[Federal Register Volume 79, Number 245 (Monday, December 22, 2014)]
[Notices]
[Pages 76387-76391]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-29826]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

[Docket Nos. OSHA-2014-0020, 0017, 0010, 0008, 0006, 0003, 0002, OSHA-
2013-0014, 0001, OSHA-2012-0056, 0053, 0052, 0051, 0050, 0049, 0048, 
0047, 0046, 0045, 0044, 0043, 0042, 0041, OSHA-2011-0093]


Authorization To Open Dockets of Denied Variance Applications for 
Public Access

AGENCY: Occupational Safety and Health Administration (OSHA), Labor.

ACTION: Notice.

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SUMMARY: In this notice, OSHA announces its intent to update the 
publication of the dockets of variance applications that it denied in 
the past. Because OSHA denied these applications, it did not publish 
them in the Federal Register for public review. OSHA is making this 
information available to the public to enhance

[[Page 76388]]

transparency concerning the variance process, to assist the public in 
understanding the variance process, and to reduce errors in applying 
for future variances.

FOR FURTHER INFORMATION CONTACT: Information regarding this notice is 
available from the following sources:
    Press inquiries: Contact Mr. Frank Meilinger, Director, OSHA Office 
of Communications, U.S. Department of Labor, 200 Constitution Avenue 
NW., Room N-3647, Washington, DC 20210; telephone: (202) 693-1999; 
email: [email protected].
    General and technical information: Contact Mr. Stefan Weisz, Office 
of Technical Programs and Coordination Activities, Directorate of 
Technical Support and Emergency Management, Occupational Safety and 
Health Administration, U.S. Department of Labor, 200 Constitution 
Avenue NW., Room N-3655, Washington, DC 20210; phone: (202) 693-2110 or 
email: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    The principal objective of the Occupational Safety and Health Act 
of 1970 (``the OSH Act'') is ``to assure so far as possible every 
working man and woman in the Nation safe and healthful working 
conditions and to preserve our human resources'' (29 U.S.C. 651 et 
seq.). In fulfilling this objective, the OSH Act authorizes the 
implementation of ``such rules and regulations as [the Assistant 
Secretary of Labor for Occupational Safety and Health] may deem 
necessary to carry out [his/her] responsibilities under this Act'' (29 
U.S.C. 657(g)(2)).
    Under several provisions of the OSH Act, employers may apply for 
four different types of variances from the requirements of OSHA 
standards. Employers submit variance applications voluntarily to OSHA, 
and the applications specify alternative means of complying with the 
requirements of OSHA standards. The four types of variances are 
temporary, experimental, permanent, and national-defense variances. 
OSHA promulgated rules implementing these statutory provisions in 29 
CFR part 1905 (``Rules of Practice for Variances, Limitations, 
Variations, Tolerances, and Exemptions under the William-Steiger 
Occuptional Safety and Health Act of 1970''). The following paragraphs 
further describe each of these four types of variances.
    Temporary variance.\1\ This variance delays the date on which an 
employer must comply with requirements of a newly issued OSHA standard. 
The employer must submit the variance application to OSHA after OSHA 
issues the standard, but prior to the effective date of the standard. 
In the variance application, the employer must demonstrate an inability 
to comply with the standard by its effective date ``because of 
unavailability of professional or technical personnel or of materials 
and equipment needed to come into compliance with the standard or 
because necessary construction or alteration of facilities cannot be 
completed by the effective date.'' Employers also must establish that 
they are ``taking all available steps to safeguard [their] employees 
against the hazards covered by the standard,'' and that they have ``an 
effective program for coming into compliance with the standard as 
quickly as practicable.'' (29 U.S.C. 655(b)(6)(A)).
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    \1\ See Section 6(b)(6)(A) of the OSH Act (29 U.S.C. 655) and 29 
CFR 1905.10.
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    Experimental variance.\2\ OSHA may grant this variance as an 
alternative to complying with the requirements of a standard whenever 
it determines that the variance ``is necessary to permit an employer to 
participate in an experiment . . . designed to demonstrate or validate 
new and improved techniques to protect the health or safety of 
employees.'' (29 U.S.C. 655(b)(6)(C)).
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    \2\ See Section 6(b)(6)(C) of the OSH Act (29 U.S.C. 655).
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    Permanent variance.\3\ This variance authorizes employers (or 
groups of employers) to use alternative means of complying with the 
requirements of OSHA standards when the employers demonstrate, with a 
preponderance of evidence, that the proposed alternative protects 
employees at least as effectively as the requirements of the standards.
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    \3\ See Section 6(d) of the OSH Act (29 U.S.C. 655) and 29 CFR 
1905.11.
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    National defense variance.\4\ Under this variance, OSHA, ``may 
provide such reasonable limitations and may make such rules and 
regulations allowing reasonable variations, tolerances, or exceptions 
to and from'' the requirements of its standards that it ``find[s] are 
necessary and proper to avoid serious impairment of the national 
defense'' (29 U.S.C. 665). Such variances can be in effect no longer 
than six months without notifying the affected employees and affording 
them an opportunity for a hearing.
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    \4\ See Section 16 of the OSH Act (29 U.S.C. 665) and 29 CFR 
1905.12.
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    Additionally, OSHA developed optional stardardized variance 
application forms, and obtained the requried Office of Management and 
Budget (OMB) approval for the information collection requirement 
(control no. 1218-0265), in order to assist employers in meeting the 
paperwork requirements contained in these regulations. Further, in 
order to facilitate and simplify the completion of the complex variance 
applications and reduce the information collection burden on 
applicants, OSHA made the variance application forms and accompanying 
completion instructions, as well as variance application checklists, 
accessible from its ``How to Apply for a Variance'' Web page (http://www.osha.gov/dts/otpca/variances/index.html).

II. Denied Variance Applications

    Generally, when receiving a variance application, OSHA conducts an 
administrative and technical review, which includes verifying an 
applicant completed the application fully and included required 
information and evaluating the effectiveness of the alternate safety 
measures proposed by the applicant. Part of OSHA's administrative 
variance application evaluation is to establish a docket for each case. 
OSHA then places the variance application and other related materials 
submitted by the applicant in the docket without revision. Initially, 
these materials are not made public.
    Upon completion of the technical review, if OSHA determines to move 
forward with the grant of a variance, it develops and publishes a 
preliminary Federal Register notice (FRN) announcing the variance 
application, grant of an interim order (when such was requested by the 
applicant), and request for public comment. When the preliminary FRN is 
published, OSHA makes the case docket public and available online at 
the Federal eRulemaking Portal (http://www.regulations.gov).
    Following publication of the preliminary FRN, interested parties 
may submit their comments and attachments electronically to the Federal 
eRulemaking Portal. OSHA monitors public comments received (if any), 
and at the expiration of the comment period reviews and analyzes them. 
Based on the review results, OSHA develops and publishes the final FRN 
granting or denying the variance.
    If OSHA determines to not move forward with the grant of a 
variance, it does not publish the variance docket. A variance 
application may be denied for a variety of reasons upon completion of 
the technical review. Often these reasons stem from errors employers 
commit in completing their applications. Reviewing the variance 
application forms' completion

[[Page 76389]]

instructions, the application checklists, and previously denied 
variance applications prior to completing a variance application will 
assist applicants in determining whether their applications are 
complete and appropriate, as well as to avoid common errors. The 
following are examples of common errors that lead to the denial of 
applications:
    Denied--unresolved citation. An employer cannot use a variance 
application to avoid or resolve an existing citation while contesting 
the citation. If OSHA has issued a citation on the standard (or 
provision of the standard) for which an employer is seeking a variance, 
OSHA may deny the application or place it on hold until the parties 
resolve the citation (29 CFR 1905.5). Therefore, in order to avoid this 
type of error, a variance application should not contain a request for 
resolving a contested citation.
    Denied--exemption requested. An application for a variance is a 
request for regulatory action proposing use of alternate means for 
protecting workers at least as effectively as the standards from which 
the applicant is seeking the variance. Therefore, in order to avoid 
this type of error, a variance application should not contain a request 
for an outright exemption or waiver that permits the applicant to avoid 
complying with the requirements of an applicable standard. Only 
national-defense variances may provide outright exemptions from OSHA 
standards (29 CFR 1905.12).
    Denied--not as protective as standard. The technical review of the 
variance application found that it failed to demonstrate by a 
preponderance of evidence that the proposed alternate means of 
compliance protects workers at least as effectively as the protection 
afforded by the standard from which the applicant is seeking the 
variance (29 CFR 1905.11). Therefore, in order to avoid this type of 
error, a variance application should contain proposed alternate safety 
measures that are at least as effective as the protection afforded by 
the applicable standard.
    Denied--standard or interpretation already exists. The applicant 
proposes use of alternate means that OSHA previously determined 
acceptable for use by issuing a letter of interpretation (LOI). Since 
use of the proposed alternate was allowed prior to the filing of the 
variance application, the application is unnecessary. The applicant may 
use the means of compliance in the manner determined acceptable and 
described by the LOI.
    Denied--site located solely in State-Plan state.\5\ When obtaining 
a variance for establishment(s) located solely in states that operate 
their own OSHA-approved occupational safety and health plans, 
employer(s) must follow the variance-application procedures specified 
by the State Plan(s) covering states in which they have 
establishment(s) named in the variance application(s) (29 CFR 1952). 
Therefore, in order to avoid this type of error, a variance application 
for establishment(s) located solely in State Plan states should be 
filed in the state(s) where the establishments are located.
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    \5\ Section 18 of the OSH Act of 1970 encourages States to 
develop and operate their own job safety and health programs.
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    Denied--application inappropriately requests product or product 
design approval. The variable working conditions at jobsites and the 
possible alteration or misapplication of an otherwise safe piece of 
equipment could easily create hazardous conditions beyond the control 
of the equipment manufacturer. Therefore, it is OSHA's policy not to 
approve or endorse products or product designs.\6\ In order to avoid 
this type of error, a variance application should not contain a request 
for product or product design approval.
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    \6\ See LOI dated December 30, 1983 @ http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=19170.
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    Denied--application inappropriately addresses proposed standard. 
The applicant is seeking a variance from a proposed standard that has 
not been published as a final rule and is subject to possible 
alteration and revision. A variance is an alternate means of compliance 
that is different from the means of compliance required by a specific 
(in effect) OSHA standard (29 CFR 1905.11). Therefore, in order to 
avoid this type of error, a variance application should not contain a 
request for a variance from a proposed standard that has not been 
published as a final rule.
    Denied--application inappropriately addresses a ``performance'' 
standard or ``definition'' in a standard. The variance application did 
not propose use of alternate means of compliance from a standard that 
describes a specific method for meeting its safety requirements. 
Instead, the applicant is requesting a variance from a ``performance 
standard'' or ``definition'' that leaves ``open ended'' or 
``unspecified'' the means and methods for meeting its safety 
requirements (29 CFR 1905.11). Therefore, in order to avoid this type 
of error, a variance application should not contain a request for a 
variance from a performance standard or definition in a standard.
    Withdrawn--During the administrative and technical evaluations, 
OSHA will evaluate a variance application for appropriateness, 
completeness, and effectiveness. When an application fails to pass the 
administrative review, OSHA will inform the applicant regarding the 
application's defect(s). At that point, an applicant may choose to 
amend its application to fix its defect(s) or withdraw its application 
without prejudice. For example, an applicant may withdraw its 
application when it determines that: A variance is no longer necessary; 
its application is incomplete and the applicant chooses to stop 
pursuing the matter; or the applicant's work place is located solely in 
a state operating an OSHA-approved State Plan so that the application 
should have been submitted to the State Plan.

II. Denial of Multi-State Variance Applications

    Under the provisions of Section 18 of the OSH Act of 1970 and 29 
CFR 1952, states can develop and operate their own job safety and 
health programs. OSHA approves and monitors State Plans and provides up 
to 50 percent of an approved plans' operating costs. Currently, there 
are 22 states and territories operating complete State Plans (covering 
both the private sector and State and local government employees) and 
five states covering state and local government employees only. States 
with OSHA-approved State Plans may have additional requirements for 
variances. For more information on these requirements, as well as State 
Plan addresses, visit OSHA's State Plans Web page: (http://www.osha.gov/dcsp/osp/index.html).
    Employers filing a variance application for multiple workplaces 
located in one or more states under Federal OSHA authority may submit 
their applications to Federal OSHA by meeting the requirements set 
forth in the OSH Act and the implementing regulations (29 CFR 1905). 
Employers filing a variance application for multiple workplaces located 
in one or more states exclusively under State Plan authority must 
submit their applications in that particular state or states. Note that 
State Plans vary in their applicability to public sector and private 
sector places of employment. For example, Virginia's plan does not 
cover private-sector maritime employers, while California's plan covers 
most private-sector maritime employer activities, except as specified 
by 29 CFR 1952.172. Employers should follow the variance-

[[Page 76390]]

application procedures specified by the State Plan(s) for states in 
which they have an establishment named in the variance application.
    Applicants with workplaces in one or more states under State Plan 
authority and at least one state under Federal OSHA authority may apply 
to Federal OSHA for a variance by meeting the requirements set forth in 
the OSH Act and the implementing regulations (29 CFR 1905 and 1952). 
When applicants perform work in a number of states that operate OSHA-
approved safety and health programs, such states (and territories) have 
primary enforcement responsibility over the work performed within their 
borders. Under the provisions of 29 CFR 1952.9 (``Variance affecting 
multi-state employers'') and 29 CFR 1905.14(b)(3) (``Actions on 
applications''), a permanent variance or interim order granted, denied, 
modified, or revoked by the Agency becomes effective in State Plans as 
an authoritative interpretation of the applicants' compliance 
obligation when: (1) The variance request involves the same material 
facts for the places of employment; (2) the relevant state standards 
are the same as the Federal OSHA standards from which the applicants 
are seeking the variance; and (3) the State Plan does not object to the 
terms of the variance application.

III. Granting Public Access to Dockets of Denied Variance Applications

    OSHA has denied a large number of variance applications since its 
inception in the early 1970s. As previously indicated in this notice, 
because OSHA denied these applications, initially they were not 
published in the Federal Register for public review.\7\ However, in 
2010, OSHA made public a sizable number of illustrative variance 
applications (approximately 200) that it denied during the period from 
1995 through 2010. The dockets for these denied or withdrawn variance 
applications are accessible online at the Federal eRulemaking Portal 
(http://www.regulations.gov), as well as on OSHA's ``Denied and 
Withdrawn Variance Applications for 1995-2010'' Web page: (http://www.osha.gov/dts/otpca/variances/denied_withdrawn95-10.html).
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    \7\ Sections 6(b), 6(d), and 16 of the OSH Act and 29 CFR 1905 
set out the laws and regulations applicable to Variances. Whereas, 
these provisions require OSHA to announce variance applications and 
grants by publication in the Federal Register, no such provisions 
are in place for denied variance applications.
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    OSHA made this information available to the public to enhance 
transparency concerning the variance process, to assist the public in 
understanding the variance process, and to reduce errors in applying 
for future variances. This action was consistent with the policy 
established by the Open Government Directive, M-10-06, issued by the 
Office of Management and Budget on December 8, 2009 (http://www.whitehouse.gov/sites/default/files/omb/assets/memoranda_2010/m10-06.pdf).
    OSHA decided to publish the dockets of the variance applications 
that the Agency denied during FY 2010-2014 \8\ on the Federal 
eRulemaking Portal and OSHA's ``Denied and Withdrawn Variance 
Applications for 1995-2014 Web page. These denied variance application 
dockets are presented in the table below:
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    \8\ Completed between the governmental fiscal years of October 
1, 2010 and September 30, 2014.

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                                                 Standard from     Date of
         Docket ID             Company name     which variance    denial or       State(s)      Reason denied or
                                                   requested      withdrawal                        withdrawn
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OSHA-2014-0020.............  Upland            1910.215(a)(2)       9/8/2014  MO..............  Denied_unresolve
                              Industries,       and                                              d citation.
                              Inc., dba         1910.215(a)(4).
                              Elegius Bronze.
OSHA-2014-0017.............  Bennett           1926.1419(a)(2).    8/19/2014  OK..............  Denied_not as
                              Construction,                                                      protective as
                              Inc.                                                               standard and
                                                                                                 exemption
                                                                                                 requested.
OSHA-2012-0049.............  Green Barn Farms  1910.142(a)(2)..      7/24/14  WI..............  Withdrawn_varian
                                                                                                 ce not
                                                                                                 necessary.
OSHA-2014-0008.............  ITW Food          1910.23(c)(1)       6/11/2014  AK, AZ, CA, CT,   Denied_not as
                              Equipment Group   and                            HI, IA, IL, IN,   protective as
                              LLC; dba Hobart   1926.501(b)(1).                KY, MD, MI, MN,   standard and
                              Service.                                         NC, NJ, NM, NV,   exemption
                                                                               NY, OR, PR, SC,   requested.
                                                                               TN, UT, VA, VI,
                                                                               VT, WA, WY.
OSHA-2014-0006.............  Ned Stevens.....  1910.23(c)(1)...     5/6/2014  CT, IL, MA, MD,   Denied_unresolve
                                                                               NC, NJ, NY, PA,   d citation.
                                                                               SC, TX, VA.
OSHA-2014-0010.............  Southland         1926.602(a)(9)(i    4/16/2014  HI..............  Withdrawn_site
                              Contracting.      i).                                              located solely
                                                                                                 in State Plan
                                                                                                 state.
OSHA-2014-0003.............  Johnstown Wire    1910.1025(d)(6)(    3/26/2014  NY..............  Denied_exemption
                              Technologies.     iii).                                            requested.
OSHA-2014-0002.............  Puerto Rico       1919.410(c),        3/27/2014  PR..............  Denied_exemption
                              Harbor Diving     1910.424(c)(1),                                  requested.
                              Services.         &
                                                1910.424(c)(2).
OSHA-2013-0001.............  Tonawanda Coke    1910.1029(f)(3)(    8/22/2013  NY..............  Denied_not as
                              Corporation.      iii)(a).                                         protective as
                                                                                                 standard.
OSHA-2013-0014.............  McLean            1926.1041(e)(10)     6/4/2013  DC, DE, MD, NC,   Denied_not as
                              Contracting Co.                                  SC, VA.           protective as
                                                                                                 standard.
OSHA-2012-0056.............  Sunrise Senior    1910.151(c).....    4/10/2013  CO, CT, DC, DE,   Denied_standard
                              Living, Inc.                                     FL, GA, IL, KS,   or
                                                                               LA, MA, ME, MO,   interpretation
                                                                               NE, NJ, NY, OH,   already exists.
                                                                               PA, TX.
OSHA-2012-0053.............  Key Energy        1910.23(c)(1)...     1/4/2013  AK, AZ, CA, KY,   Denied_not as
                              Services.                                        MD, MI, NM, NC,   protective as
                                                                               TN, UT, VA, WY.   standard.

[[Page 76391]]

 
OSHA-2012-0052.............  U.S. Postal       1910.333(a)(1) &   12/19/2012  All Fed OSHA &    Denied_not as
                              Service.          1910.333(a)(2).                State Plan        protective as
                                                                               states.           standard.
OSHA-2012-0041.............  The Scotts        1910.178(n)(4)..    9/12/2012  AL, AZ, CA, CO,   Denied_standard
                              Company, LLC.                                    CN, FL, GA, IA,   or
                                                                               IL, IN, KY, LA,   interpretation
                                                                               MI, MS, MO, OH,   already exists.
                                                                               PA, SC, SD, TX,
                                                                               VA, WI.
OSHA-2012-0042.............  T & T Fertilizer  1910.27(d)(2)...    7/13/2012  IN..............  Denied_site
                                                                                                 located solely
                                                                                                 in State Plan
                                                                                                 state.
OSHA-2012-0043.............  U.S. Pipe and     1910.23(c)(1) &     2/16/2012  AL..............  Denied_standard
                              Foundry Company.  1920.23(e)(1).                                   or
                                                                                                 interpretation
                                                                                                 already exists.
OSHA-2012-0044.............  GTECH Corp......  1926.501(b)(1)..     1/3/2012  AZ, CA, FL, GA,   Denied_not as
                                                                               KS, KY, MI, MN,   protective as
                                                                               MO, NE, NJ, NY,   standard.
                                                                               NC, OR, RI, SD,
                                                                               TX, VA, WA, WV,
                                                                               WI.
OSHA-2012-0045.............  Timothy Raymond.  1026.1400(a) &       1/3/2012  All Fed OSHA &    Denied_applicati
                                                (b);                           State Plan        on
                                                1926.1431(a) &                 states.           inappropriately
                                                (b);                                             addresses
                                                1926.1431(h)(1)                                  request for
                                                & (h)(2).                                        product design
                                                                                                 approval.
OSHA-2012-0046.............  Cedar Fair, LP..  1910.28,            12/2/2011  CA, MI, MN, MO,   Denied_applicati
                                                1910.29, &                     NC, OH, PA, VA.   on
                                                1910.32.                                         inappropriately
                                                                                                 addresses
                                                                                                 proposed
                                                                                                 standard.
OSHA-2012-0047.............  NSS               1926.602........   10/27/2011  MI..............  Denied_site
                              Construction,                                                      located solely
                              Inc.                                                               in State Plan
                                                                                                 state.
OSHA-2012-0048.............  National Chimney  1926.452(o) &       9/29/2011  All Fed OSHA &    Denied_standard
                              and Stack, Inc.   1926.552(c).                   State Plan        or
                                                                               states.           interpretation
                                                                                                 already exists.
OSHA-2012-0050.............  Industrial        1926.452(o) &        8/4/2011  All Fed OSHA &    Denied_standard
                              Access, Inc.      1926.552(c).                   State Plan        or
                                                                               states.           interpretation
                                                                                                 already exists.
OSHA-2011-0093.............  Eagle Worker's    1904.3..........    4/28/2011  PA..............  Denied_not as
                              Compensation                                                       protective as
                              Trust.                                                             standard.
OSHA-2012-0051.............  SL Chase Welding  1926.300(a).....    12/8/2010  MA, NH, VT......  Denied_not as
                              and                                                                protective as
                              Fabricating,                                                       standard.
                              Inc.
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IV. Authority and Signature

    David Michaels, Ph.D., MPH, Assistant Secretary of Labor for 
Occupational Safety and Health, 200 Constitution Avenue NW., 
Washington, DC 20210, authorized the preparation of this notice. 
Accordingly, the Agency is issuing this notice pursuant to 29 U.S.C. 
655, Secretary of Labor's Order No. 1-2012 (77 FR 3912, Jan. 25, 2012), 
and 29 CFR part 1905.

    Signed at Washington, DC, on December 15, 2014.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. 2014-29826 Filed 12-19-14; 8:45 am]
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