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[Federal Register Volume 79, Number 180 (Wednesday, September 17, 2014)]
[Rules and Regulations]
[Pages 55641-55645]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-22049]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2011-0968; FRL-9916-47-Region 5]

Approval and Promulgation of Air Quality Implementation Plans; 
Indiana; Open Burning Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a 
November 14, 2011, request by Indiana to revise the state 
implementation plan (SIP) to incorporate the open burning provisions in 
Title 326 of the Indiana Administrative Code (IAC), Article 4, Rule 1 
(326 IAC 4-1), Open Burning Rule. EPA is approving this rule for 
attainment counties and is taking no action on the rule for Clark, 
Floyd, Lake and Porter counties which are nonattainment or maintenance 
areas for ozone (O3) or particulate matter (PM).

DATES: This direct final rule will be effective November 17, 2014, 
unless EPA receives adverse comments by October 17, 2014. If adverse 
comments are received, EPA will publish a timely withdrawal of the 
direct final rule in the Federal Register informing the public that the 
rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2011-0968, by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: blakley.pamela@epa.gov.
    3. Fax: (312) 692-2450.
    4. Mail: Pamela Blakley, Chief, Control Strategies Section, Air 
Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West 
Jackson Boulevard, Chicago, Illinois 60604.
    5. Hand Delivery: Pamela Blakley, Chief, Control Strategies 
Section, Air Programs Branch (AR-18J), U.S. Environmental Protection 
Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. Such 
deliveries are only accepted during the Regional Office normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information. The Regional Office official hours of business are 
Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal 
holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-
2011-0968. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or email. The 
www.regulations.gov Web site is an ``anonymous access'' system, which 
means EPA will not know your

[[Page 55642]]

identity or contact information unless you provide it in the body of 
your comment. If you send an email comment directly to EPA without 
going through www.regulations.gov your email address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the Environmental Protection 
Agency, Region 5, Air and Radiation Division, 77 West Jackson 
Boulevard, Chicago, Illinois 60604. This Facility is open from 8:30 
a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays. 
We recommend that you telephone Charles Hatten, Environmental Engineer, 
(312) 886-6031 before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Charles Hatten, Environmental 
Engineer, Control Strategies Section, Air Programs Branch (AR-18J), 
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, 
Chicago, Illinois 60604, (312) 886-6031, hatten.charles@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. This supplementary information 
section is arranged as follows:

I. What is the background for this action?
II. Discussion of State Submittal
III. What action is EPA taking today?
IV. Statutory and Executive Order Reviews

I. What is the background for this action?

    Open burning is generally prohibited in the state of Indiana. 
Indiana state law exempts certain open burning activities under 
conditions that minimize the impact on the air quality and public 
health. Open burning activities allowed include: maintenance burning, 
recreational or ceremonial fires, farm burning, waste oil burning, 
prescribed used to facilitate the growth of desired vegetation, and 
residential burning.
    Indiana's open burning rule at 326 IAC 4-1 [formerly Air Pollution 
Code-2, (APC-2)] applies state-wide and was first approved on June 22, 
1978 (43 FR 26722), and re-codified on July 16, 1982 (47 FR 30972). On 
February 1, 1996 (61 FR 3581), EPA approved a ban on residential open 
burning for Clark, Floyd, Lake and Porter counties to reduce VOC 
emissions as part of Indiana's fifteen (15) percent rate of progress 
plan for the 1-hour O3 standard. This ban on residential 
open burning remains a permanent and enforceable control measure in the 
state's O3 SIP.
    On November 14, 2011, the Indiana Department of Environmental 
Management (IDEM) submitted a request to EPA to revise 326 IAC 4-1. 
IDEM published several newspaper notices (March 31, 2011, June 25, 
2011) informing the public of the revisions to 326 IAC 4-1-3 and 326 
IAC 4-1-4. IDEM held a public hearing on these revisions on August 3, 
2011. There were no comments received. IDEM's November 14, 2011, 
submittal also included certification that adoption of the revisions at 
326 IAC 4-1-0.5, 326 IAC 4-1-1, 326 IAC 4-1-2, 326 IAC 4-1-3, 326 IAC 
4-1-4, 326 IAC 4-1-4.1, 326 IAC 4-1-4.2, and 326 IAC 4-1-4.3, had been 
preceded by adequate notice and public hearing.

II. Discussion of State Submittal

    Below is a discussion of Indiana's rule, including an 
identification of any significant changes from the previously approved 
SIP.

 4-1-0.5 Definitions

    This section defines several terms, including a revised definition 
of ``open burn.'' IDEM consolidated the definition of the terms from 
326 IAC 4-1, ``open burning'' and ``open'' into one definition at 326 
IAC 4-1-0.5(6), ``open burn.'' The term ``open burn'' means, the 
burning of any materials wherein air contaminants resulting from 
combustion are emitted directly into the air, without passing through a 
stack or chimney from an enclosed chamber. This revision provides 
clarity to the definition of ``open burn'' and is approvable into the 
Indiana SIP.

 4-1-1 Scope

    This section describes the rule's applicability. The applicability 
remains consistent with the existing SIP and continues to apply to all 
open burning state-wide.
    Because the revisions to this section are administrative and non-
substantive, EPA finds 326 IAC 4-1-1 remains consistent with the 
approved SIP, and therefore, are approvable into Indiana's SIP.

 4-1-2 Prohibition Against Open Burning

    This section prohibits open burning of any material not exempt, or 
authorized, unless approval has been granted by the Commissioner or the 
Commissioner's designated agent. There were no substantive changes to 
this section of the rule. The revision reflects a wording change. The 
language in the SIP reads, ``No person shall open burn any material 
except as provided in section 3 or 4.'' Indiana's revised the language 
now reads, ``Open burning is prohibited except as allowed in this 
rule.''
    The revision to this section requires a person or entity subject 
this rule to comply with the entire rule and not just certain sections. 
Thus, EPA finds the revision to the rule to be consistent with the 
approved SIP and is approvable into Indiana's SIP.

 4-1-3 Exemptions

    In the approved SIP, section 3 of 326 IAC 4-1 identifies those 
exemptions for certain open burning activities under conditions that 
minimize the impact on air quality and public health.
    In section (3)(a)(1) Indiana identifies exemptions in the rule for 
open burning for maintenance purposes. This exemption allows open 
burning of the following: (1) Vegetation from farms, cemeteries, 
drainage ditches and agricultural land, if the burn occurs in an 
unincorporated area; (2) wood products from pruning or clearing a 
roadside by a county highway department and the initial clearing of a 
public utility right-of-way if in an unincorporated area; (3) 
undesirable wood structures or remnants; and (4) clean petroleum 
products for maintaining or for repairing railroad tracks, but not 
including railroad ties. Section (3)(a)(2) applies certain restrictions 
to open burning, for maintenance purposes, that is allowed by this 
rule. These include: Extinguishing the fire if it creates a nuisance or 
a fire hazard; all fires must be attended at all times during burning 
until completely extinguished; no burning during unfavorable 
meteorological conditions; removal of all asbestos-containing material 
before burning of a structure. The language in

[[Page 55643]]

this section (3)(a) remains consistent with the existing SIP.
    Section (3)(b) specifies certain conditions that apply to any fires 
allowed by this rule in section (3)(c). The language in this section 
(3)(b) remains consistent with the existing SIP.
    Section (3)(c) allows the following types of fires: Recreational 
and ceremonial fires; private residential burning; and waste oil 
burning. IDEM added criteria that would allow the burning of two single 
family, non-demolished dwellings per calendar year by municipal fire 
departments for the purposes of live fire training subject to certain 
conditions, including written notification to IDEM and the removal of 
material that would otherwise result in toxic air emissions; and the 
ceremonial burning of United States flags. These additional exemptions 
are subject to both the conditions in section (3)(b) and more specific 
conditions associated with each exemption to limit open burning 
emissions.
    The revisions to section 3 of 326 IAC are not anticipated to 
increase the amount or frequency of open burning occurring in Indiana, 
and therefore, are approvable into the Indiana SIP.

 4-1-4 Emergency Burning

    IDEM revised section 4 renaming it ``Emergency burning''. The SIP 
approved language in section 4 of 326 IAC 4-1 identified certain types 
of open burning not exempt by the rule that would require a person(s) 
to obtain prior approval before open burning by the Air Pollution 
Control Board (APCB) or its designated agent. Among the list of open 
burnings that IDEM would consider granting approval included emergency 
burnings. The revisions address the administrative function associated 
with open burning approvals in the event of an emergency. IDEM revised 
the rule for emergency burning to require written approval by the 
Commissioner. Emergency burnings may be authorized for spilled 
petroleum products and clean wood waste, vegetation or deceased animals 
under certain conditions.
    This revision serves to help clarify language in the rule regarding 
the approval process for emergency burning. Thus, EPA finds the 
revision to the rule to be consistent with the approved SIP when open 
burning for emergency purposes, and is approvable into the Indiana SIP.

 4-1-4.1 to 4-1-4.3 Open Burning Approval Process

    The open burning ``approval process'' is contained in sections 4-1-
4.1 thru 4-1-4.3. The approval process is designed to simplify the 
relevant steps for a person(s) or an entity to submit a request to open 
burn or obtain a variance from the Commissioner or the Commissioner's 
designated agent, similar to requests for approvals for emergency 
burning, as noted above in section 4.
    Below is a discussion of the various parts of Indiana's open 
burning approval process.

4-1-4.1 Open Burning Approval; Criteria and Conditions

    Section 4.1(a)--Burning not exempted by Section 3 or 4 of this rule 
may be authorized by the issuance of an approval by the Commissioner or 
the Commissioner's designated agent, after consideration of an approval 
application, for fire training, burning of natural growth derived from 
a clearing operation and burning of highly explosive or dangerous 
materials for which no alternative disposal method exists, burning of 
clean wood products and natural growth.
    Section 4.1(b) specifies the criteria that may be considered for 
approval for open burning, including: A demonstration that alternative 
methods of disposal are impractical; there are not more than five 
residences within 500 feet of the proposed burning site; there have 
been no open burning violations at the site of the proposed burning or 
the applicant; the burning site is located in a county not designated 
as a nonattainment area for PM10 (particles that are 10 
micrometers in diameter or smaller) or O3 and is not located 
in Clark or Floyd County.
    Section 4.1(c) prohibits approval of residential burning in Clark, 
Floyd, Lake or Porter County.
    Section 4.1(d) provides the conditions that any approval for open 
burning may be subject to, including: Only clean wood products shall be 
burned; no asbestos-containing material shall be burned; no burning 
shall be conducted during unfavorable meteorological conditions; and 
burning shall be conducted during daylight hours only.
    Section 4.1(e) specifies that an approval letter for open burning 
shall be valid for no longer than one year from the date of issuance. 
However, an approval letter for open burning may be valid for as long 
as five years, if the approval application is accompanied by an open 
burning plan which must contain a description of the open burning 
proposed.
    Section 4.1(f) states that the Commissioner may add conditions to 
an approval letter, as necessary, to prevent a public nuisance or to 
protect public health. Such conditions may be based on local air 
quality conditions, including whether the area is a nonattainment 
county as defined in 326 IAC 1-4-1 or has been redesignated from 
nonattainment to attainment status.

4-1-4.2 Open Burning; Approval Revocation

    As a part of the approval process, this section allows the 
Commissioner to revoke an approval letter for open burning if the 
applicant violates any requirement of Section 4.1(d) or 4.1(f) or 
falsifies any information on an application for an approval.

4-1-4.3 Open Burning Approval; Delegation of Authority

    This section of the rule states that the Commissioner may delegate 
the authority to issue approval letters for open burning to another 
agency that has the necessary legal authority to implement an approval 
program.
    EPA finds the ``approval process'' outlined in 326 IAC 4-1-4.1 to 
326 IAC 4-1-4.3 to be consistent with the approved SIP. The revisions 
to the rule does not relax IDEM's review process, provides clarity, as 
well as simplifies the administrative procedures necessary to obtain 
approval or a variance to open burn.
    EPA finds Indiana's open burning rule provides a state-wide 
prohibition of open burning with reasonable exceptions. Open burning 
not specifically exempt may be authorized by the Commissioner for 
specific purposes, e.g., fire training or burning of highly explosive 
materials, and based upon specified criteria, e.g. alternative methods 
of disposal are not feasible and there are not more than five 
residences within 500 feet of the proposed burning site. EPA will 
recognize approvals for burning not specifically exempted by these 
regulations authorized by the Commissioner or the Commissioner's 
designated agent provided that a copy of the approval letter and 
application be kept on file and made available to EPA upon request.
    The revisions to 326 IAC 4-1 range from wording changes and 
additions, improve and expand the applicability of the rule and its 
impact on air quality statewide. EPA is approving this rule for 
attainment counties and is taking no action on the rule for Clark, 
Floyd, Lake and Porter counties which are nonattainment or maintenance 
areas for O3 or PM. On balance, EPA finds that the rule 
strengthens the existing SIP in Indiana and as such, deems the 
submittal approvable.

[[Page 55644]]

III. What action is EPA taking today?

    EPA is approving a November 14, 2011, request by Indiana to revise 
the SIP to update 326 IAC 4-1, Open Burning Rule, because reducing open 
burning will reduce PM, volatile organic compounds, and other 
pollutants. EPA is approving this rule for attainment counties and is 
taking no action on the rule for Clark, Floyd, Lake and Porter counties 
which are nonattainment or maintenance areas for O3 or PM. 
We are publishing this action without prior proposal because we view 
this as a noncontroversial amendment and anticipate no adverse 
comments. However, in the proposed rules section of this Federal 
Register publication, we are publishing a separate document that will 
serve as the proposal to approve the state plan if relevant adverse 
written comments are filed. This rule will be effective November 17, 
2014 without further notice unless we receive relevant adverse written 
comments by October 17, 2014. If we receive such comments, we will 
withdraw this action before the effective date by publishing a 
subsequent document that will withdraw the final action. All public 
comments received will then be addressed in a subsequent final rule 
based on the proposed action. The EPA will not institute a second 
comment period. Any parties interested in commenting on this action 
should do so at this time. Please note that if EPA receives adverse 
comment on an amendment, paragraph, or section of this rule and if that 
provision may be severed from the remainder of the rule, EPA may adopt 
as final those provisions of the rule that are not the subject of an 
adverse comment. If we do not receive any comments, this action will be 
effective November 17, 2014.

IV. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Clean Air Act 
and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the 
SIP is not approved to apply in Indian country located in the state, 
and EPA notes that it will not impose substantial direct costs on 
tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by November 17, 2014. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. Parties with objections to this direct final 
rule are encouraged to file a comment in response to the parallel 
notice of proposed rulemaking for this action published in the proposed 
rules section of this Federal Register, rather than file an immediate 
petition for judicial review of this direct final rule, so that EPA can 
withdraw this direct final rule and address the comment in the proposed 
rulemaking. This action may not be challenged later in proceedings to 
enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Emissions 
Reporting, Incorporation by reference, Ozone, Volatile organic 
compounds.

    Dated: September 2, 2014.
Susan Hedman,
Regional Administrator, Region 5.
    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

    Authority:  42 U.S.C. 7401 et seq.

0
2. In Sec.  52.770, the table in paragraph (c) is amended by revising 
the entries under the subheading entitled ``Article 4. Burning 
Regulations'' and by adding footnote 1 to the end of the table to read 
as follows:

Sec.  52.770  Identification of plan.

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    (c) * * *

[[Page 55645]]

                                     EPA[hyphen]Approved Indiana Regulations
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                                                            Indiana
         Indiana citation                 Subject          effective     EPA approval date          Notes
                                                             date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                         Article 4. Burning Regulations
----------------------------------------------------------------------------------------------------------------
                                            Rule 1. Open Burning \1\
----------------------------------------------------------------------------------------------------------------
4-1-0.5..........................  Definitions.........    02/10/2001  09/17/2014, [insert   ...................
                                                                        Federal Register
                                                                        citation].
4-1-1............................  Scope...............    02/10/2001  09/17/2014, [insert   ...................
                                                                        Federal Register
                                                                        citation].
4-1-2............................  Prohibition against     02/10/2001  09/17/2014, [insert   ...................
                                    open burning.                       Federal Register
                                                                        citation].
4-1-3............................  Exemptions..........    10/28/2011  09/17/2014, [insert   ...................
                                                                        Federal Register
                                                                        citation].
4-1-4............................  Emergency burning...    10/28/2011  09/17/2014, [insert   ...................
                                                                        Federal Register
                                                                        citation].
4-1-4.1..........................  Open burning            12/15/2002  09/17/2014, [insert   ...................
                                    approval; criteria                  Federal Register
                                    and conditions.                     citation].
4-1-4.2..........................  Open burning;           02/10/2001  09/17/2014, [insert   ...................
                                    approval revocation.                Federal Register
                                                                        citation].
4-1-4.3..........................  Open burning            02/10/2001  09/17/2014, [insert   ...................
                                    approval;                           Federal Register
                                    delegation of                       citation].
                                    authority.
----------------------------------------------------------------------------------------------------------------
                                              Rule 2. Incinerators
----------------------------------------------------------------------------------------------------------------
4-2-1............................  Applicability.......    12/15/2002  11/30/2004, 69 FR     ...................
                                                                        69531.
4-2-2............................  Incinerators........    12/15/2002  11/30/2004, 69 FR     ...................
                                                                        69531.
4-2-3............................  Portable                12/15/2002  11/30/2004, 69 FR     ...................
                                    incinerators                        69531.
                                    (Repealed).
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ EPA is approving Rule 1 for the counties of Adams, Allen, Bartholomew, Benton, Blackford, Boone, Brown,
  Carroll, Cass, Clay, Clinton, Crawford, Daviess Dearborn, Decatur, De Kalb, Delaware, Dubois, Elkhart,
  Fayette, Fountain, Franklin, Fulton, Gibson, Grant, Greene, Hamilton, Hancock, Harrison, Hendricks, Henry,
  Howard, Huntington, Jackson, Jasper, Jay, Jefferson, Jennings, Johnson, Knox, Kosciusko, La Porte, Lagrange,
  Lawrence, Madison, Marion, Marshall, Martin, Miami, Monroe, Montgomery, Morgan, Newton, Noble, Ohio, Orange,
  Owen, Parke, Perry, Pike, Posey, Pulaski, Putnam, Randolph, Ripley, Rush, St. Joseph, Scott, Shelby, Spencer,
  Starke, Steuben, Sullivan, Switzerland, Tippecanoe, Tipton, Union, Vanderburgh, Vermillion, Vigo, Wabash,
  Warren, Warrick, Washington, Wayne, Wells, White, and Whitley.

* * * * *
[FR Doc. 2014-22049 Filed 9-16-14; 8:45 am]
BILLING CODE 6560-50-P
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