[Federal Register Volume 82, Number 171 (Wednesday, September 6, 2017)]
[Rules and Regulations]
[Pages 42037-42040]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-18774]



[[Page 42037]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R01-OAR-2017-0138; A-1-FRL-9967-27-Region 1]


Air Plan Approval; New Hampshire; Rules for Open Burning and 
Incinerators

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving State 
Implementation Plan (SIP) revisions submitted by the State of New 
Hampshire on August 9, 2011, and July 23, 2013. These SIP revisions 
establish rules for open burning and establish emission standards and 
operating practices for incinerators and wood waste burners that are 
not regulated pursuant to federal incinerator standards. We are also 
approving revisions to the definitions of ``Incinerator'' and ``Wood 
Waste Burner,'' submitted by the State on July 23, 2013 and October 26, 
2016, respectively. This action is being taken in accordance with the 
Clean Air Act.

DATES: This direct final rule will be effective November 6, 2017, 
unless EPA receives adverse comments by October 6, 2017. 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-R01-
OAR-2017-0138 at http://www.regulations.gov, or via email to 
<a href="/cdn-cgi/l/email-protection#ebaa998584878fc5aa85858eab8e9b8ac58c849d"><span class="__cf_email__" data-cfemail="bdfccfd3d2d1d993fcd3d3d8fdd8cddc93dad2cb">[email protected]</span></a>. For comments submitted at Regulations.gov, follow 
the online instructions for submitting comments. Once submitted, 
comments cannot be edited or removed from Regulations.gov. For either 
manner of submission, the EPA may publish any comment received to its 
public docket. Do not submit electronically any information you 
consider to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. The EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e. on the web, cloud, or other file sharing 
system). For additional submission methods, please contact the person 
identified in the FOR FURTHER INFORMATION CONTACT section. For the full 
EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Alison C. Simcox, Air Quality Planning 
Unit, Air Programs Branch (Mail Code OEP05-02), U.S. Environmental 
Protection Agency, Region 1, 5 Post Office Square, Suite 100, Boston, 
Massachusetts, 02109-3912; (617) 918-1684; <a href="/cdn-cgi/l/email-protection#98ebf1f5fbf7e0b6f9f4f1ebf7f6d8fde8f9b6fff7ee"><span class="__cf_email__" data-cfemail="13607a7e707c6b3d727f7a607c7d537663723d747c65">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA.

Table of Contents

I. Background and Purpose
II. EPA's Evaluation of New Hampshire's SIP Revisions
III. Final Action
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews

I. Background and Purpose

    On January 10, 2003, New Hampshire Department of Environmental 
Services (NH DES) submitted a SIP revision for Env-A 1000 (Prevention, 
Abatement and Control of Open Source Air Pollution). On August 9, 2011, 
NH DES submitted an updated version of this regulation. Because the 
2011 submittal superseded the previous submission, the State withdrew 
the 2003 submittal on May 5, 2014. The withdrawal letter is included in 
the docket for this action.
    On July 23, 2013, NH DES submitted Env-A 1900 (Incinerators and 
Wood Waste Burners) and Env-A 101.104 (definition of ``Incinerator'') 
to EPA for approval. Env-A 1900 is not currently part of the federally-
approved New Hampshire SIP. The definition of the term ``Incinerator'' 
is currently part of the New Hampshire SIP, but is codified at Env-A 
101.59 \1\ and does not include a reference to ``wood-waste burners.'' 
The submitted definition of ``Incinerator'' adds ``wood-waste burners'' 
to the definition and is codified at Env-A 101.104. The current SIP-
approved version of the definition of ``Incinerator'' (Env-A 101.59) 
will be replaced by the new definition of that term (Env-A 101.104) as 
a result of this approval.
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    \1\ This appears to be an error because there are two different 
terms numbered 101.59 in Env-A 101, and the term Incinerator is 
listed after term numbered 48 and before term numbered 50.
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    A definition of ``Wood Waste Burner'' is currently part of the New 
Hampshire SIP, but is codified as Env-A 101.95 and explicitly excludes 
incinerators. On October 26, 2016, NH DES submitted a revision of the 
definition of ``Wood Waste Burner'' (Env-A 101.219) to EPA for 
approval. This revised definition does not exclude incinerators. The 
current SIP-approved version of the definition of ``Wood Waste Burner'' 
(Env-A 101.95) will be replaced by the new definition of that term 
(Env-A 101.219) as a result of this approval.
    The version of Env-A 1900 (Incinerators and Wood Waste Burners) 
submitted to EPA by the State included an affirmative defense provision 
for malfunction, which is defined as a sudden and unavoidable breakdown 
of process or control equipment. On April 13, 2016, NH DES sent a 
letter to EPA withdrawing the affirmative defense provision in Env-A 
1900 (i.e., 1902.02). In addition, an earlier SIP submission of Env-A 
1900 had included an exception to the 20-percent visible emissions 
limit that would have allowed these emissions to be exceeded for one 
period of 6 continuous minutes in any 60-minute period during startup, 
shutdown, or malfunction. However, NH DES removed this exception from 
the July 23, 2013 submittal.
    After reviewing New Hampshire's SIP submittals for Env-A 1000 and 
1900, as well as the submitted definitions of ``incinerator'' (Env-A 
101.104) and ``waste wood burner'' (101.219) and the letter withdrawing 
the affirmative defense provision in Env-A 1900, EPA is approving all 
of the SIP revisions with the exception of the withdrawn portion 
relating to affirmative defenses.

II. EPA's Evaluation of New Hampshire's SIP Revisions

    On August 9, 2011, NH DES submitted a revision of Env-A 1000 for 
approval into the New Hampshire SIP. This revision establishes 
requirements for open burning, fugitive dust and firefighter 
instruction and training activities. Specifically, Env-A 1000 sets 
general open-burning requirements, authorizes certain materials to be 
burned in the open, and identifies materials that are prohibited from 
being burned in the open. The version of Env-A 1000 that was originally 
approved into the SIP in 1994 (59 FR 42766) identifies the types of 
burning that are generally allowed by the State, such as outdoor 
grills, burning for agricultural or forestry improvement or firefighter 
training, as well as a list of generally prohibited burning activities, 
such as burning of rubbish, brush, demolition debris or tires, or 
burning at any solid waste disposal area. The revised SIP-submitted 
regulation includes all these

[[Page 42038]]

permissible and prohibited types of burning. In addition, the revision 
adds definitions of key terms used in the regulation, such as 
``demolition debris,'' ``salvaging operation,'' and ``untreated wood,'' 
as well as references to applicable state statutes. The revised 
regulation also adds sections on (1) precautions to prevent and control 
fugitive dust, and (2) provisions to minimize air pollution from open 
burning for firefighter instruction and training purposes.
    New Hampshire's revision to Env-A 1000 removes two references to 
``nuisance'' in the current SIP, which was approved in 1994. EPA 
believes that the State's regulation is approvable under the Clean Air 
Act (CAA) because the term ``nuisance'' in Env-A 1000 is a broad 
concept that could be applied to prohibit activities that bear no 
reasonable connection to the National Ambient Air Quality Standards 
(NAAQS) and related air-quality goals of the CAA. The fact that 
something may cause a nuisance does not necessarily equate to a 
condition that would interfere with attainment or maintenance of the 
NAAQS. The concept of a nuisance is too vague for EPA to rely on as a 
NAAQS attainment or maintenance strategy. See, for example, analogous 
instances in which EPA has removed from SIPs certain regulations that 
prohibit odors (61 FR 47058), or that contain a general prohibition 
against air pollution (63 FR 65557).
    New Hampshire's revision to Env-A 1000 removes a reference to NAAQS 
nonattainment areas for particulates (i.e., Particulate Matter or PM) 
that appears in the current SIP-approved version of Env-A 1000. 
Specifically, SIP-approved Env-A 1001.02 allowed for certain types of 
open burning if: (1) Not prohibited by local ordinance or officials 
having jurisdiction, such as state forest fire wardens, and (2) where 
the particular area has not been designated nonattainment in relation 
to the NAAQS for PM. Under Env-A 1000, such burning was allowed in 
NAAQS nonattainment areas for PM (when not prohibited by local 
ordinance or officials having jurisdiction) if written authorization 
had been obtained by the NH DES. EPA believes that the version of Env-A 
1000 we are approving today is approvable, notwithstanding the absence 
of references to nonattainment areas for NAAQS as a limiting condition 
on certain types of burning because there have not been any areas of 
New Hampshire designated as not attaining a PM NAAQS. Thus, the version 
of Env-A 1000 we are approving today is functionally equivalent to the 
existing SIP-approved version and the latter's references to PM 
nonattainment areas are unnecessary.
    The submitted Env-A 1000 retains existing provisions currently in 
the New Hampshire SIP, except for the term ``nuisance'' and references 
to PM nonattainment areas as discussed above. EPA has determined that 
the SIP revision meets the requirements of section 110(l) of the CAA in 
that it will not interfere with any applicable requirement concerning 
attainment and reasonable further progress, or with any other 
applicable requirement of the CAA. Further, the additional requirements 
in the revised regulation will benefit public health and the 
environment by controlling PM emissions from open burning and fugitive 
dust. Consequently, EPA is approving Env-A 1000 into the New Hampshire 
SIP.
    On July 23, 2013, NH DES submitted Env-A 1900 (Incinerators and 
Wood Waste Burners) and a revision of Env-A 101.104 (definition of 
``Incinerator'') for approval into the New Hampshire SIP.
    Env-A 101.104 defines ``Incinerator'' as ``a device engineered to 
burn or oxidize solid, semi-solid, liquid, or gaseous waste for the 
primary purpose of volume reduction, disposal, or chemical destruction, 
leaving little or no combustible material. Such devices include, but 
are not limited to, heat recovery systems and wood waste burners.'' 
This definition is the same as that which is currently in the New 
Hampshire SIP (approved on August 14, 1992; 57 FR 36603), except that 
the definition has been amended to include ``wood waste burners.''
    Also, on October 26, 2016, NH DES submitted Env-A 101.219, a 
revised definition of ``Wood Waste Burner'' to EPA. This revised 
definition no longer excludes incinerators.
    Thus, more sources are now included in the revised definition of 
``Incinerator'' and are subject to regulation. The definition meets the 
anti-back sliding requirements of section 110(l) of the CAA in that it 
will not interfere with any applicable requirement concerning 
attainment and reasonable further progress, or with any other 
applicable requirement of the CAA. Therefore, EPA is approving the 
revised definition into the New Hampshire SIP. We also note that the 
current SIP-approved definition of the term ``Incinerator'' is codified 
as Env-A 101.59. The new codification, Env-A 101.104, and revised 
definition we are approving in this action will replace the old 
definition and old codification at Env-A 101.59.
    Env-A 101.219 establishes the definition of ``Wood Waste Burner'' 
as ``any device such as burners used to dispose of wood waste by 
burning, and which are commonly known as teepees, wigwams, truncated 
cones or silos.'' NH DES considers the term ``wood waste'' to be 
consistent with EPA's definition of ``clean cellulosic biomass'' as 
defined at 40 CFR 241.2, and, therefore, does not consider wood waste 
to be a solid waste. As a consequence, wood waste burners are not 
specifically regulated by NH DES pursuant to federal incinerator or 
waste combustor standards in New Hampshire's Env-A 3300 and Env-A 4300. 
Thus, wood waste burners are regulated under Env-A 1900.\2\
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    \2\ EPA email from Felice Janelle (NH DES) to Alison Simcox 
(EPA, Region 1), June 23, 2016, ``RE: SIP revisions for Env-A 
101.104 and 1900.'' This correspondence is included in the docket 
for today's action.
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    Env-A 1900 establishes emission standards and operating practices 
for incinerators and wood waste burners that are not regulated pursuant 
to federal incinerator standards. Particulate emissions standards in 
Env-A 1900 for incinerators would not allow the incinerator to emit 
more than 0.675 grams per dry standard cubic meter (g/dscm), equivalent 
to 0.3 grains per dry standard cubic foot (grains/dscf), corrected to 7 
percent oxygen (O<INF>2</INF>). The standard for allowable visible 
emissions for incinerators is 20 percent opacity for any continuous 6-
minute period. In addition, Env-A 1900 includes requirements for 
posting instructions for incinerator operation and for training of 
incinerator operators. This rule will benefit public health and the 
environment by controlling PM emissions and visible emissions from 
incinerators that are not regulated under federal incinerator rules. 
Therefore, EPA is approving Env-A 1900 into the New Hampshire SIP.

III. Final Action

    EPA is approving and incorporating two regulations into the New 
Hampshire SIP. The two regulations include revised Env-A 1000 
(Prevention, Abatement and Control of Open Source Air Pollution) 
submitted by the State of New Hampshire on August 9, 2011, effective on 
May 1, 2011; and Env-A 1900 (Incinerators and Wood Waste Burners) 
submitted by the State on July 23, 2013, effective April 23, 2013, 
except for the withdrawn affirmative defense provision. The revised 
version of Env-A 1000 that we are approving into the SIP will replace 
the existing SIP-approved version of Env-A 1000.
    In addition, EPA is approving a revised definition of 
``Incinerator'' (Env-

[[Page 42039]]

A 101.104), submitted by the State on July 23, 2013, effective April 
23, 2013, which replaces the definition of ``Incinerator'' currently in 
the New Hampshire SIP (numbered Env-A 101.59). We are also approving a 
revised definition of ``Wood Waste Burner'' (Env-A 101.219), submitted 
by the State on October 26, 2016, effective January 14, 2005, which 
replaces the definition of ``Wood Waste Burner'' currently in the New 
Hampshire SIP (numbered Env-A 101.95). Thus, the SIP at Env-A 101.59 
and at Env-A 101.95 will read ``[reserved].''
    New Hampshire organizes Env-A 101 (Definitions) alphabetically, and 
also assigns a codification number, in sequential order, to each 
defined term. Because the State's SIP submissions did not include the 
entirety of Env-A 100, and the State has added other definitions to 
Env-A 100 over time (not all of which are SIP-approved), our approval 
of the two definitions in this action will result in the numbered 
codification assigned to the defined terms being out of numerical 
sequence in the SIP. However, the two defined terms will still be in 
alphabetical order. As noted earlier, the affirmative defense 
provision, which NH DES withdrew from its July 23, 2013 SIP submittal, 
is not included in this approval action and is contained in state law 
only, codified at Env-A 1902.02.
    The EPA is publishing this action without prior proposal because 
the Agency views this as a noncontroversial amendment and anticipates 
no adverse comments. However, in the proposed rules section of this 
Federal Register publication, EPA is publishing a separate document 
that will serve as the proposal to approve the SIP revision should 
relevant adverse comments be filed. This rule will be effective 
November 6, 2017 without further notice unless the Agency receives 
relevant adverse comments by October 6, 2017.
    If the EPA receives such comments, then EPA will publish an action 
withdrawing the final rule and informing the public that the rule will 
not take effect. All public comments received will then be addressed in 
a subsequent final rule based on the proposed rule. The EPA will not 
institute a second comment period on the proposed rule. All parties 
interested in commenting on the proposed rule should do so at this 
time. If no such comments are received, the public is advised that this 
rule will be effective on November 6, 2017 and no further action will 
be taken on the proposed rule. 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.

IV. Incorporation by Reference

    In this rule, the EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, the EPA is finalizing the incorporation by reference the New 
Hampshire Code of Administrative Rules stated in section III. The EPA 
has made, and will continue to make, these materials generally 
available through www.regulations.gov, and/or at the EPA Region 1 
Office (please contact the person identified in the FOR FURTHER 
INFORMATION CONTACT section of this preamble for more information).

V. 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 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:
    <bullet> Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
    <bullet> Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> 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.);
    <bullet> 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);
    <bullet> Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
    <bullet> Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
    <bullet> Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
    <bullet> 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
    <bullet> 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, the SIP is not approved to apply on any Indian reservation 
land or in any other area where EPA or an Indian tribe has demonstrated 
that a tribe has jurisdiction. In those areas of Indian country, the 
rule does not have tribal implications and will not impose substantial 
direct costs on tribal governments or preempt tribal law as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000).
    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 6, 2017. 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

[[Page 42040]]

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, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: August 9, 2017.
Deborah A. Szaro,
Acting Regional Administrator, EPA New England.

    For the reasons set forth in the preamble, 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.

Subpart EE--New Hampshire

0
2. In Sec.  52.1520(c), the table is amended by adding four entries for 
``Env-A 100'' after the entry ``Env-A 100; Organizational Rules: 
Definitions''; revising the entry for ``Env-A 1000''; and by adding an 
entry for ``Env-A 1900'' in numerical order to read as follows:


Sec.  52.1520  Identification of plan.

* * * * *
    (c) * * *

                                                         EPA-Approved New Hampshire Regulations
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                                                                   State
          State citation                 Title/subject        effective date          EPA approval date \1\                     Explanations
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Env-A 100........................  Definition of                  04/29/2003  09/06/2017..........................  Remove Part Env-A 101.59, definition
                                    ``Incinerator''.                          [Insert Federal Register citation]..   of ``Incinerator'' and replace with
                                                                                                                     ``[reserved].''
Env-A 100........................  Definition of ``Wood           04/29/2003  09/06/2017..........................  Remove Part Env-A 101.95, definition
                                    Waste Burner''.                           [Insert Federal Register citation]..   of ``Wood Waste Burner'' and
                                                                                                                     replace with ``[reserved].''
Env-A 100........................  Definition of                  04/23/2013  09/06/2017..........................  Approve Part Env-A 101.104,
                                    ``Incinerator''.                          [Insert Federal Register citation]..   definition of ``Incinerator.''
Env-A 100........................  Definition of ``Wood           01/14/2005  [Insert Federal Register date of      Approve Part Env-A 101.219,
                                    Waste Burner''.                            publication].                         definition of ``Wood Waste
                                                                              [Insert Federal Register citation]..   Burner.''
 
                                                                      * * * * * * *
Env-A 1000.......................  Control of Open Burning..      05/01/2011  09/06/2017..........................  Approve Part Env-A 1000
                                                                              [Insert Federal Register citation]..   ``Prevention, Abatement and Control
                                                                                                                     of Open Source Air Pollution.''
 
                                                                      * * * * * * *
Env-A 1900.......................  Emission Standards and         04/23/2013  09/06/2017..........................  Approve Part Env-A 1900
                                    Operating.                                [Insert Federal Register citation]..   ``Incinerators and Wood Waste
                                   Practices for                                                                     Burners.''
                                    Incinerators.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ In order to determine the EPA effective date for a specific provision listed in this table, consult the Federal Register notice cited in this column
  for the particular provision.

* * * * *
[FR Doc. 2017-18774 Filed 9-5-17; 8:45 am]
 BILLING CODE 6560-50-P


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