Federal Register, Volume 76 Issue 48 (Friday, March 11, 2011)

[Federal Register Volume 76, Number 48 (Friday, March 11, 2011)]
[Proposed Rules]
[Pages 13300-13304]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-5677]

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Proposed Rules
Federal Register
________________________________________________________________________

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. 48 / Friday, March 11, 2011 /
Proposed Rules

[[Page 13300]]

DEPARTMENT OF ENERGY

10 CFR Parts 600, 603, 609, and 611

RIN 1990-AA36

Procedures for Submitting to the Department of Energy Trade
Secrets and Commercial or Financial Information That Is Privileged or
Confidential

AGENCY: Office of the General Counsel, Department of Energy (DOE).

ACTION: Notice of proposed rulemaking; request for comment.

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SUMMARY: DOE proposes to standardize across its various programs
procedures for the submission and protection of trade secrets and
commercial or financial information that is privileged or confidential,
where such information is submitted by applicants for various forms of
DOE assistance (including financial assistance such as grants,
cooperative agreements, and technology investment agreements, as well
as loans and loan guarantees). The procedures that would be established
across DOE programs are modeled after existing procedures DOE uses to
process loan applications submitted to DOE's Advanced Technology
Vehicles Manufacturing Incentive Program.

DATES: Comments on these proposed procedures must be postmarked by
April 11, 2011.

ADDRESSES: Interested parties may submit comments, identified by
Regulation Identifier Number (RIN) 1990-AA36, by any of the following
methods:
1. Federal eRulemaking Portal: http://www.regulations.gov. Follow
the instructions for submitting comments.
2. E-mail: 1990-AA36@hq.doe.gov. Include RIN 1990-AA36 in the
subject line of the message.
3. Postal Mail: Office of the General Counsel, U.S. Department of
Energy, Room 6A-245, 1000 Independence Avenue, SW., Washington, DC
20585-0121. Please submit one signed paper original and include RIN
1990-AA36 on your submission.
4. Hand Delivery/Courier: Office of the General Counsel, U.S.
Department of Energy, Room 6A-245, 1000 Independence Avenue, SW.,
Washington, DC 20585-0121. Telephone: (202) 586-5281. Please submit one
signed paper original and include RIN 1990-AA36 on your submission.

FOR FURTHER INFORMATION CONTACT: Daniel Cohen, Assistant General
Counsel for Legislation, Regulation and Energy Efficiency, U.S.
Department of Energy, 1000 Independence Avenue, SW., Washington, DC
20585-0121. Telephone: (202) 586-9523. E-mail: 1990-AA36@hq.doe.gov.
Include RIN 1990-AA36 in the subject line of the message.

SUPPLEMENTARY INFORMATION: DOE provides assistance to eligible
applicants through a number of different programs. This assistance can
take the form of financial assistance (i.e., grants, cooperative
agreements, and technology investment agreements), loan guarantees, and
direct loans, among others. DOE has consistently sought to protect
trade secrets and commercial or financial information that is
privileged or confidential submitted by applicants for these forms of
assistance, but the procedures required of applicants when submitting
such information can vary. DOE proposes procedures for the submission
to DOE of trade secrets and commercial or financial information that is
privileged or confidential meant to standardize DOE's procedures for
processing and handling applicant submissions containing such
information. The procedures proposed in this rulemaking are modeled
after existing procedures DOE uses to process loan applications
submitted to DOE's Advanced Technology Vehicles Manufacturing Incentive
Program.
DOE proposes minor changes to the Notice of Restriction on
Disclosure and Use of Data in 10 CFR 600.15(b)(1), as well as
corresponding changes to 10 CFR 600.15(a) and 600.15(b)(2) and (3).
These changes are intended to allow for cross reference from other
portions of subpart H (specifically, parts 609--Loan Guarantees for
Projects that Employ Innovative Technologies and 611--Advanced
Technology Vehicles Manufacturer Assistance Program) while recognizing
that part 600 does not otherwise apply to loans and loan guarantees.
DOE proposes to amend 10 CFR 600.15(b)(1) to require a party
submitting information to DOE, at the time of submission, to identify
and assert a claim of exemption regarding information it considers to
be trade secrets or commercial or financial information that is
privileged or confidential such that the information would be exempt
from disclosure under the Freedom of Information Act (FOIA, 5 U.S.C.
552). This claim of exemption must be made by placing the following
notice on the first page of the application or other document and
specifying the page or pages to be restricted: ``Pages [----] of this
document may contain trade secrets or commercial or financial
information that is privileged or confidential and exempt from public
disclosure. Such information shall be used or disclosed only for
evaluation purposes or in accordance with a financial assistance or
loan agreement between the submitter and the Government. The Government
may use or disclose any information that is not appropriately marked or
otherwise restricted, regardless of source.''
To further protect trade secrets and commercial or financial
information that is privileged or confidential, DOE also proposes to
add a requirement in section 600.15(b)(1) that each page containing
such data must be specifically identified and marked with text that is
similar to the following: ``May contain trade secrets or commercial or
financial information that is privileged or confidential and exempt
from public disclosure.'' In addition, each line or paragraph
containing trade secrets or commercial or financial information that is
privileged or confidential on the page or pages on which this statement
appears must be marked with brackets or other clear identification,
such as highlighting.
DOE acknowledges that the marking procedures set forth above may
not be feasible on unalterable forms submitted through Grants.gov. In
such cases only, DOE proposes that submitters include in a cover letter
or the project narrative a notice containing language substantially
similar to the following: ``Forms [----] may contain trade secrets or
commercial or financial information that is

[[Page 13301]]

privileged or confidential and exempt from public disclosure. Such
information shall be used or disclosed only for evaluation purposes or
in accordance with a financial assistance or loan agreement between the
submitter and the Government. The Government may use or disclose any
information that is not appropriately marked or otherwise restricted,
regardless of source.'' The cover letter or project narrative must also
specify the particular information on such forms that the submitter
believes to be trade secrets or commercial or financial information
that is privileged or confidential.
DOE also proposes to amend 10 CFR 603.850 to require that the
markings affixed to data for technology investment agreements that may
contain trade secrets or commercial or financial information that is
privileged or confidential conform to the marking requirements of 10
CFR 600.15.
DOE further proposes that the regulations implementing its loan
guarantee program for projects that employ innovative technologies
under Title XVII of the Energy Policy Act of 2005 (42 U.S.C. 16511-
16514) cross-reference 10 CFR 600.15. These regulations are set forth
at 10 CFR part 609. DOE proposes to establish the same marking
requirements as described above for any information submitted through
the Title XVII loan application process, including pre-applications,
applications, and any additional information provided by loan
applicants. Similarly, DOE proposes that the regulations implementing
its Advanced Technology Vehicles Manufacturing (ATVM) Incentive Program
at 10 CFR part 611 cross-reference 10 CFR 600.15. DOE already applies
to the ATVM program procedures virtually identical to those proposed in
this notice. DOE here proposes to establish the marking requirements
described above in the program's implementing regulations.

Procedural Issues and Regulatory Review

A. Review Under Executive Order 12866

This proposed rule has been determined to be not significant for
purposes of Executive Order 12866.

B. Review Under the Regulatory Flexibility Act

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires
preparation of a final regulatory flexibility analysis (FRFA) for any
rule that by law must be proposed for public comment, unless the agency
certifies that the rule, if promulgated, will not have a significant
economic impact on a substantial number of small entities. As required
by Executive Order 13272, ``Proper Consideration of Small Entities in
Agency Rulemaking'' 67 FR 53461 (Aug. 16, 2002), DOE published
procedures and policies on February 19, 2003, to ensure that the
potential impacts of its rules on small entities are properly
considered during the rulemaking process. 68 FR 7990. DOE has made its
procedures and policies available on the Office of the General
Counsel's Web site (http://www.gc.doe.gov).
DOE has reviewed today's proposed rule under the Regulatory
Flexibility Act and certifies that, if adopted, the rule would not have
a significant impact on a substantial number of small entities. While
DOE recognizes that some applicants for assistance may be small
businesses according to SBA size standards, DOE believes that the
impact on such applicants of the proposed rule would not be
significant. The proposed rule does not change the information
applicants are required to submit to apply for the various forms of DOE
assistance. It merely instructs applicants how to mark information that
they believe to be trade secrets or commercial or financial information
that is privileged or confidential.

C. Review Under the Paperwork Reduction Act

The information collection requirements for the various forms of
assistance to which the marking requirements in this proposed rule
would apply have been approved under OMB Control Numbers 1910-0400
(Financial Assistance Regulations) and 1910-5134 (Title XVII loan
guarantee program).
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB Control Number.

D. Review Under the National Environmental Policy Act

In this proposed rule, DOE proposes procedures for the submission
of information relating to various forms of assistance, including
grants, cooperative agreements, technology investment agreements,
loans, and loan guarantees. DOE has determined that this rule falls
into a class of actions that are categorically excluded from review
under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et
seq.) and DOE's implementing regulations at 10 CFR part 1021.
Specifically, this proposed rule is a procedural rule covered by
Categorical Exclusion A6 under 10 CFR part 1021, subpart D, which
applies to any rulemaking that is strictly procedural in nature.
Accordingly, neither an environmental assessment nor an environmental
impact statement is required.

E. Review Under Executive Order 13132

Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 4,
1999), imposes certain requirements on agencies formulating and
implementing policies or regulations that preempt State law or that
have other federalism implications. The Executive Order requires
agencies to examine the constitutional and statutory authority
supporting any action that would limit the policymaking discretion of
the States and to carefully assess the necessity for such actions. The
Executive Order also requires agencies to have an accountable process
to ensure meaningful and timely input by State and local officials in
the development of regulatory policies that have federalism
implications. On March 14, 2000, DOE published a statement of policy
describing the intergovernmental consultation process it will follow in
the development of such regulations. 65 FR 13735. DOE has considered
today's proposed rule in accordance with Executive Order 13132 and its
policy and determined that this proposed rule setting forth
requirements for the marking of trade secrets and commercial or
financial information that is privileged or confidential, if adopted,
would not preempt State law or have any federalism impacts. No further
action is required by Executive Order 13132.

F. Review Under Executive Order 12988

With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of Executive Order 12988,
``Civil Justice Reform,'' imposes on Federal agencies the general duty
to adhere to the following requirements: (1) Eliminate drafting errors
and ambiguity; (2) write regulations to minimize litigation; and (3)
provide a clear legal standard for affected conduct rather than a
general standard and promote simplification and burden reduction. 61 FR
4729 (February 7, 1996). Section 3(b) of Executive Order 12988
specifically requires that Executive agencies make every reasonable
effort to ensure that the regulation: (1) Clearly specifies the
preemptive effect, if any; (2) clearly specifies any effect on existing
Federal law or regulation; (3) provides a clear

[[Page 13302]]

legal standard for affected conduct while promoting simplification and
burden reduction; (4) specifies the retroactive effect, if any; (5)
adequately defines key terms; and (6) addresses other important issues
affecting clarity and general draftsmanship under any guidelines issued
by the Attorney General. Section 3(c) of Executive Order 12988 requires
Executive agencies to review regulations in light of applicable
standards in section 3(a) and section 3(b) to determine whether they
are met or it is unreasonable to meet one or more of them. DOE has
completed the required review and determined that this proposed rule
meets the relevant standards of Executive Order 12988.

G. Review Under the Unfunded Mandates Reform Act of 1995

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub.
L. 104-4) requires each Federal agency to assess the effects of Federal
regulatory actions on State, local, and Tribal governments and the
private sector. For proposed regulatory actions likely to result in a
rule that may cause expenditures by State, local, and Tribal
governments, in the aggregate, or by the private sector of $100 million
or more in any one year (adjusted annually for inflation), section 202
of UMRA requires a Federal agency to publish estimates of the resulting
costs, benefits, and other effects on the national economy. (2 U.S.C.
1532(a), (b).) UMRA also requires Federal agencies to develop an
effective process to permit timely input by elected officers of State,
local, and Tribal governments on a proposed ``significant
intergovernmental mandate.'' In addition, UMRA requires an agency plan
for giving notice and opportunity for timely input to small governments
that may be affected before establishing a requirement that might
significantly or uniquely affect them. On March 18, 1997, DOE published
a statement of policy on its process for intergovernmental consultation
under UMRA. (62 FR 12820.) (This policy is also available at http://www.gc.doe.gov). Today's proposed rule contains neither an
intergovernmental mandate, nor a mandate that may result in the
expenditure of $100 million or more in any year, so these requirements
do not apply.

H. Review Under the Treasury and General Government Appropriations Act,
1999

Section 654 of the Treasury and General Government Appropriations
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family
Policymaking Assessment for any rule that may affect family well-being.
This proposed rule would not have any impact on the autonomy or
integrity of the family as an institution. Accordingly, DOE has
concluded that it is not necessary to prepare a Family Policymaking
Assessment.

I. Review Under Executive Order 12630

DOE has determined, under Executive Order 12630, ``Governmental
Actions and Interference with Constitutionally Protected Property
Rights,'' 53 FR 8859 (March 18, 1988), that this regulation would not
result in any takings which might require compensation under the Fifth
Amendment to the U.S. Constitution.

J. Review Under the Treasury and General Government Appropriations Act,
2001

Section 515 of the Treasury and General Government Appropriations
Act, 2001 (44 U.S.C. 3516, note) provides for agencies to review most
disseminations of information to the public under guidelines
established by each agency pursuant to general guidelines issued by
OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and
DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). DOE has
reviewed today's notice under the OMB and DOE guidelines and has
concluded that it is consistent with applicable policies in those
guidelines.

K. Review Under Executive Order 13211

Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355
(May 22, 2001), requires Federal agencies to prepare and submit to OIRA
at OMB a Statement of Energy Effects for any proposed significant
energy action. A ``significant energy action'' is defined as any action
by an agency that promulgates or is expected to lead to promulgation of
a final rule, and that (1) is a significant regulatory action under
Executive Order 12866 or any successor order; and (2) is likely to have
a significant adverse effect on the supply, distribution, or use of
energy; or (3) is designated by the Administrator of OIRA as a
significant energy action. For any proposed significant energy action,
the agency must give a detailed statement of any adverse effects on
energy supply, distribution, or use should the proposal be implemented,
and of reasonable alternatives to the action and their expected
benefits on energy supply, distribution, and use.
DOE has concluded that today's regulatory action, which would
establish marking requirements for information submitted to DOE that
the submitter believes to be trade secrets or commercial or financial
information that is privileged or confidential, is not a significant
energy action because the proposed standards are not likely to have a
significant adverse effect on the supply, distribution, or use of
energy, nor has it been designated as such by the Administrator at
OIRA. Accordingly, DOE has not prepared a Statement of Energy Effects
for the proposed rule.

L. Review Under the Information Quality Bulletin for Peer Review

On December 16, 2004, OMB, in consultation with the Office of
Science and Technology Policy, issued its Final Information Quality
Bulletin for Peer Review (the Bulletin). 70 FR 2664 (Jan. 14, 2005).
The Bulletin establishes that certain scientific information shall be
peer reviewed by qualified specialists before it is disseminated by the
Federal Government, including influential scientific information
related to agency regulatory actions. The purpose of the bulletin is to
enhance the quality and credibility of the Government's scientific
information. DOE has determined that today's proposed rule does not
contain any influential or highly influential scientific information
that would be subject to the peer review requirements of the OMB
Bulletin.

Approval of the Office of the Secretary

The Secretary of Energy has approved publication of this proposed
rule.

List of Subjects in 10 CFR Parts 600, 603, 609, and 611

Accounting, Administrative practice and procedure, Colleges and
universities, Confidential business information, Energy, Government
contracts, Grant programs, Hospitals, Indians, Intergovernmental
relations, Loan programs, Lobbying, Nonprofit organizations, Penalties,
Reporting and recordkeeping requirements.

Issued in Washington, DC, on March 7, 2011.
Steven Chu,
Secretary of Energy.

For the reasons stated in the preamble, DOE proposes to amend
Subchapter H of Chapter II of Title 10, Code of Federal Regulations, to
read as set forth below:

PART 600--FINANCIAL ASSISTANCE RULES

1. The authority citation for part 600 continues to read as
follows:

[[Page 13303]]

Authority: 42 U.S.C. 7101 et seq; 31 U.S.C. 6301-6308; 50 U.S.C.
2401 et seq., unless otherwise noted.

2. Section 600.15 is revised to read as follows:

Sec. 600.15 Authorized uses of information.

(a) General. Information contained in applications shall be used
only for evaluation purposes unless such information is generally
available to the public or is already the property of the Government.
The Trade Secrets Act, 18 U.S.C. 1905, prohibits the unauthorized
disclosure by Federal employees of trade secret and confidential
business information.
(b) Treatment of application information. (1) An application or
other document, including any unsolicited information, may include
technical data and other data, including trade secrets and commercial
or financial information that is privileged or confidential, which the
applicant does not want disclosed to the public or used by the
Government for any purpose other than application evaluation.
(i) To protect such data, the submitter must mark the cover sheet
of the application or other document with the following Notice:

Notice of Restriction on Disclosure and Use of Data

Pages [----] of this document may contain trade secrets or
commercial or financial information that is privileged or
confidential and is exempt from public disclosure. Such information
shall be used or disclosed only for evaluation purposes or in
accordance with a financial assistance or loan agreement between the
submitter and the Government. The Government may use or disclose any
information that is not appropriately marked or otherwise
restricted, regardless of source.

(ii) (A) To further protect such data, except as otherwise provided
in paragraph (b)(1)(iii) of this section, each page containing trade
secrets or commercial or financial information that is privileged or
confidential must be specifically identified and marked with text
similar to the following:
May contain trade secrets or commercial or financial information
that is privileged or confidential and exempt from public disclosure.
(B) In addition, each line or paragraph containing trade secrets or
commercial or financial information that is privileged or confidential
must be marked with brackets or other clear identification, such as
highlighting.
(iii) (A) In the case where a form for data submission is
unalterable, such as certain forms submitted through Grants.gov,
submitters must include in a cover letter or the project narrative a
notice like the following:

Forms [----] may contain trade secrets or commercial or
financial information that is privileged or confidential and exempt
from public disclosure. Such information shall be used or disclosed
only for evaluation purposes or in accordance with a financial
assistance or loan agreement between the submitter and the
Government. The Government may use or disclose any information that
is not appropriately marked or otherwise restricted, regardless of
source.

(B) The cover letter or project narrative must also specify the
particular information on such forms that the submitter believes
contains trade secrets or commercial or financial information that is
privileged or confidential.
(2) Unless DOE specifies otherwise, DOE shall not refuse to
consider an application or other document solely on the basis that the
application or other document is restrictively marked in accordance
with paragraph (b)(1) of this section.
(3) Data (or abstracts of data) specifically marked in accordance
with paragraph (b)(1) of this section shall be used by DOE or its
designated representatives solely for the purpose of evaluating the
proposal. The data so marked shall not be disclosed or used for any
other purpose except to the extent provided in any resulting assistance
agreement, or to the extent required by law, including the Freedom of
Information Act (5 U.S.C. 552) (10 CFR part 1004). The Government shall
not be liable for disclosure or use of unmarked data and may use or
disclose such data for any purpose.
(4) This process enables DOE to follow the provisions of 10 CFR
1004.11(d) in the event a Freedom of Information Act (5 U.S.C. 552)
request is received for the data submitted, such that information not
identified as subject to a claim of exemption may be released without
obtaining the submitter's views under the process set forth in 10 CFR
1004.11(c)

PART 603--TECHNOLOGY INVESTMENT AGREEMENTS

3. The authority citation for part 603 continues to read as
follows:

Authority: 42 U.S.C. 7101 et seq.; 31 U.S.C. 6301-6308; 50
U.S.C. 2401 et seq., unless otherwise noted.

4. Section 603.850 is revised to read as follows:

Sec. 603.850 Marking of data.

To protect the recipient's interests in data, the TIA should
require the recipient to mark any particular data that it wishes to
protect from disclosure as specified in 10 CFR 600.15(b).

PART 609--LOAN GUARANTEES FOR PROJECTS THAT EMPLOY INNOVATIVE
TECHNOLOGIES

5. The authority citation for part 609 continues to read as
follows:

Authority: 42 U.S.C. 7254, 16511-16514.

6. Section 609.4 is amended by revising the introductory text to
read as follows:

Sec. 609.4 Submission of Pre-Applications.

In response to a solicitation requesting the submission of Pre-
Applications, either Project Sponsors or Applicants may submit Pre-
Applications to DOE. The information submitted in or in connection with
Pre-Applications will be treated as provided in 10 CFR 600.15 and must
be marked as provided in 10 CFR 600.15(b). Pre-Applications must meet
all requirements specified in the solicitation and this part. At a
minimum, each Pre-Application must contain all of the following:
* * * * *
7. Section 609.5 is amended by revising paragraph (d) to read as
follows:

Sec. 609.5 Evaluation of Pre-Applications.

* * * * *
(d) After the evaluation described in paragraph (c) of this
section, DOE will determine if there is sufficient information in the
Pre-Application to assess the technical and commercial viability of the
proposed project and/or the financial capability of the Project Sponsor
and to assess other aspects of the Pre-Application. DOE may ask for
additional information from the Project Sponsor during the review
process and may request one or more meetings with the Project Sponsor.
Any additional information submitted will be treated as provided in 10
CFR 600.15 and must be marked as provided in 10 CFR 600.15(b).
* * * * *
8. Section 609.6 is amended by revising paragraph (a) to read as
follows:

Sec. 609.6 Submission of Applications.

(a) In response to a solicitation or written invitation to submit
an Application, an Applicant submitting an Application must meet all
requirements and provide all information specified in the solicitation
and/or invitation and this part. The information submitted in or in
connection with Applications will be treated as provided in 10 CFR
600.15 and must be marked as provided in 10 CFR 600.15(b).
* * * * *
9. Section 609.7 is amended by revising paragraph (c) to read as
follows:

[[Page 13304]]

Sec. 609.7 Programmatic, technical and financial evaluation of
Applications.

* * * * *
(c) During the Application review process DOE may raise issues or
concerns that were not raised during the Pre-Application review process
where a Pre-Application was requested in the applicable solicitation.
Any additional information submitted to DOE will be treated as provided
in 10 CFR 600.15 and must be marked as provided in 10 CFR 600.15(b).
* * * * *

PART 611--ADVANCED TECHNOLOGY VEHICLES MANUFACTURER ASSISTANCE
PROGRAM

10. The authority citation for part 611 continues to read as
follows:

Authority: Pub.L. 110-140 (42 U.S.C. 17013), Pub. L. 110-329.

11. Section 611.101 is amended by revising the introductory text to
read as follows:

Sec. 611.101 Application.

The information and materials submitted in or in connection with
applications will be treated as provided in 10 CFR 600.15 and must be
marked as provided in 10 CFR 600.15(b). An application must include, at
a minimum, the following information and materials:
* * * * *
12. Section 611.103 is amended by revising paragraph (a) to read as
follows:

Sec. 611.103 Application evaluation.

(a) Eligibility screening. Applications will be reviewed to
determine whether the applicant is eligible, the information required
under Sec. 611.101 is complete, and the proposed loan complies with
applicable statutes and regulations. DOE can at any time reject an
application, in whole or in part, that does not meet these
requirements. Any additional information submitted to DOE will be
treated as provided in 10 CFR 600.15 and must be marked as provided in
10 CFR 600.15(b).
* * * * *
[FR Doc. 2011-5677 Filed 3-10-11; 8:45 am]
BILLING CODE 6450-01-P