[Federal Register Volume 76, Number 25 (Monday, February 7, 2011)]
[Proposed Rules]
[Pages 6572-6575]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-2504]


 ========================================================================
 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. 76, No. 25 / Monday, February 7, 2011 / 
Proposed Rules  

[[Page 6572]]



DEPARTMENT OF AGRICULTURE

 Food Safety and Inspection Service

9 CFR Part 309

[Docket No. FSIS-2010-0041]


Non-Ambulatory Disabled Veal Calves and Other Non-Ambulatory 
Disabled Livestock at Slaughter; Petitions for Rulemaking

AGENCY: Food Safety and Inspection Service, USDA.

ACTION: Petitions for rulemaking.

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SUMMARY: The Food Safety and Inspection Service (FSIS) is requesting 
comments on two petitions for rulemaking submitted to the Agency that 
raise issues associated with the disposition of non-ambulatory disabled 
veal calves and other non-ambulatory disabled livestock at slaughter. 
The first petition, submitted by the Humane Society of the United 
States (HSUS), requests that FSIS repeal a provision in its ante-mortem 
inspection regulations that permits veal calves that are unable to rise 
from a recumbent position and walk because they are tired or cold to be 
set apart and held for treatment. Such calves are permitted to proceed 
to slaughter if they are able to rise and walk after being warmed or 
rested. The HSUS has petitioned FSIS to amend the regulations to 
require that non-ambulatory disabled veal calves be condemned and 
promptly and humanely euthanized. The second petition, submitted by 
Farm Sanctuary, requests that the Agency amend the Federal meat 
inspection regulations to prohibit the slaughter of non-ambulatory 
disabled pigs, sheep, goats, and other amenable livestock. In addition 
to requesting comments on the petitions, the Agency is clarifying its 
requirements for condemned non-ambulatory disabled cattle at official 
slaughter establishments.

DATES: Comments must be received by April 8, 2011.

ADDRESSES: FSIS invites interested persons to submit relevant comments 
on the implementation of this proposed rule. Comments may be submitted 
by either of the following methods:
     Federal eRulemaking Portal: This Web site provides the 
ability to type short comments directly into the comment field on this 
Web page or attach a file for lengthier comments. Go to http://www.regulations.gov. Follow the online instructions at that site for 
submitting comments.
     Mail, including floppy disks or CD-ROMs, and hand- or 
courier-delivered items: Send to Docket Clerk, U.S. Department of 
Agriculture (USDA), FSIS, Room 2-2127, George Washington Carver Center, 
5601 Sunnyside Avenue, Beltsville, MD 20705-5272.
    Instructions: All items submitted by mail or electronic mail must 
include the Agency name and docket number FSIS-2010-0041. Comments 
received in response to this docket will be made available for public 
inspection and posted without change, including any personal 
information, to http://www.regulations.gov.
    Docket: For access to background documents or comments received, go 
to the FSIS Docket Room at the address listed above between 8 a.m. and 
4:30 p.m., Monday through Friday.

FOR FURTHER INFORMATION CONTACT: Dr. Daniel Engeljohn, Assistant 
Administrator, Office of Policy and Program Development, FSIS, U.S. 
Department of Agriculture, 1400 Independence Avenue, SW., Washington, 
DC 20250-3700, (202) 720- 2709.

SUPPLEMENTARY INFORMATION: 

Background

Regulatory Requirements for Non-Ambulatory Disabled Cattle

    Non-ambulatory disabled livestock are livestock that cannot rise 
from a recumbent position or that cannot walk, including, but not 
limited to, those with broken appendages, severed tendons or ligaments, 
nerve paralysis, fractured vertebral column, or metabolic condition (9 
CFR 309.2(b)). FSIS's ante-mortem inspection regulations require that 
establishment personnel notify FSIS inspection program personnel when 
cattle become non-ambulatory disabled after passing ante-mortem 
inspection (9 CFR 309.3(e)). The regulations require that all non-
ambulatory disabled cattle that are offered for slaughter, including 
those that become non-ambulatory disabled after passing ante-mortem 
inspection, be condemned and disposed of as provided in 9 CFR 309.13. 
The FSIS slaughter classes of cattle covered in this Notice include 
steers and heifers, bulls and cows (dairy and beef), and calves and 
heavy calves (that weigh more than 400 pounds). 9 CFR 309.13 prescribes 
requirements for the disposition of condemned livestock at official 
establishments.
    Except as otherwise provided for in the regulations, condemned 
livestock, including non-ambulatory disabled cattle, must be humanely 
euthanized by the establishment and the carcasses disposed of as 
provided in 9 CFR part 314, the regulations that prescribe requirements 
for the handling and disposition of condemned or other inedible 
products at official establishments (9 CFR 309.13(a)). Some livestock 
condemned at ante-mortem inspection due to certain reversible 
conditions, including veal calves that are non-ambulatory disabled 
because they are tired or cold, are permitted to be set apart and held 
for treatment under FSIS supervision (9 CFR 309.13(b)). The FSIS 
slaughter classes of veal calves are bob veal, formula-fed veal, and 
non-formula-fed veal. Livestock that are set apart for treatment are 
permitted to proceed to slaughter if, after receiving treatment, the 
animal is found to be free from disease. Thus, non-ambulatory disabled 
veal calves that are able to rise from a recumbent position and walk 
after they have been set aside and warmed or rested, and that are found 
to be otherwise free from disease, may be slaughtered for human food.
    When FSIS first issued regulations to prohibit the slaughter of 
non-ambulatory disabled cattle, it allowed inspection program personnel 
to determine, on a case-by-case basis, the disposition of cattle that 
became non-ambulatory disabled after passing ante-mortem inspection. 
Under this practice, if an FSIS Public Health Veterinarian (PHV) could 
verify that an animal became non-ambulatory after ante-mortem 
inspection solely because it suffered an acute injury, such as a broken 
appendage or a severed tendon or ligament, it could be tagged as ``U.S. 
Suspect'' and was eligible to proceed to

[[Page 6573]]

slaughter. Otherwise, the animal was condemned.
    In 2007, FSIS codified this practice as part of a final rule to 
affirm, with changes, interim measures that it had implemented in 2004 
to prevent potential human exposure to the Bovine Spongiform 
Encephalopathy (BSE)agent (``Prohibition of the Use of Specified Risk 
Materials for Human Food and Requirements for the Disposition of Non-
Ambulatory Disabled Cattle; Prohibition of the Use of Certain Stunning 
Devices Used To Immobilize Cattle During Slaughter'' (72 FR 38700)). 
The Agency had prohibited the slaughter of non-ambulatory disabled 
cattle for human food because cattle that cannot rise from a recumbent 
position are among the cattle that have a greater prevalence of BSE 
than healthy slaughter cattle and the typical clinical signs of BSE may 
not always be observed when cattle are non-ambulatory.
    In 2008, an investigation into alleged inhumane handling of non-
ambulatory disabled cattle at an official slaughter establishment 
indicated that the case-by-case disposition determination for cattle 
that became non-ambulatory disabled after passing ante-mortem 
inspection may not always ensure the proper disposition of these 
animals and may have created an incentive for establishments to 
inhumanely force non-ambulatory disabled cattle to rise. Therefore, in 
March 2009, FSIS issued a final rule that amended 9 CFR 309.3(e) to 
remove the provision that allowed FSIS PHVs to determine the 
disposition of cattle that became non-ambulatory disabled after they 
had passed ante-mortem inspection. In that rulemaking, FSIS made clear 
that ``* * * humane handling requires that such cattle be promptly 
euthanized'' (``Requirements for the Disposition of Cattle that Become 
Non-Ambulatory Disabled Following Ante-Mortem Inspection'' (74 FR 
11464)). In that rulemaking the Agency also noted that the amendment 
prohibiting the slaughter of non-ambulatory disabled cattle did not 
affect the provision that permits veal calves that are tired or cold to 
be set aside and treated (74 FR 11465).

Regulatory Requirements for Non-Ambulatory Disabled Livestock Other 
Than Cattle

    FSIS's ante-mortem inspection regulations do not require that non-
ambulatory disabled livestock other than cattle be condemned. Instead, 
animals that are suspected of being affected with a disease or 
condition that may require condemnation of the animal, in whole or in 
part, identified as ``U.S. Suspect'' (9 CFR 309.2(b)). Such animals are 
examined at ante-mortem inspection by an FSIS veterinarian, and a 
record of the veterinarian's clinical findings accompanies the carcass 
to post-mortem inspection if the animal is not condemned on ante-mortem 
inspection. Post-mortem inspections of the carcasses of ``U.S. 
Suspects'' livestock are performed by FSIS veterinarians rather than by 
food inspectors, and the results of this inspection are recorded. 
``U.S. Suspect'' animals, unless otherwise released pursuant to 9 CFR 
309.2(p), must be set apart and slaughtered separately (9 CFR 
309.2(n)). If, on post-mortem inspection, the meat and meat food 
products from such animals are found to be not adulterated, such 
products may be used for human food (9 CFR 311.1).
    During the 2007 rulemaking to require the condemnation of non-
ambulatory disabled cattle and the 2009 rulemaking to remove the case-
by-case disposition determination of cattle that became non-ambulatory 
after passing ante-mortem inspection, the Agency received numerous 
comments from animal welfare organizations and the citizens concerned 
about the private welfare of animals.\1\ The majority of these 
commenters encouraged FSIS to extend the ban on slaughter of non-
ambulatory disabled cattle to other livestock species to ensure that 
these animals are handled in a humane manner (72 FR 38722 and 74 FR 
11464).
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    \1\ The Agency received 23,000 comments to the 2007 rulemaking 
and 58,000 comments to the 2009 rulemaking.
---------------------------------------------------------------------------

    In response to the comments, FSIS noted that the purpose of the 
2007 rulemaking was to affirm measures that the Agency had implemented 
to prevent potential human exposure to the BSE agent. In response to 
comments submitted on the 2009 rulemaking, the Agency noted that the 
2009 rulemaking only addressed ante-mortem inspection and humane 
handling issues related to non-ambulatory disabled cattle. Thus, issues 
associated with humane handling of non-ambulatory disabled livestock 
other than cattle were outside the scope of these rulemakings. However, 
in both rulemakings, FSIS stated that it planned to evaluate measures 
that may be necessary to ensure the humane handling of other non-
ambulatory disabled livestock species (72 FR 38722 and 74 FR 11464).

HSUS Petition

    In November 2009, the HSUS submitted a petition requesting that 
FSIS amend the ante-mortem inspection regulations to remove the 
provision that allows veal calves that are non-ambulatory disabled 
because they are tired or cold to be set aside to be warmed or rested 
(hereinafter referred to as ``the veal calf set-aside provision'') (9 
CFR 309.13(b)). The petition requests that FSIS amend the regulations 
to remove the veal calf set-aside provision and require that all non-
ambulatory disabled veal calves be immediately and humanely euthanized. 
The petition is available for viewing by the public in the FSIS docket 
room and on the FSIS Web site at http://www.fsis.usda.gov/regulations_&_policies/Petitions/index.asp.
    To support the requested action, the petition references video 
footage from an HSUS undercover investigation at an official veal 
slaughter establishment in August 2009. The video footage documents 
incidents in which a veal slaughter establishment owner and his 
employees repeatedly use electric prods and physical force to attempt 
to get non-ambulatory disabled bob veal calves to rise.
    The petition asserts that the veal calf set-aside provision is 
inconsistent with the language and intent of the Humane Methods of 
Slaughter Act because it fails to ensure that the ``* * * handling of 
livestock in connection with slaughter * * * be carried out only by 
humane methods'' (7 U.S.C. 1902). The petition states that allowing 
non-ambulatory disabled veal calves to be set-aside for treatment is 
inherently inhumane because it encourages conduct such as dragging, 
kicking, excessive shocking, and other means of forced movement that 
are clearly prohibited by the HMSA and FSIS's implementing regulations 
in 9 CFR part 313.
    According to the petition, failing to require immediate euthanasia 
creates a financial incentive for establishments to engage in abusive 
conduct because a non-ambulatory disabled calf is worthless unless it 
is slaughtered. The petition states that the veal calf set-aside 
provision is also a means by which non-ambulatory veal calves may be 
left to linger indefinitely and then eventually forced to rise so that 
they can proceed to slaughter.
    In addition to being inconsistent with the HSMA, the petition 
argues that allowing non-ambulatory disabled veal calves to be set 
aside and treated is inconsistent with FSIS's own rules, policies, and 
conclusions with respect to other classes of non-ambulatory disabled 
cattle. The petition notes that FSIS amended 9 CFR 309.3(e) to remove 
the case-by-case disposition determination of cattle that became non-
ambulatory disabled after ante-mortem

[[Page 6574]]

inspection ``* * * to ensure that animals that may be unfit for human 
food do not proceed to slaughter and to improve the effectiveness and 
efficiency of the inspection system'' (74 FR 11463). The petition 
states that the same reasoning applies to non-ambulatory disabled veal 
calves. The petition asserts that removing the veal calf set-aside 
provision from 9 CFR 309.13(b) would eliminate uncertainty in 
determining whether veal calves are non-ambulatory disabled because 
they are tired or cold or because they are injured or sick, thereby 
ensuring the appropriate disposition of these animals. The petition 
also maintains that removing the veal calf set-aside provision would 
improve inspection efficiency by eliminating the time that FSIS 
inspection program personnel spend assessing and supervising the 
treatment of non-ambulatory disabled veal calves.
    The petition further argues that, just as removing the case-by-case 
disposition of non-ambulatory disabled cattle (other than veal) was 
needed to ensure that slaughter establishments handled these animals 
humanely, requiring the immediate euthanasia of non-ambulatory disabled 
veal calves will remove the incentive for slaughter establishments to 
inhumanely force these animals to rise so that they can proceed to 
slaughter. The petitioner also maintains that the practices used in the 
raising of veal calves, which, according to the petitioner, include 
inadequate transfer of antibodies from the mother's colostrum, iron 
deficient diets, intensive confinement, and lack of activity, result in 
calves that are acutely susceptible to conditions and injuries that 
increase the likelihood of them going down, either before or upon 
arrival at the slaughter facility. The petitioner asserts that removing 
the veal calf set-aside provision will eliminate incentive for veal 
calf producers to send extremely weak calves to slaughter, thereby 
improving the raising conditions for these animals.

Agency Review and Request for Comment on the HSUS Petition

    FSIS has carefully reviewed and considered the issues raised in the 
HSUS petition. The Agency is responsible for enforcing the HMSA and 
believes strongly in the importance of ensuring that animals are 
humanely handled in connection with slaughter. The Agency is concerned 
that the veal calves set-aside provision may create an incentive for 
establishments to inhumanely force non-ambulatory disabled veal calves 
to rise and for veal calf producers to send weakened calves to 
slaughter.
    The Agency also believes that prohibiting the slaughter of all non-
ambulatory disabled veal calves may remove potential uncertainty in 
determining the disposition of calves that have been set aside and 
would be consistent with the requirements for the other classes of non-
ambulatory disabled cattle.
    Therefore, the Agency has tentatively decided to grant the HSUS 
petition. Amending the Federal meat ante-mortem inspection regulations 
to prohibit the slaughter of non-ambulatory disabled veal calves would 
better ensure effective implementation of ante-mortem inspection 
pursuant to 21 U.S.C. 603(a) and of humane handling requirements 
established pursuant to 21 U.S.C. 603(b) of the Federal Meat Inspection 
Act (FMIA). FSIS has the authority under 21 U.S.C. 621 to adopt 
regulations for the efficient administration of the FMIA.
    According to the 2009 data from FSIS's Animal Disposition Reporting 
System (ADRS), about 157 U.S. federally-inspected establishments 
slaughtered about 521,000 calves for veal and veal products. All of the 
157 establishments were small entities, based on the criteria of the 
Small Business Administration (SBA).\2\
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    \2\ The Small Business Administration defines small businesses 
as those with less than 500 Full Time Equivalent (FTE) employees.
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    Although FSIS is inclined to grant HSUS's petition, before 
initiating rulemaking, the Agency has determined that it would be 
useful to solicit public input on the issues raised in the petition. 
Therefore, the Agency is issuing this notice to requests comments on 
the HSUS petition and the potential impact of granting the petition.

Farm Sanctuary Petition

    In March 2010, Farm Sanctuary submitted a petition requesting that 
FSIS amend the ante-mortem inspection regulations to require that non-
ambulatory disabled pigs, sheep, goats, and other amenable livestock 
species be condemned. The petition states that such action is needed to 
ensure that all livestock are humanely handled in connection with 
slaughter as required under the HMSA. The petition is available for 
viewing by the public in the FSIS docket room and on the FSIS Website 
at http://www.fsis.usda.gov/PDF/Petition_Humane_Handling.pdf.
    To support the requested action, the petition references a number 
of FSIS Non-Compliance Records (NRs) that Farm Sanctuary obtained 
through Freedom of Information Act (FOIA) requests. The NRs cited in 
the petition primarily documented incidents involving the inhumane 
handling of pigs. The NRs documented establishment personnel kicking, 
prodding, dragging, and otherwise trying to force non-ambulatory 
disabled pigs to move to slaughter. The NRs also documented incidents 
in which establishment personnel allowed ambulatory pigs to trample 
over ``downed'' pigs in the alleyway. The petition also references an 
NR in which non-ambulatory disabled sheep were denied access to food 
and water.
    The petition asserts that because FSIS continues to allow non-
ambulatory disabled livestock other than cattle to be slaughtered for 
human food, establishments have a financial incentive to force these 
animals through the slaughtering process, which encourages inhumane 
treatment. The petition also asserts that prohibiting the slaughter of 
all non-ambulatory disabled livestock will encourage livestock 
producers and transporters to improve their handling practices. The 
petition further notes that such action is needed to prevent diseased 
animals from entering the human food supply.

Agency Review and Request for Comment on the Farm Sanctuary Petition

    The Agency has reviewed the Farm Sanctuary petition requesting that 
it amend the ante-mortem inspection regulations to prohibit the 
slaughter of all non-ambulatory disabled livestock and to require such 
animals be humanely euthanized. However, the Agency has not yet 
determined how it intends to respond to the requested action. 
Therefore, to help inform its response, FSIS is soliciting comments on 
the issues raised in the petition.
    As noted earlier in this document, as part of its 2007 rulemaking 
to affirm measures that the Agency had implemented to prevent potential 
human exposure to the BSE agent, and as part of its 2009 rulemaking to 
require the condemnation of all non-ambulatory disabled cattle, FSIS 
received numerous comments requesting that it prohibit the slaughter of 
all non-ambulatory disabled livestock, including livestock other than 
cattle. However, the Agency did not fully evaluate the issues raised in 
those comments because issues related to the humane handling of 
livestock other than cattle were outside the scope of the 2007 and 2009 
proceedings.
    In response to the Farm Sanctuary petition, FSIS is now considering 
measures that may be necessary to ensure that non-ambulatory disabled

[[Page 6575]]

livestock other than cattle are humanely handled in connection with 
slaughter. Therefore, the Agency is soliciting comments on Farm 
Sanctuary's petition and the petition's request that all non-ambulatory 
disabled livestock at official establishments be condemned and promptly 
euthanized. After carefully considering the comments, FSIS intends to 
issue another Federal Register notice or proposed rulemaking related to 
addressing issues associated with the humane handling of livestock 
other than cattle at official establishments.

Clarification of the Requirements for Disposition of Cattle That Become 
Non-Ambulatory Disabled

    As mentioned above, the 2009 final rule amended FSIS' ante-mortem 
inspection regulations to prohibit the slaughter of all non-ambulatory 
disabled cattle, including those that become non-ambulatory disabled 
after passing ante-mortem inspection. The amendment, 9 CFR 309.3(e), 
states that, ``Establishment personnel must notify FSIS inspection 
personnel when cattle become non-ambulatory disabled after passing 
ante-mortem inspection. Non-ambulatory disabled cattle that are offered 
for slaughter must be condemned and disposed of in accordance with 
Sec.  309.13.''
    As stated in the preamble to that final rule, FSIS amended its 
regulations to require that all (emphasis added) cattle that are non-
ambulatory disabled at an official establishment, including those that 
become non-ambulatory disabled after passing ante-mortem inspection, be 
condemned and disposed of properly. The Agency also stated that it was 
not necessary to amend the regulations to require that non-ambulatory 
disabled cattle be humanely euthanized ``* * * because humane handling 
requires that such cattle be promptly euthanized'' (74 FR 11464). FSIS 
stated that the amendments would ensure more effective and efficient 
inspection procedures and improved compliance with the humane handling 
requirements (74 FR 11463).
    When reviewing the petitions submitted by HSUS and Farm Sanctuary, 
FSIS found that certain statements in the Agency's directive on ante-
mortem inspection (Directive 6100.1, Revision 1, Ante-Mortem Livestock 
Inspection (issued 4/16/09)) and in other Agency guidance may be 
inconsistent with the 2009 final rule. Therefore, the Agency recently 
issued an FSIS notice to make clear to its inspection program personnel 
that all ante-mortem condemned non-ambulatory disabled cattle, and 
cattle that become non-ambulatory disabled after passing ante-mortem 
inspection, must be promptly and humanely euthanized to ensure that 
they are humanely handled.
    As noted above, non-ambulatory disabled cattle are cattle that 
cannot rise from a recumbent position or walk, regardless of the reason 
for their non-ambulatory status. This includes cattle that are unable 
to rise due to a reversible condition, such as parturient paresis, 
ketosis, pneumonia, arthritis, injury and the other conditions 
identified in 9 CFR 309.13(b). Thus, non-ambulatory disabled cattle, 
other than those in the veal calf slaughter classes, cannot be set 
apart for any reason and held for treatment under supervision of FSIS 
inspection program personnel.
    The Agency will revise Directive 6100.1, Revision 1, and other 
guidance to ensure that they more clearly reflect the regulatory 
requirement that all non-ambulatory disabled cattle are condemned and 
must be promptly and humanely euthanized.

USDA Nondiscrimination Statement

    The U.S. Department of Agriculture (USDA) prohibits discrimination 
in all its programs and activities on the basis of race, color, 
national origin, gender, religion, age, disability, political beliefs, 
sexual orientation, and marital or family status. (Not all prohibited 
bases apply to all programs.)
    Persons with disabilities who require alternative means for 
communication of program information (Braille, large print, audiotape, 
etc.) should contact USDA's Target Center at 202-720-2600 (voice and 
TTY).
    To file a written complaint of discrimination, write USDA, Office 
of the Assistant Secretary for Civil Rights, 1400 Independence Avenue, 
SW., Washington, DC 20250-9410 or call 202-720-5964 (voice and TTY).

Additional Public Notification

    Public awareness of all segments of rulemaking and policy 
development is important. Consequently, in an effort to ensure that the 
public and in particular minorities, women, and persons with 
disabilities, are aware of this notice, FSIS will announce it on-line 
through the FSIS Web page located at http://www.fsis.usda.gov/regulations_&_policies/Federal_Register_Notices/index.asp.
    FSIS also will make copies of this Federal Register publication 
available through the FSIS Constituent Update, which is used to provide 
information regarding FSIS policies, procedures, regulations, Federal 
Register notices, FSIS public meetings, and other types of information 
that could affect or would be of interest to our constituents and 
stakeholders. The Update is communicated via Listserv, a free e-mail 
subscription service consisting of industry, trade, and farm groups, 
consumer interest groups, allied health professionals, scientific 
professionals, and other individuals who have requested to be included. 
The Update also is available on the FSIS Web page. Through Listserv and 
the Web page, FSIS is able to provide information to a much broader, 
more diverse audience.
    In addition, FSIS offers an e-mail subscription service which 
provides automatic and customized access to selected food safety news 
and information. This service is available at http://www.fsis.usda.gov/News_&_Events/Email_Subscription/. Options range from recalls to 
export information to regulations, directives and notices. Customers 
can add or delete subscriptions themselves, and have the option to 
password protect their accounts.

    Done at Washington, DC, on February 1, 2011.
Alfred Almanza,
Administrator.
[FR Doc. 2011-2504 Filed 2-4-11; 8:45 am]
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