do not apply and TSA has not 
prepared a statement under the Act.

Executive Order 13132, Federalism

    TSA has analyzed this proposed rule under the principles and 
criteria of Executive Order 13132, Federalism. We determined that this 
action would not have a substantial direct effect on the States, on the 
relationship between the National Government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government, and therefore would not have federalism implications.

Environmental Analysis

    TSA has reviewed this action for purposes of the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4347) and has 
determined that this action will not have a significant effect on the 
human environment.

Energy Impact Analysis

    The energy impact of the notice has been assessed in accordance 
with the Energy Policy and Conservation Act (EPCA), Public Law 94-163, 
as amended (42 U.S.C. 6362). We have determined that this rulemaking is 
not a major regulatory action under the provisions of the EPCA.

[[Page 43092]]

List of Subjects in 49 CFR Part 1503

    Administrative practice and procedure, Investigations, Law 
enforcement, Penalties, Transportation.

The Proposed Amendments

    For the reasons set forth in the preamble, the Transportation 
Security Administration proposes to amend part 1503 in chapter XII of 
title 49, Code of Federal Regulations as follows:

PART 1503--INVESTIGATIVE AND ENFORCEMENT PROCEDURES

    1. The authority citation for part 1503 is revised to read as 
follows:

    Authority: 6 U.S.C. 1142; 18 U.S.C. 6002; 28 U.S.C. 2461 (note); 
49 U.S.C. 114, 20109, 31105, 40113-40114, 40119, 44901-44907, 46101-
46107, 46109-46110, 46301, 46305, 46311, 46313-46314.

    2. Revise subpart A heading and Sec.  1503.1 to read as follows:

Subpart A--Reports by the Public of Security Problems, 
Deficiencies, and Vulnerabilities


Sec.  1503.1  Submission of reports to TSA.

    (a) Any person may report to TSA a problem, deficiency, or 
vulnerability regarding transportation security, including the security 
of aviation, maritime, railroad, motor carrier vehicle, or pipeline 
transportation, or any mode of public transportation, such as mass 
transit. Reports may be made to TSA at the following addresses:
    (1) U.S. mail at Transportation Security Administration, TSA HQ, 
TSA-XXX, 601 South 12th Street, Arlington, VA 20598-6002;
    (2) By e-mail at XXX.dhs.gov; or
    (3) By telephone at (XXX) XXX-XXXX.
    (b) If a report submitted under this section identifies the person 
making the report, TSA will respond promptly to such person and 
acknowledge receipt of the report.
    (c) TSA will review and consider the information provided in any 
report submitted under this section and take appropriate steps to 
address any problems, deficiencies, or vulnerabilities identified.
    (d) Nothing in this section relieves a person of a separate 
obligation to report information to TSA under another provision of this 
title, a security program, or a security directive, or to another 
Government agency under other law.

    Issued in Arlington, Virginia, on August 20, 2009.
Keith Kauffman,
Acting Deputy Administrator.
[FR Doc. E9-20551 Filed 8-25-09; 8:45 am]
BILLING CODE 9110-05-P