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October 6, 2008, Alert No. 1,838.
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DOJ Releases Guidelines for FBI Operations

10/3. The Department of Justice (DOJ) released a document [46 pages in PDF] titled "The Attorney General's Guidelines for Domestic FBI Operations".

These guidelines address, among other things, the Federal Bureau of Investigation's (FBI) use of communications and information technologies in conducting assessments, preliminary investigations, full investigations, and enterprise investigations.

These guidelines take effect on December 1, 2008.

This document states that "the principal directives of the Attorney General governing the FBI's conduct of criminal investigations, national security investigations, and foreign intelligence collection have persisted as separate documents involving different standards and procedures for comparable activities. These Guidelines effect a more complete integration and harmonization of standards, thereby providing the FBI and other affected Justice Department components with clearer, more consistent, and more accessible guidance for their activities, and making available to the public in a single document the basic body of rules for the FBI's domestic operations." See also, DOJ summary of the guidelines.

Robert MuellerThe DOJ released a joint statement of Attorney General Michael Mukasey and FBI Director Robert Mueller (at left). They stated that "The guidelines are designed to allow the FBI to become, among other things, a more flexible and adept collector of intelligence".

They also asserted that "these guidelines reflect consultation with Congress as well as privacy and civil liberties groups".

The DOJ released these guidelines just as the Congress began a long recess. Hence, any hearings on these guidelines will be delayed at least well into the year 2009.

Reaction. Sen. Patrick Leahy (D-VT), Chairman of the Senate Judiciary Committee (SJC), and privacy and civil liberties groups promptly criticized these guidelines.

Sen. Patrick LeahySen. Leahy criticized the DOJ for both not seeking input from the SJC, and for expanding investigative authority without privacy protections.

He stated in a release that "I remain disappointed that, despite several bipartisan requests to share these guidelines with members of the Judiciary Committee so that the Committee could provide meaningful input, the Attorney General has instead moved forward to implement new FBI guidelines for domestic operations. I am concerned that the guidelines continue the pattern of this administration of expanding authority to gather and use Americans' private information without protections for privacy or checks to prevent abuse and misuse."

He continued that "The FBI has itself abused overly broad authorities it has been given in the past, including the misuse of National Security Letters and so-called exigent letters. It appears that with these guidelines, the Attorney General is once again giving the FBI broad new powers to conduct surveillance and use other intrusive investigative techniques on Americans without requiring any indication of wrongdoing or any approval even from FBI supervisors."

Finally, Sen. Leahy noted that the SJC has uncovered "abuses and misuses of power in this administration", and predicted that "oversight of the implementation of these guidelines for domestic operations and investigations will be integral to the Judiciary Committee's oversight efforts in the next Congress."

The Center for Democracy and Technology (CDT) stated in its web site that these guidelines weaken "the standards that have long been in place to ensure proper targeting of law enforcement and national security investigations. The guidelines represent another step in the creation of a domestic intelligence system in the United States."

The American Civil Liberties Union (ACLU) stated in a release that "the threshold to beginning investigations across the board will be lowered".

The ACLU's Anthony Romero, stated in this release that "The attorney general today gave the FBI a blank check to open investigations of innocent Americans based on no meaningful suspicion of wrongdoing".

The ACLU's Caroline Fredrickson stated in this release that "Attorney General Mukasey has decided to implement these disastrous guidelines against the protests of members of Congress, privacy groups and the American public". She added that "It is nave to think these guidelines will not result in abuse."

Summary of Guidelines. The following summary focuses on those portions of the guidelines that pertain to surveillance and data acquisition involving communications and information technologies.

The document contains a section titled "Classified Investigative Technologies". It does not explain this term.

It states only that "Inappropriate use of classified investigative technologies may risk the compromise of such technologies. Hence, in an investigation relating to activities in violation of federal criminal law that does not concern a threat to the national security or foreign intelligence, the use of such technologies must be in conformity with the Procedures for the Use of Classified Investigative Technologies in Criminal Cases."

These classified investigative technologies may constitute methods that the DOJ interprets to be outside of existing statutory frameworks, and not subject to 4th Amendment protections. These interpretations would be made without judicial review or Congressional oversight.

These guidelines break FBI investigations down into four broad categories: assessments, preliminary investigations, full investigations, and enterprise investigations. It then enumerates, in broad language, which investigative techniques and methods may be used for each category of investigation.

The guidelines state that assessments "require an authorized purpose but not any particular factual predication".

The authorized methods of investigation for assessments are limited. However, the authorized methods include "Use online services and resources (whether nonprofit or commercial)", "Engage in observation or surveillance not requiring a court order", and "Grand jury subpoenas for telephone or electronic mail subscriber information". (Parentheses in original.)

The guidelines state that preliminary and full investigation are "predicated investigations". Prediction is "allegations, reports, facts or circumstances indicative of possible criminal or national security-threatening activity, or the potential for acquiring information responsive to foreign intelligence requirements".

The guidelines then vaguely state that "Preliminary investigations may be initiated on the basis of any allegation or information indicative of possible criminal or national security-threatening activity, but more substantial factual predication is required for full investigations."

There are several significant limitations on methods available in preliminary investigations. The methods must be "lawful". Also, the FBI may not use wiretaps under 18 U.S.C. 2510-2522, "physical searches, such as mail openings", or "Acquisition of foreign intelligence information in conformity with title VII of the Foreign Intelligence Surveillance Act."

The guidelines then enumerate the broad range of investigative methods available for full investigations and enterprise investigations. This latter category is a "general examination of the structure, scope, and nature of certain groups and organizations".

The guidelines note that "Authorized methods include, but are not limited to, those identified in the following list."

This list includes "Mail covers".

The list also includes "Physical searches of personal or real property where a warrant or court order is not legally required because there is no reasonable expectation of privacy (e.g., trash covers)." (Parentheses in original.)

This "no reasonable expectation of privacy" clause references a huge class of methods. For example, there is not yet a federal court of appeals holding that stored e-mail sent or received through a commercial ISP is subject to a reasonable expectation of privacy, and hence, subject to the 4th Amendment requirements of probable cause and a court order.

The DOJ's interpretation is that 4th Amendment protection does not apply to this stored e-mail. Moreover, the DOJ interprets that a wide range of communications and technologies that involve third party carriers, ISPs, and remote servers are not subject to a reasonable expectation of privacy, even though the functional equivalents in paper, brick and mortar, or analog technologies have been held to be subject to a reasonable expectation of privacy.

The U.S. Court of Appeals (6thCir) briefly held that there is a reasonable expectation of privacy in stored e-mail, but then vacated its opinion on ripeness grounds.

See, June 18, 2007, opinion [20 pages in PDF] in Warshak v. U.S., and story titled "6th Circuit Holds That People Have a Reasonable Expectation of Privacy in E-Mail Stored With, or Sent or Received Through, an ISP" in TLJ Daily E-Mail Alert No. 1,597, June 19, 2007. See also, July 11, 2008, en banc opinion [15 pages in PDF], and story titled "6th Circuit En Banc Panel Holds Warshak Case Lacks Ripeness" in TLJ Daily E-Mail Alert No. 1,794, July 15, 2008.

Next, the guidelines authorize "Consensual monitoring of communications, including consensual computer monitoring", and "Use of closed-circuit television, direction finders, and other monitoring devices". The guidelines do not elaborate on the meaning of "other monitoring devices".

The guidelines also authorize "Polygraph examinations".

The guidelines authorize "Compulsory process as authorized by law, including grand jury subpoenas and other subpoenas, National Security Letters (15 U.S.C. 168 lu, 168 1v; 18 U.S.C. 2709; 12 U.S.C. 3414(a)(5)(A); 50 U.S.C. 436), and Foreign Intelligence Surveillance Act orders for the production of tangible things (50 U.S.C. 1861-63)." (Parentheses in original.)

The guidelines authorize "Accessing stored wire and electronic communications and transactional records in conformity with chapter 121 of title 18, United States Code (18 U.S.C. 2701- 2712)." (Parentheses in original.)

The guidelines authorize "Use of pen registers and trap and trace devices in conformity with chapter 206 of title 18, United States Code (18 U.S.C. 3121-3127), or the Foreign Intelligence Surveillance Act (50 U.S.C. 1841-1846)." (Parentheses in original.)

The guidelines authorize "Electronic surveillance in conformity with chapter 119 of title 18, United States Code (18 U.S.C. 2510-2522), the Foreign Intelligence Surveillance Act, or Executive Order 12333 2.5." (Parentheses in original.)

The guidelines authorize "Physical searches, including mail openings, in conformity with Rule 41 of the Federal Rules of Criminal Procedure, the Foreign Intelligence Surveillance Act, or Executive Order 12333 2.5."

The guidelines authorize "Acquisition of foreign intelligence information in conformity with title VII of the Foreign Intelligence Surveillance Act."

The guidelines also authorize "otherwise illegal activity" by FBI agents, employees, and a "human source", with the authorization by the DOJ specified in the guidelines. This includes authorization of "consensual monitoring of communications, even if a crime under state, local, or tribal law".

However, the guidelines then add that "The following activities may not be authorized:  ... Activities whose authorization is prohibited by law, including unlawful investigative methods, such as illegal electronic surveillance or illegal searches".

The guidelines also address the sharing of information. However, the guidelines do not disclose authorized methods for data storage, data aggregation, or data analysis.

9th Circuit Affirms Dismissal of Establishment Clause Case Involving State Funded Web Site

10/3. The U.S. Court of Appeals (9thCir) released its opinion [14 pages in PDF] in Caldwell v. Caldwell, an establishment clause challenge to a state university's web site.

The University of California at Berkeley maintains a web site titled "Understanding Evolution", which also references religion. The development of this web site was funded by the state of California and the federal government through a grant from the National Science Foundation (NSF).

The first amendment of the Constitution provides, in part, that "Congress shall make no law respecting an establishment of religion ...". The Supreme Court has held that this also restricts state action.

Jeanne Caldwell is a resident of the state of California. She filed a complaint in U.S. District Court (NDCal) against Roy Caldwell and others, in their capacity as government employees, alleging violation of 42 U.S.C. 1983.

Section 1983 provides, in part, that "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

Jeanne Caldwell sought an injunction restraining publication of the web site and a judgment declaring that inclusion of the religious and anti-religious materials in the web site are unconstitutional.

The District Court ducked the Constitutional issue. Rather, it dismissed the complaint on the grounds that Caldwell lacked standing to sue. The Court of Appeals affirmed. It concluded that she did not show injury in fact.

This case is Jeanne Caldwell v. Roy Caldwell, et al., U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 06-15771, an appeal from the U.S. District Court for the Northern District of California, D.C. No. CV-05-04166-PJH, Judge Phyllis Hamilton presiding. Judge Pamela Rymer wrote the opinion of the Court of Appeals, in which Judges Thomas Duffy (U.S.D.C., S.D. New York, sitting by designation) joined. Judge Betty Fletcher wrote a concurring opinion.

DHS's Garcia Addresses Cyber Security

10/2. Greg Garcia, Assistant Secretary for Cybersecurity and Communications at the Department of Homeland Security (DHS), gave a speech in Washington DC at an event to publicize the "Fifth National Cyber Security Awareness Month".

Greg GarciaGarcia (at right) said that "The times really have changed. We're seeing now phishing, farming, botnets, Wi Fi, war dialing and domain server spoofing. And we're seeing coordinated cyber attacks against nation states."

He said that "the sober fact is that with the right tools, the knowledge, the resources, our cyber adversaries can steal identities and intellectual property. They can prevent access to essential services and information and they can disrupt the control systems which operate so much of our nation's critical infrastructure."

He then discussed the activities of the DHS's National Cyber Security Division (NCSD), which he oversees.

He stated that "since 2004 Congress has increased NCSD's cyber security budget from 66 million to 313 million in FY '09."

He added that "we've grown our NCSD staff from just 48 in 2007 to what we expect to be well over 100 in 2009."

Book: Litigation Under the Federal Open Government Laws 2008

9/26. The Electronic Privacy Information Center (EPIC) published a book [Amazon] titled "Litigation Under the Federal Open Government Laws 2008. See, EPIC release.

The authors are Harry Hammitt, Marc Rotenberg, John Verdi, and Mark Zaid. Sen. Patrick Leahy (D-VT) wrote a forward.

This is another in the EPIC's series of annually published books that covers the Freedom of Information Act (FOIA), Privacy Act, Federal Advisory Committee Act (FACA), and Government in the Sunshine Act.

This latest edition addresses amendments to the FOIA enacted as part of S 2488 [LOC | WW], the "OPEN Government Act of 2007", which was introduced by Sen. Leahy.

S 2488 was signed into law on December 31, 2007. It is now Public Law No. 110-175. Many of its provisions take effect on December 31, 2008.

It addresses fees for "news media", time limits for responses, individualized tracking numbers, reporting requirements, and agency records maintained by private entities.

The book is 680 pages in paperback. It is on sale via Amazon for $60.

Washington Tech Calendar
New items are highlighted in red.
Monday, October 6

The House will not meet. Its next scheduled meeting is at 11:00 AM on January 3, 2009. See, HConRes 440.

The Senate will meet at 3:00 PM in pro forma session only.

10:00 AM - 4:00 PM. The U.S.-China Economic and Security Review Commission will hold a public meeting to work on its 2008 Annual Report to Congress. See, notice in the Federal Register, July 29, 2008, Vol. 73, No. 146, at Pages 43978-43979, and notice in the Federal Register, September 18, 2008, Vol. 73, No. 182, at Page 54205. Location: Conference Room 333, Hall of the States, 444 North Capitol St., NW.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its notice of proposed rulemaking regarding changes to its rules of practice to limit the types of correspondence that may be submitted to the USPTO by facsimile, and to increase the minimum font size for use on papers submitted to the USPTO for a patent application, patent or reexamination proceeding. See, notice in the Federal Register, August 6, 2008, Vol. 73, No. 152, at Pages 45662-45673.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to certain ex parte filings submitted by the Association of Public Safety Communications Officials, International (APCO), National Emergency Number Association (NENA), AT&T, Sprint Nextel, and Verizon Wireless regarding the FCC's location accuracy mandates. See, FCC Public Notice [13 pages in PDF], Public Notice [PDF], notice in the Federal Register, September 25, 2008, Vol. 73, No. 187, at Pages 55473-55495, and notice in the Federal Register, September 29, 2008, Vol. 73, No. 189, at Page 56540. These Public Notices are DA 08-2129 and DA 08-2149 in PS Docket No. 07-114.

Deadline to submit reply comments to the Federal Communications Commission's (FCC) Media Bureau in response to the PPM Coalition's (PPMC) September 2, 2008, filing titled "Emergency Petition for Section 403 Inquiry." This petition asks the FCC to open an inquiry into Arbitron's use of Portable People Meters (PPM). This item is DA 08-2048 in MB Docket No. 08-187.

Tuesday, October 7

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Core Communications v. FCC, App. Ct. No. 07-1381. See, FCC's brief [61 pages in PDF]. Judges Rogers, Tatel and Williams will preside. Location: Courtroom 22 Annex, 333 Constitution Ave., NW.

10:00 AM - 4:00 PM. The U.S.-China Economic and Security Review Commission will hold a public meeting to work on its 2008 Annual Report to Congress. See, notice in the Federal Register, July 29, 2008, Vol. 73, No. 146, at Pages 43978-43979, and notice in the Federal Register, September 18, 2008, Vol. 73, No. 182, at Page 54205. Location: Conference Room 333, Hall of the States, 444 North Capitol St., NW.

Day one of a two day conference hosted by the Information Technology Association of America (ITAA) titled "IdentEvent". See, conference web site. Location: JW Marriott Hotel, 1331 Pennsylvania Ave., NW.

Wednesday, October 8

Yom Kippur begins at sundown.

9:00 AM - 3:00 PM. The U.S.-China Economic and Security Review Commission will hold a public meeting to work on its 2008 Annual Report to Congress. See, notice in the Federal Register, July 29, 2008, Vol. 73, No. 146, at Pages 43978-43979, and notice in the Federal Register, September 18, 2008, Vol. 73, No. 182, at Page 54205. Location: Conference Room 333, Hall of the States, 444 North Capitol St., NW.

RESCHEDULED FOR NOVEMBER 6. 10:00 AM - 12:00 PM. The Department of State's (DOS) International Telecommunication Advisory Committee will meet to prepare for the International Telecommunication Union (ITU) Council Meeting to be held on November 12-21, 2008, in Geneva, Switzerland. See, notice in the Federal Register, September 22, 2008, Vol. 73, No. 184, at Page 54655. Location: 10th floor, 1120 20th St., NW. See, rescheduling notice in the Federal Register, September 26, 2008, Vol. 73, No. 188, at Pages 55891-55892.

1:00 PM. The Department of Health and Human Services' (DHHS) American Health Information Community's (AHIC) Confidentiality, Privacy, & Security Workgroup may meet. AHIC meetings are often noticed, but cancelled. Location: Switzer Building, 330 C St., SW.

Day two of a two day conference hosted by the Information Technology Association of America (ITAA) titled "IdentEvent". See, conference web site. Location: JW Marriott Hotel, 1331 Pennsylvania Ave., NW.

Deadline to submit comments to the Bureau of Industry and Security (BIS) regarding foreign policy based export controls contained in the export administration regulations (EAR) implementing the Export Administration Act of 1979, as expired. See, notice in the Federal Register, September 8, 2008, Vol. 73, No. 174, at Pages 52006-52007.

Thursday, October 9

Yom Kippur.

1:00 PM. The Department of Health and Human Services' (DHHS) American Health Information Community's (AHIC) Electronic Health Records Workgroup may meet. AHIC meetings are often noticed, but cancelled. Location: Switzer Building, 330 C St., SW.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its SP 800-107 [20 pages in PDF] titled "Recommendation for Applications Using Approved Hash Algorithms".

Friday, October 10

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in NCTA v. FCC, App. Ct. No. 07-1356. See, FCC's brief [61 pages in PDF]. Judges Ginsburg, Tatel and Brown will preside. Location: 333 Constitution Ave., NW.

12:00 NOON. The Cato Institute will host a discussion of the book [Amazon] titled "The Crime of Reason and the Closing of the Scientific Mind". This book argues that intellectual property laws and government security demands threaten the development of new knowledge. The speakers will be Robert Laughlin (author), Tom Sydnor (Progress & Freedom Foundation), and Jim Harper (Cato). See, notice and registration page. This event is free and open to the public. The Cato will web cast this event. Lunch will be served after the program. Location: Cato, 1000 Massachusetts Ave., NW.

Deadline to submit to the Federal Communications Commission (FCC) oppositions to the petitions for reconsideration (PFR) of the FCC's Report and Order (R&O) that is sometimes referred to as the "multi-tenant environment voice exclusivity order". The FCC adopted this R&O on March 19, 2008, and released the text [30 pages in PDF] on March 21, 2008. This R&O is FCC 08-87 in WT Docket No. 99-217. See, story titled "FCC Order Abrogates Property Owners' Contracts with Telcos" in TLJ Daily E-Mail Alert No. 1,734, March 20, 2008. See also, Verizon's PFR [9 pages in PDF] of June 13, 2008, and Stephen Weinstein's PFR [7 pages in PDF] of March 24, 2008. See also, notice in the Federal Register, September 25, 2008, Vol. 73, No. 187, at Page 55513.

Deadline to submit to the Federal Communications Commission (FCC) oppositions to the petition for reconsideration (PFR) [4 pages in PDF] of the FCC's Memorandum Opinion and Order and Report and Order (MO&O and R&O) approving the merger of XM and Sirius. The FCC adopted this item on July 25, 2008, and released the text [109 pages in PDF] on August 5, 2008. See, story titled "FCC Releases XM Sirius Merger Order" in TLJ Daily E-Mail Alert No. 1,807, August 6, 2008, story titled and "FCC Approves XM Sirius Merger" in TLJ Daily E-Mail Alert No. 1,800, July 25, 2008. This item is FCC 08-178 in MB Docket No. 07-57. Mt Wilson FM Broadcasters, Inc. filed this PRF on September 4, 2008. See also, notice in the Federal Register, September 25, 2008, Vol. 73, No. 187, at Page 55513.

Monday, October 13

Columbus Day. See, Office of Personnel Management's (OPM) list of 2008 federal holidays.

FCC Sets Comment Deadlines for 3rd Further NPRM Regarding D Block Auction

10/3. The Federal Communications Commission (FCC) published a notice in the Federal Register that announces, describes, and sets comment deadlines for, its Third Further Notice of Proposed Rulemaking (3rdFNPRM) regarding its failed D block auction and its efforts to facilitate a nationwide interoperable broadband wireless network for public safety entities.

The FCC adopted and released this 3rdFNPRM [237 pages in PDF] on September 25, 2008. See, story titled "FCC Adopts Further NPRM Regarding Public Safety Broadband Network" in TLJ Daily E-Mail Alert No. 1,832, September 25, 2008.

Initial comments are due by November 3, 2008. Reply comments are due by November 12, 2008.

This item is FCC 08-230 in WT Docket No. 06-150 and PS Docket No. 06-229.

See, Federal Register, October 3, 2008, Vol. 73, No. 193, at Pages 57749-57851.

NTIA and DOT Announce Proposed ENHANCE 911 Rules

10/3. The Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) and the Department of Transportation's (DOT) National Highway Traffic Safety Administration (NHTSA) published a notice in the Federal Register that announces, describes, recites, and sets the comment deadline for, their proposed rules implementing the E-911 grant program authorized under the Ensuring Needed Help Arrives Near Callers Employing 911 (ENHANCE 911) Act of 2004. See, NTIA release.

This bill was Title I of HR 5419 (108th Congress), a large bill that also addressed spectrum relocation (Commercial Spectrum Enhancement Act) and universal service (Universal Service Antideficiency Temporary Suspension Act). It was signed into law on December 23, 2004. It is now Public Law No. 108-494.

See also, story titled "House Approves Bill that Includes the Commercial Spectrum Enhancement Act" in TLJ Daily E-Mail Alert No. 1,025, November 24, 2004.

This program includes $40 Million in grants to improve 911 call centers. The deadline to submit comments on the proposed rules is December 2, 2008.

See, Federal Register, October 3, 2008, Vol. 73, No. 193, at Pages 57567-57580.

Export Regulation News

10/3. The Department of Commerce's (DOC) Bureau of Industry and Security (BIS) published a notice in the Federal Register that announces, describes, recites, and sets the effective date (October 3, 2008) for, its rule changes regarding export of encryption products. See, Federal Register, October 3, 2008, Vol. 73, No. 193, at Pages 57495-57512.

10/3. The Department of Commerce's (DOC) Bureau of Industry and Security (BIS) published a notice in the Federal Register that announces, describes, recites, and sets the comment deadline (November 17, 2008) for, its proposed rules changes regarding inter-company transfers (ICTs). See, Federal Register, October 3, 2008, Vol. 73, No. 193, at Pages 57554-57564.

10/1. The Department of Commerce's (DOC) Bureau of Industry and Security (BIS) published a notice in the Federal Register that announces, describes, recites, and sets the comment deadline for, its new rules pertaining to foreign made items that incorporate controlled U.S. origin items. These rules changes are effective October 1, 2008. Comments on these rules are due by December 1, 2008. See, Federal Register, October 1, 2008, Vol. 73, No. 191, at Pages 56964-56970.

More News

10/1. The Copyright Royalty Judges published a notice in the Federal Register that announces, describes, recites, and sets the comment deadline (December 1, 2008) for, its proposed regulations that set the rates and terms for the use of musical works in limited downloads, interactive streaming and incidental digital phonorecord deliveries. See, Federal Register, October 1, 2008, Vol. 73, No. 191, at Pages 57033-57040.

9/23. The Department of Defense (DOD) published a notice in the Federal Register that announces that "the U.S. Government has established December 31, 2020 as the date by which users of semi-codeless/codeless receiving equipment are expected to transition to using GPS civil-coded signals." See, Federal Register, September 23, 2008, Vol. 73, No. 185, at Pages 54792-54793.

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