[Federal Register Volume 67, Number 66 (Friday, April 5, 2002)]
[Rules and Regulations]
[Pages 16317-16322]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-5862]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[FRL-7155-9]


National Emission Standards for Hazardous Air Pollutants: Solvent 
Extraction for Vegetable Oil Production

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule; amendments.

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[[Page 16318]]

SUMMARY: We are taking direct final action to amend the national 
emission standards for hazardous air pollutants (NESHAP) for solvent 
extraction for vegetable oil production plants which were promulgated 
on April 12, 2001 under authority of section 112 of the Clean Air Act 
(CAA). The amendments will clarify the startup, shutdown, and 
malfunction requirements for owners or operators subject to the 
Vegetable Oil NESHAP. The amendments will also clarify the 
applicability of the NESHAP General Provisions.

DATES: This direct final action rule will be effective on June 4, 2002 
without further notice, unless significant adverse comments are 
received by May 6, 2002.
    If significant adverse comments are received we will publish a 
timely withdrawal in the Federal Register informing the public that 
this direct final rule will not take effect.

ADDRESSES: Comments. By U.S. Postal Service, submit written comments 
(in duplicate, if possible) to: Air and Radiation Docket and 
Information Center (6102), Attention Docket Number A-97-59, U.S. EPA, 
1200 Pennsylvania Ave., NW., Washington, DC 20460. In person or by 
courier, submit comments (in duplicate, if possible) to: Air and 
Radiation Docket and Information Center (6102), Attention Docket Number 
A-97-59, Room M-1500, U.S. EPA, 401 M Street, SW., Washington DC 20460. 
We request that a separate copy of each public comment also be sent to 
the contact person listed below (see FOR FURTHER INFORMATION CONTACT).

FOR FURTHER INFORMATION CONTACT: Mr. Rick Colyer, Minerals and 
Inorganic Chemicals Group (C504-05), Emission Standards Division, U.S. 
EPA, Research Triangle Park, NC 27711, telephone number (919) 541-5262, 
electronic mail (e-mail): [email protected].

SUPPLEMENTARY INFORMATION: Comments. We are publishing this direct 
final rule without proposal because we view the amendments as 
noncontroversial and do not anticipate adverse comments. However, in 
the Proposed Rules section of this Federal Register, we are publishing 
a separate document that will serve as the proposal in the event that 
adverse comments are filed.
    If we receive any significant adverse comments, we will publish a 
timely withdrawal in the Federal Register informing the public that 
this direct final rule will not take effect. We will address all public 
comments in a subsequent final rule based on the proposed rule. We will 
not institute a second comment period on this direct final rule. Any 
parties interested in commenting must do so at this time.

Docket

    The docket is an organized and complete file of the administrative 
record compiled developing this rulemaking. The docket is a dynamic 
file because material is added throughout the rulemaking process. The 
docketing system is intended to help you to readily identify and locate 
documents so that you can effectively participate in the rulemaking 
process. Along with the proposed and promulgated rules and their 
preambles, the contents of the docket will serve as the record in the 
case of judicial review. (See section 307(d)(7)(A)) of the CAA.) You 
may obtain the regulatory text and other materials related to this 
rulemaking are available for review in the docket or copies may be 
mailed on request from the Air Docket by calling (202) 260-7548. We may 
charge a reasonable fee for copying docket materials. You may also 
obtain docket indexes by facsimile, as described on the Office of Air 
and Radiation, Docket and Information Center Website at http://www.epa.gov/airprogm/oar/docket/faxlist.html.

Worldwide Web

    In addition to being available in the docket, an electronic copy of 
this direct final rule will also be available through the Worldwide Web 
(WWW). Following signature, a copy of the direct final rule will be 
posted on the EPA's Technology Transfer Network (TTN) policy and 
guidance page for newly proposed or promulgated rules at http://www.epa.gov/ttn/oarpg. The TTN at EPA's web site provides information 
and technology exchange in various areas of air pollution control. If 
more information regarding the TTN is needed, call the TTN HELP line at 
(919) 541-5384.

Regulated Entities

    If your facility produces vegetable oil from corn germ, cottonseed, 
flax, peanuts, rapeseed (for example, canola), safflower, soybeans, or 
sunflower, it may be a ``regulated entity.'' Categories and entities 
potentially regulated by this action include:

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                    Category                         NAICS               Examples of regulated entities
----------------------------------------------------------------------------------------------------------------
Industry........................................       311223  Cottonseed oil mills.
                                                       311222  Soybean oil mills.
                                                       311223  Other vegetable oil mills, excluding soybeans and
                                                                cottonseed mills.
                                                       311223  Other vegetable oil mills, excluding soybeans and
                                                                cottonseed mills.
                                                       311119  Prepared feeds and feed ingredients for animals
                                                                and fowls, excluding dogs and cats.
                                                       311211  Flour and other grain mill product mills.
                                                       311221  Wet corn milling.
Federal government..............................  ...........  Not affected.
State/local/tribal government...................  ...........  Not affected.
----------------------------------------------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. To determine whether your facility is regulated by this action, 
you should examine the applicability criteria in Sec. 63.2832 of the 
rule. If you have any questions regarding the applicability of these 
amendments to a particular entity, consult the appropriate EPA Regional 
Office representative.

Judicial Review

    Under section 307(b)(1) of the CAA, judicial review of this direct 
final rule is available after the effective date by filing a petition 
for review in the U.S. Court of Appeals for the District of Columbia 
Circuit no later than June 4, 2002. Under section 307(d)(7)(B) of the 
CAA, only an objection to a rule or procedure raised with reasonable 
specificity during the period for public comment can be raised during 
judicial review. Moreover, under section 307(b)(2) of the CAA, the 
requirements established by this direct final rule may not be 
challenged later in civil or criminal proceedings brought by the EPA to 
enforce these requirements.

[[Page 16319]]

I. Why Are We Publishing These Amendments as a Direct Final Rule?

    On May 26, 2000, we proposed National Emission Standards for 
Hazardous Air Pollutants: Solvent Extraction for Vegetable Oil 
Production (65 FR 34252). The proposed rule included requirements for 
limiting emissions during vegetable oil production, including 
requirements during startup, shutdown, and malfunction (SSM) of 
vegetable oil production processes. As with all NESHAP, the regulatory 
development process included an examination of which specific 
provisions in the General Provisions at 40 CFR part 63, subpart A, 
should be applicable to sources subject to subpart GGGG. Based on a 
review of the General Provisions promulgated on March 16, 1994 (59 FR 
12408), we determined that 40 CFR 63.6(e), which contains various 
procedures related to operation and maintenance and SSM, would apply to 
sources subject to subpart GGGG.
    Based on public comments, we made one major change to the proposed 
regulation, which was to allow the use of an accounting month rather 
than a calendar month to determine solvent losses and quantities of 
oilseed processed by an affected source. There were no substantive 
public comments on the proposed SSM provisions and they were not 
changed in the final rule. On April 12, 2001, we promulgated National 
Emission Standards for Hazardous Air Pollutants: Solvent Extraction for 
Vegetable Oil Production (66 FR 19006).
    On March 23, 2001 (66 FR 16318), we proposed amendments to the 
General Provisions to part 63. The proposed amendments included several 
changes to the SSM requirements. Among others, these changes included 
proposed 40 CFR 63.6(e)(3)(iii) requiring records related to 
malfunctions; proposed 40 CFR 63.6(e)(3)(iv) which requires reporting 
of actions inconsistent with the startup, shutdown, and malfunction 
plan (SSMP); and proposed 40 CFR 63.6(e)(3)(viii) which requires 
reporting modifications to the SSM plan in the semiannual report. In 
addition, the proposed changes to the General Provisions SSMP clarify 
that the title V permit must require that an SSMP be prepared and 
followed but the SSMP is not itself part of the title V permit.
    In the preamble to the proposed General Provisions amendments, we 
specifically requested comment on ``any conflicts * * * that result 
solely from applying these proposed amendments to the General 
Provisions to promulgated part 63 subparts.'' One commenter identified 
such a conflict between SSM provisions of the Vegetable Oil Production 
NESHAP and those provisions in the General Provisions. Specifically, 
the commenter noted that proposed 40 CFR 63.6(e)(3)(iii), which 
requires records related to malfunctions under 40 CFR 63.10(b), should 
not apply to subpart GGGG, as subpart GGGG states that 40 CFR 
63.10(b)(2)(ii) through (iii) relating to malfunction records do not 
apply. Also, proposed 40 CFR 63.6(e)(3)(iv), which requires reporting 
of actions inconsistent with the SSMP if the emissions exceed the 
relevant standard, does not comport with subpart GGGG. The Vegetable 
Oil Production NESHAP require reporting of such actions regardless of 
whether the standard was exceeded. The commenter also specifically 
noted that proposed 40 CFR 63.6(e)(3)(viii), the requirement to report 
modifications to the SSM plan in the semiannual report, should not 
apply to sources subject to subpart GGGG, as subpart GGGG does not 
require a semiannual report.
    We agree with the commenter that these proposed provisions conflict 
with those in the promulgated Vegetable Oil Production NESHAP. As we 
proposed to codify in 40 CFR 63.1(a)(4)(i), each relevant part 63 
standard should identify explicitly whether each provision in subpart A 
is or is not included in each standard. This regulatory language is 
based on our conviction that each NESHAP must determine which of the 
General Provisions do or do not make sense for a particular source 
category. It was not our intent to alter the SSMP requirements of the 
Vegetable Oil Production NESHAP.
    We have discussed the implications of the General Provisions 
amendments with the commenter and as a result are editing subpart GGGG 
to correct the inconsistencies. These changes will ensure the 
minimization of emissions at all times, clarify the SSM requirements, 
and specify the relationship of the General Provisions to Vegetable Oil 
Production NESHAP affected sources.

II. What Are the Amendments to the Final Rule?

    With this direct final action, we are amending several provisions 
related to SSM requirements. Specifically, we are amending the 
explanation column of Table 1 of 40 CFR 63.2870 as it applies to 40 CFR 
63.6(e) to state, ``implement your plan as specified in Sec. 63.2852.'' 
Table 1 also now indicates that 40 CFR 63.6(e)(3)(iii), (iv) and (viii) 
do not apply to Vegetable Oil Production NESHAP affected sources.
    We are also amending the first sentence of 40 CFR 63.2861(d) to 
clarify that owner/operators must submit an immediate SSM report if an 
SSM is handled differently from the procedures in the SSM plan and the 
emission standards are exceeded.
    We are also amending the third sentence of 40 CFR 63.2852 to 
clarify that the SSMP does not have to be incorporated into the title V 
permit.
    These changes will ensure the minimization of emissions at all 
times, clarify the SSM requirements, and specify the relationship of 
the General Provisions to Vegetable Oil Production NESHAP affected 
sources.
    Please note that these changes are contained within the Vegetable 
Oil Production NESHAP and that they are being made for consistency with 
the General Provisions amendments, where appropriate. The Vegetable Oil 
Production NESHAP, however, also contains specifically tailored SSMP 
provisions for this industry and one should look expressly to that rule 
for the applicable SSMP provisions.

III. What Are the Administrative Requirements?

A. Executive Order 12866, Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993) the EPA 
must determine whether the regulatory action is ``significant'' and 
therefore subject to Office of Management and Budget (OMB) review and 
the requirements of the Executive Order. The Executive Order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may:
    (1) Have an annual effect on the economy of $100 million or more, 
or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Pursuant to the terms of Executive Order 12866, we have determined 
that these amendments do not constitute a ``significant regulatory 
action'' because they do not meet any of the above criteria. 
Consequently, this action was

[[Page 16320]]

not submitted to OMB for review under Executive Order 12866.

B. Executive Order 13132, Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires the EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This direct final rule does not have federalism implications. It 
will not have substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government, as specified in Executive Order 13132. Thus, the 
requirements of section 6 of Executive Order 13132 do not apply to this 
direct final rule.

C. Executive Order 13175, Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.''
    These rule amendments do not have tribal implications, as specified 
in Executive Order 13175. No tribal governments are known to own or 
operate solvent extraction for vegetable oil production facilities. 
Thus, Executive Order 13175 does not apply to these rule amendments.

D. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    Executive Order 13045, entitled ``Protection of Children from 
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 
1997), applies to any rule that: (1) Is determined to be ``economically 
significant'' as defined under Executive Order 12866, and (2) concerns 
an environmental health or safety risk that the EPA has reason to 
believe may have a disproportionate effect on children. If the 
regulatory action meets both criteria, the Agency must evaluate the 
environmental health or safety effects of the planned rule on children, 
and explain why the planned regulation is preferable to other 
potentially effective and reasonably feasible alternatives considered 
by the Agency.
    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that are based on health or safety risks, such that 
the analysis required under section 5-501 of the Order has the 
potential to influence the regulation. This direct final rule is not 
subject to the Executive Order because it is based on technology 
performance and not on health or safety risks.

E. Executive Order 13211, Actions Concerning Regulations That 
Significantly Affect Energy, Supply, Distribution, or Use

    The direct final rule amendments are not subject to Executive Order 
13211, ``Actions Concerning Regulations That Significantly Affect 
Energy, Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001), 
because they are not significant regulatory actions under Executive 
Order 12866.

F. Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, the 
EPA generally must prepare a written statement, including a cost-
benefit analysis, for proposed and final rules with ``Federal 
mandates'' that may result in expenditures to State, local, and tribal 
governments, in the aggregate, or to the private sector, of $100 
million or more in any 1 year. Before promulgating an EPA rule for 
which a written statement is needed, section 205 of the UMRA generally 
requires the EPA to identify and consider a reasonable number of 
regulatory alternatives and adopt the least costly, most cost-
effective, or least-burdensome alternative that achieves the objectives 
of the rule. The provisions of section 205 do not apply when they are 
inconsistent with applicable law. Moreover, section 205 allows the EPA 
to adopt an alternative other than the least-costly, most cost-
effective, or least-burdensome alternative if the Administrator 
publishes with the final rule an explanation why that alternative was 
not adopted. Before the EPA establishes any regulatory requirements 
that may significantly or uniquely affect small governments, including 
tribal governments, it must have developed under section 203 of the 
UMRA a small government agency plan. The plan must provide for 
notifying potentially affected small governments, enabling officials of 
affected small governments to have meaningful and timely input in the 
development of EPA regulatory proposals with significant Federal 
intergovernmental mandates, and informing, educating, and advising 
small governments on compliance with the regulatory requirements.
    The EPA has determined that these amendments do not contain a 
Federal mandate that may result in expenditures of $100 million or more 
for State, local, and tribal governments, in the aggregate, or in the 
private sector in any 1 year. Thus, the amendments are not subject to 
the requirements of sections 202 and 205 of the UMRA. In addition, the 
EPA has determined that these amendments contain no regulatory 
requirements that might significantly or uniquely affect small 
governments, because they contain no requirements that apply to such 
governments or impose obligations on them. Therefore, today's 
amendments are not subject to the requirements of section 203 of the 
UMRA.

G. Regulatory Flexibility Act, As Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et 
seq.

    The EPA has determined that it is not necessary to prepare a 
regulatory flexibility analysis in connection with this final rule. The 
EPA has also determined that this rule will not have a significant 
economic impact on a substantial number of small entities. For purposes 
of assessing the impact of today's rule on small entities, small 
entities are defined as: (1) A small business that has less than 750 
employees and is unaffiliated with a larger domestic entity; (2) a 
small governmental jurisdiction that is a government of a city, county, 
town, school district or special district with a population of less 
than 50,000; and (3) a small organization that is any not-for-profit 
enterprise that is independently owned and operated and is not dominant 
in its field.
    After considering the economic impacts of today's final amendments 
on small entities, EPA has concluded that this action will not have a 
significant economic impact on a substantial number of small entities. 
In determining whether a rule has a significant economic impact on a 
substantial number of small entities, the impact of concern is any 
significant adverse

[[Page 16321]]

economic impact on small entities, since the primary purpose of the 
regulatory flexibility analyses is to identify and address regulatory 
alternatives ``which minimize any significant economic impact of the 
proposed rule on small entities.'' 5 U.S.C. sections 603 and 604. Thus, 
an agency may conclude that a rule will not have a significant economic 
impact on a substantial number of small entities if the rule relieves 
regulatory burden, or otherwise has a positive economic effect on all 
of the small entities subject to the rule. The amendments better 
clarify and make the startup, shutdown, and malfunction plan consistent 
with the amended part 63 subpart A; the effect is to clarify that 
sources do not have to modify their title V permit each time the SSMP 
is changed. We have therefore concluded that today's direct final rule 
will relieve regulatory burden for all small entities.

H. Paperwork Reduction Act

    Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., the EPA 
must consider the paperwork burden imposed by any information 
collection request in a proposed or final rule. The OMB has previously 
approved the information collection requirements for the subject 
facilities under the Paperwork Reduction Act (OMB Control No. 2060-
0471). The amendments contained in this direct final rule will have no 
net impact on the information collection burden estimates made 
previously. Consequently, the ICR has not been revised.

I. National Technology Transfer and Advancement Act of 1995

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law 104-113 (March 7, 1996) (15 U.S.C. 272 
note), directs all Federal agencies to use voluntary consensus 
standards instead of government-unique standards in their regulatory 
activities unless to do so would be inconsistent with applicable law or 
would be otherwise impractical. Voluntary consensus standards are 
technical standards (for example, material specifications, test 
methods, sampling and analytical procedures, business practices, etc.) 
that are developed or adopted by one or more voluntary consensus 
standards bodies. The NTTAA directs EPA to provide Congress, through 
annual reports to OMB, with explanations when EPA does not use 
available and applicable voluntary consensus standards.
    This action does not involve the use of any new technical 
standards. Accordingly, the NTTAA requirement to use applicable 
voluntary consensus standards does not apply to this direct final rule.

J. The Congressional Review Act

    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. The EPA will submit a report containing this rule 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).

List of Subjects in 40 CFR Part 63

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Hazardous substances, Intergovernmental 
relations, Reporting and recordkeeping requirements.

    Dated: March 5, 2002.
Christine Todd Whitman,
Administrator.

    For the reasons cited in the preamble, part 63, title 40, chapter I 
of the Code of Federal Regulations is amended as follows:

PART 63--[AMENDED]

    1. The authority citation for part 63 continues to read as follows:

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

Subpart GGGG--[AMENDED]

    2. Section 63.2852 is amended by revising the first three sentences 
to read as follows:


Sec. 63.2852  What is a startup, shutdown, and malfunction plan?

    You must develop a written SSM plan in accordance with 
Sec. 63.6(e)(3) and implement the plan, when applicable. You must 
complete the SSM plan before the compliance date for your source. You 
must also keep the SSM plan on-site and readily available as long as 
the source is operational.* * *
    3. Section 63.2861 is amended by revising the first sentence of 
paragraph (d) introductory text to read as follows:


Sec. 63.2861  What reports must I submit and when?

* * * * *
    (d) Immediate SSM reports. If you handle a SSM during an initial 
startup period subject to Sec. 63.2850(c)(2) or (d)(2) or a malfunction 
period subject to Sec. 63.2850(e)(2) differently from procedures in the 
SSM plan and the relevant emission requirements in Sec. 63.2840 are 
exceeded, then you must submit an immediate SSM report. * * *
* * * * *

    4. Table 1 of Sec. 63.2870 is amended by revising the entry to 
Sec. 63.6(e) to read as follows:


Sec. 63.2870  What parts of the General Provisions apply to me?

* * * * *

     Table 1 of Sec.  63.2870.--Applicability of 40 CFR Part 63, Subpart A, to 40 CFR Part 63, Subpart GGGG
----------------------------------------------------------------------------------------------------------------
                                                           Brief
                                                        description     Applies to
   General provisions citation    Subject of citation       of            subpart             Explanation
                                                        requirement
----------------------------------------------------------------------------------------------------------------
 
*                  *                  *                  *                  *                  *
                                                        *
Sec.  63.6(e)(1) through          Operation and        ............  Yes.............  Implement your SSM plan,
 (e)(3)(ii) and Sec.               maintanance                                          as specified in Sec.
 63.6(e)(3)(v) through (vii).      requirements.                                        63.2852.
Sec.  63.6(e)(3)(v)(iii)........  Operation and        ............  No..............  Implement your plan, as
                                   maintenance                                          specified in Sec.
                                   requirements.                                        63.2852.
Sec.  63.6(e)(3)(iv)............  Operation and        ............  No..............  Report SSM and in
                                   maintenance                                          accordance with Sec.
                                   requirements.                                        63.2861(c) and (d).

[[Page 16322]]

 
Sec.  63.6(e)(3)(viii)..........  Operation and        ............  Yes.............  Except, report each
                                   maintenance                                          revision to your SSM
                                   requirements.                                        plan in accordance with
                                                                                        Sec.  63.2861(c) rather
                                                                                        than Sec.  63.10(d)(5)
                                                                                        as required under Sec.
                                                                                        63.6(e)(3) (viii).
 
*                  *                  *                  *                  *                  *
                                                        *
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[FR Doc. 02-5862 Filed 4-4-02; 8:45 am]
BILLING CODE 6560-50-P