[Federal Register Volume 68, Number 233 (Thursday, December 4, 2003)]
[Rules and Regulations]
[Pages 67932-67936]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-30163]



[[Page 67931]]

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Part V





Environmental Protection Agency





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40 CFR Part 61



National Emission Standard for Benzene Waste Operations; Final Rule

  Federal Register / Vol. 68 , No. 233 / Thursday, December 4, 2003 / 
Rules and Regulations  

[[Page 67932]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 61

[OAR-2003-0147; FRL-7594-3]
RIN 2060-AJ87


National Emission Standard for Benzene Waste Operations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; amendments.

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SUMMARY: On November 12, 2002, the EPA issued amendments to the 
national emission standard for benzene waste operations as a direct 
final rule, along with a parallel proposal to be used as a basis for 
final action in the event we received any adverse comments. Because an 
adverse comment was received on provisions related to control devices, 
we withdrew the corresponding parts of the direct final rule on 
February 6, 2003. This action promulgates the provisions that were 
withdrawn based on the proposed rule published on November 12, 2002. 
This action also amends the rule to correct a cross-reference citation.

EFFECTIVE DATE: December 4, 2003.

ADDRESSES: The official public docket is available for public viewing 
at the EPA Docket Center, EPA West, Room B-102, 1301 Constitution Ave., 
NW., Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT: Mr. Robert B. Lucas, Waste and 
Chemical Process Group (C504-05), Emission Standards Division, Office 
of Air Quality Planning and Standards, U.S. EPA, Research Triangle 
Park, NC 27711, telephone number (919) 541-0884, facsimile number (919) 
541-5600, electronic mail (e-mail) address, [email protected].

SUPPLEMENTARY INFORMATION
    Regulated Entities. Categories and entities potentially regulated 
by this action include:

------------------------------------------------------------------------
                                                         Examples of
             Category                  NAIC\1\       regulated entities
------------------------------------------------------------------------
Industry.........................     32512-325182  Chemical
                                             32411   manufacturing
                                            331111   plants, petroleum
                                             22121   refineries, coke by-
                                            562211   product recovery
                                            324110   plants, and
                                                     commercial
                                                     hazardous waste
                                                     treatment, storage,
                                                     and disposal
                                                     facilities that
                                                     manage waste
                                                     generated by these
                                                     industries.
Federal government...............  ...............  Not affected.
State/local/tribal government....  ...............  Not affected.
------------------------------------------------------------------------
\1\ North American Industry Classification System

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by the 
final rule amendments. To determine whether your facility is regulated 
by the final rule amendments, you should examine the applicability 
criteria in 40 CFR 61.340 of the national emission standard for benzene 
waste operations. If you have any questions concerning applicability 
and rule determinations, contact the technical contact person in the 
preceding FOR FURTHER INFORMATION CONTACT section.
    Docket. The EPA has established an official public docket for this 
action including both Docket ID No. OAR-2003-0147 and Docket ID No. A-
2001-23. The official public docket consists of the documents 
specifically referenced in this action, any public comments received, 
and other information related to this action. All items may not be 
listed under both docket numbers, so interested parties should inspect 
both docket numbers to ensure that they have received all materials 
relevant to the final rule amendments. Although a part of the official 
docket, the public docket does not include Confidential Business 
Information or other information whose disclosure is restricted by 
statute. The official public docket is available for public viewing at 
the EPA Docket Center (Air Docket), EPA West, Room B-102, 1301 
Constitution Ave., NW., Washington DC. The EPA Docket Center Public 
Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Reading 
Room is (202) 566-1744, and the telephone number for the Air Docket is 
(202) 566-1742.
    Electronic Docket Access. You may access the final rule amendments 
electronically through the EPA Internet under the Federal Register 
listings at http://www.epa.gov/fedrgstr/.
    An electronic version of the public docket is available through 
EPA's electronic public docket and comment system, EPA Dockets. You may 
use EPA Dockets at http://www.epa.gov/edocket to view public comments, 
access the index listing the contents of the official public docket, 
and to access those documents in the public docket that are available 
electronically. Once in the system, select ``search,'' then key in the 
appropriate docket identification number. Although not all docket 
materials may be available electronically, you may still access any of 
the publicly available docket materials through the EPA Docket Center.
    Worldwide Web (WWW). In addition to being available in the docket, 
an electronic copy of today's final rule amendments will also be 
available on the WWW through the Technology Transfer Network (TTN). 
Following the Administrator's signature, a copy of the final rule 
amendments will be posted on the TTN's policy and guidance page for 
newly proposed or promulgated rules at http://www.epa.gov/ttn/oarpg. 
The TTN 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.
    Judicial Review. Under section 307(b)(1) of the Clean Air Act 
(CAA), judicial review of the final rule amendments is available only 
by filing a petition for review in the U.S. Court of Appeals for the 
District of Columbia Circuit by February 2, 2004. Under section 
307(d)(7)(B) of the CAA, only an objection to the final rule amendments 
that was 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 the final 
rule amendments may not be challenged separately in any civil or 
criminal proceedings brought by the EPA to enforce these requirements.
    Outline. The information in this preamble is organized as follows:

I. Background
II. Response to Comment on Amendments to the National Emission 
Standard for Benzene Waste Operations
III. Editorial Correction to the Amendments
IV. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act

[[Page 67933]]

    C. Regulatory Flexibility Analysis
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children from 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions that Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer Advancement Act
    J. Congressional Review Act

I. Background

    On March 7, 1990, we issued the national emission standard for 
benzene waste operations (40 CFR part 61, subpart FF). Subpart FF 
applies to equipment and processes at certain chemical manufacturing 
plants, coke by-product recovery plants, petroleum refineries, and 
facilities that treat, store, or dispose of waste generated by those 
facilities.
    On November 12, 2002, we issued a direct final rule (67 FR 68528) 
and a parallel proposed rule (67 FR 68546) to amend the national 
emission standard for benzene waste operations. We stated in the 
preamble to the direct final rule and parallel proposal that if we 
received adverse comments by December 12, 2002 (or February 18, 2003, 
if a public hearing was requested), on one or more distinct provisions 
of the direct final rule, we would publish a timely notice in the 
Federal Register specifying which provisions will become effective and 
which provisions will be withdrawn due to adverse comment.
    We subsequently received an adverse comment from one commenter on 
the provisions related to control devices in a new compliance option 
for tanks equipped with an enclosure.
    Accordingly, we withdrew 40 CFR 61.343(e) introductory text and 
withdrew and reserved paragraph (e)(2) in Sec.  61.343 (68 FR 6082, 
February 6, 2003). The remaining provisions, for which we did not 
receive any adverse comments, became effective on February 10, 2002. 
After full and careful consideration of the comment, we are 
promulgating the amendments previously withdrawn based on the parallel 
proposal published on November 12, 2002.

II. Response to Comment on Amendments to the National Emission Standard 
for Benzene Waste Operations

    The direct final rule published on November 12, 2002, included 
amendments to 40 CFR 61.343 of the benzene waste final rule that add a 
new compliance option for tanks located inside a permanent total 
enclosure. The new compliance option was adopted from similar standards 
established under the Resource Conservation and Recovery Act (RCRA) for 
hazardous waste treatment, storage, and disposal facilities (40 CFR 
parts 264 and 265, subparts CC). This change was first requested as an 
alternative emission limitation by a company subject to both the 
benzene waste final rule and the RCRA subparts CC rules. Under 40 CFR 
264.1082(c)(5) and 265.1083(c)(5) of the RCRA rules, tanks are 
specifically exempted from the standards provided that, among other 
conditions, the tank is located inside an enclosure, and the enclosure 
is vented to a control device designed and operated in accordance with 
the requirements in the benzene waste national emission standard.
    Prior to development of the direct final rule amendments and 
parallel proposal, we reviewed the information submitted by the company 
and determined that their control system (a tank located inside a 
permanent total enclosure with emissions vented through a closed vent 
system to an enclosed combustion device) provided a level of control of 
benzene equivalent to that required by the national emission standard 
for benzene waste operations. Based on this equivalency determination, 
we issued direct final rule amendments to the national emission 
standard by adding a new compliance option that allowed tanks to be 
located inside a permanent total enclosure that routes organic vapors 
to an ``enclosed combustion control device.'' This is the most common 
type of control device used for tanks located inside a total enclosure.
    The commenter objected to provisions that restricted applicable 
emission controls for the compliance option (i.e. the controls on the 
emissions from the tank in the enclosure) to an ``enclosed combustion 
control device.'' He correctly pointed out that the national emission 
standard allows a wide range of control devices to be used to comply 
with the requirements. In fact, a ``control device'' is defined in 40 
CFR 61.341 of the rule to mean an enclosed combustion device (vapor 
incinerator, boiler, or process heater); a vapor recovery system 
(carbon canister or condenser); or flare.
    The commenter also stated that the amendments were inconsistent 
with the spirit of 40 CFR 264.1082(c)(5) and 265.1083(c)(5) of the RCRA 
rules, in that they would lead to situations where the RCRA rules would 
continue to apply but were not, in fact, intended to be applicable any 
longer. The anomalous situation put forward by the commenter would be 
where a tank is located inside an enclosure, and the enclosure is 
vented to a vapor recovery system designed and operated in accordance 
with the requirements in the benzene waste national emission standard. 
The commenter stated that their tanks meet all the requirements for the 
exemption from the RCRA rules. In this case, however, the control 
device applied to the emissions from the permanent total enclosure is 
not an enclosed combustion control device. Consequently, the facility 
would not qualify for the RCRA exemption, an unintended outcome.
    It was not our intention to restrict the new compliance option for 
tanks to enclosed combustion control devices. Any of the control 
devices allowed under the benzene waste national emission standard can 
be used under the new compliance option provided it meets the control 
device performance standards in 40 CFR 61.349 of subpart FF. The 
benzene waste national emission standard also contains procedures and 
requirements for requesting approval of a control device other than an 
enclosed combustion system, vapor recovery system, or flare.
    We agree with the issue raised by the commenter and are issuing 
final amendments to the new compliance option, based on the parallel 
proposal, that refer simply to the use of a ``control device.'' This 
change allows a tank meeting all of the conditions for exemption under 
40 CFR 264.1082(c)(5) and 265.1083(c)(5) of the RCRA rules to comply 
with the new compliance option using a ``control device'' as defined in 
40 CFR 61.341 of the benzene waste national emission standard (meaning 
an enclosed combustion device, vapor recovery system, or flare). This 
change is effective immediately. No risk, environmental, energy, cost, 
or economic impacts are associated with this action.

III. Editorial Correction to the Amendments

    Since publication of the direct final rule amendments and parallel 
proposal, we identified one cross-reference error. As proposed, 
paragraph (a)(3)(iii) of 40 CFR 61.345 allowed the use of safety 
devices on any container, enclosure, closed-vent system, or control 
device used to comply with the requirements of ``paragraph (e)(1) of 
this section,'' which does not exist. We have corrected this citation 
in today's final rule amendments by referencing the control 
requirements in 40 CFR 61.345(a)(3)(i).

[[Page 67934]]

IV. Statutory and Executive Order Reviews

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 review by the Office of Management and Budget 
(OMB) and the requirements of the Executive Order. The Executive Order 
defines a ``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.
    It has been determined that the final rule amendments are not a 
``significant regulatory action'' under the terms of Executive Order 
12866 and are, therefore, not subject to OMB review.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden 
because the only facility with a total enclosure is already conducting 
annual verifications and keeping the prescribed records. However, the 
OMB has previously approved the information collection requirements in 
the existing national emission standard (40 CFR part 61, subpart FF) 
under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et 
seq. and has assigned OMB control number 2060-0183.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purpose of collecting, validating, and 
verifying information; adjust the existing ways to comply with any 
previously applicable instructions and requirements; train personnel to 
respond to a collection of information; search data sources; complete 
and review the collection of information; and transmit or otherwise 
disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Analysis

    The EPA has determined that it is not necessary to prepare a 
regulatory flexibility analysis in connection with the final rule 
amendments. For the purposes of assessing the impact of today's final 
rule amendments on small entities, small entity is defined as: (1) A 
small business according to the Small Business Administration (SBA) 
size standards by NAICS code ranging from 500 to 1,500 employees; (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 which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of today's final rule 
amendments on small entities, EPA has concluded that this action will 
not impose 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 economic impact on small 
entities, since the primary purpose of the regulatory flexibility 
analysis is to identify and address regulatory alternatives ``which 
minimize any significant economic impact of the proposed rule on small 
entities.'' (See 5 U.S.C. 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 impact on all of the small 
entities subject to the rule. These final rule amendments will not 
create any new costs for affected firms. In fact, the final rule 
amendments will relieve the regulatory burden for all facilities, large 
or small, by broadening the types of control devices that can be used 
to meet the requirements in RCRA rules for exemption from standards for 
tanks. This will decrease compliance costs for a few facilities subject 
to both the RCRA and CAA rules. We have, therefore, concluded that 
today's final rule amendments will relieve regulatory burden for all 
small entities that are subject to both the RCRA and CAA standards for 
tanks located inside a permanent total enclosure.

D. Unfunded Mandates Reform Act

    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 by 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.
    Today's final rule amendments contain no Federal mandate (under the 
regulatory provisions of the UMRA) for State, local, or tribal 
governments. The EPA has determined that the final rule amendments do 
not contain a Federal mandate that may result in expenditures for 
State, local, or tribal governments, in the aggregate, or to the 
private sector of $100 million or more in any 1 year. No costs are 
attributable to the amendments. Thus, the final rule amendments are not 
subject to the requirements of sections 202 and 205 of the UMRA. The 
EPA has also

[[Page 67935]]

determined that the final rule amendments contain no regulatory 
requirements that might significantly or uniquely affect small 
governments. Thus, the final rule amendments are not subject to the 
requirements of section 203 of the UMRA.

E. Executive Order 13132: Federalism

    Executive Order 13132 (64 FR 43255, August 10, 1999) requires 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.''
    These final rule amendments do not have federalism implications. 
They 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. None of the affected 
facilities are owned or operated by State governments. Thus, Executive 
Order 13132 does not apply to the final rule amendments.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175 (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 final rule amendments do not 
have tribal implications, as specified in Executive Order 13175. They 
will not have substantial direct effects on tribal governments, on the 
relationship between the Federal government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes. No tribal governments own facilities 
subject to the benzene waste national emission standard. Thus, 
Executive Order 13175 does not apply to the final rule amendments.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    Executive Order 13045 (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 EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the EPA 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 EPA.
    The EPA interprets Executive Order 13045 as applying only to 
regulatory actions that are based on health or safety risks, such that 
the analysis required under section 5-501 of the Executive Order has 
the potential to influence the regulation. The national emission 
standard for benzene waste operations is based on protection of the 
public health with an ample margin of safety. However, the amendments 
to the benzene waste national emission standard have no effect on the 
level of emissions from benzene waste operations or associated risk and 
are not subject to Executive Order 13045.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    The final rule amendments are not subject to Executive Order 13211 
(66 FR 28355, May 22, 2001) because they are not a significant 
regulatory action under Executive Order 12866.

I. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law 104-113; 15 U.S.C. 272 note), directs 
EPA to use voluntary consensus standards in their regulatory and 
procurement activities unless to do so would be inconsistent with 
applicable law or otherwise impracticable. Voluntary consensus 
standards are technical standards (e.g., material specifications, test 
methods, sampling and analytical procedures, business practices, etc.) 
developed or adopted by one or more voluntary consensus bodies. The 
NTTAA directs EPA to provide Congress, through annual reports to OMB, 
with explanations when EPA does not use available and applicable VCS.
    This action does not involve technical standards. Therefore, EPA 
did not consider the use of any voluntary consensus standards.

J. 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 has submitted a report containing the final rule 
amendments 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 final rule amendments in today's 
Federal Register. The final rule amendments are not a ``major rule'' as 
defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 61

    Environmental protection, Air pollution control, Hazardous 
substances, Reporting and recordkeeping requirements.

    Dated: November 25, 2003.
Michael O. Leavitt,
Administrator.

0
For the reasons stated in the preamble, title 40, chapter I, part 61 of 
the Code of Federal Regulations is amended as follows:

PART 61--[AMENDED]

0
1. The authority citation for part 61 continues to read as follows:

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

Subpart FF--[AMENDED]

0
2. Section 61.343 is amended by:
0
a. Revising paragraph (a)(2);
0
b. Adding paragraph (e) introductory text; and
0
c. Adding paragraph (e)(2).
    The revisions and additions read as follows:


Sec.  61.343  Standards: Tanks.

    (a) * * *
    (2) The owner or operator must install, operate, and maintain an 
enclosure and closed-vent system that routes all organic vapors vented 
from the tank, located inside the enclosure, to a control device in 
accordance with the requirements specified in paragraph (e) of this 
section.
* * * * *
    (e) Each owner or operator who controls air pollutant emissions by 
using an enclosure vented through a closed-vent system to a control 
device must meet the requirements specified in paragraphs (e)(1) 
through (4) of this section.

[[Page 67936]]

    (1) * * *
    (2) The enclosure must be vented through a closed-vent system to a 
control device that is designed and operated in accordance with the 
standards for control devices specified in Sec.  61.349.
* * * * *

0
3. Section 61.345 is amended by revising paragraph (a)(3)(iii) to read 
as follows:


Sec.  61.345  Standards: Containers.

    (a) * * *
    (3) * * *
    (iii) Safety devices, as defined in this subpart, may be installed 
and operated as necessary on any container, enclosure, closed-vent 
system, or control device used to comply with the requirements of 
paragraph (a)(3)(i) of this section.
* * * * *
[FR Doc. 03-30163 Filed 12-3-03; 8:45 am]
BILLING CODE 6560-50-P