[Federal Register Volume 69, Number 134 (Wednesday, July 14, 2004)]
[Rules and Regulations]
[Pages 42117-42122]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-15942]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 60 and 62

[OAR-2004-0007; FRL-7786-8]
RIN 2060-AM11


Emission Guidelines and Compliance Times for Large Municipal 
Waste Combustors That are Constructed on or Before September 20, 1994 
and Federal Plan Requirements for Large Municipal Waste Combustors 
Constructed on or Before September 20, 1994

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule; amendments.

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SUMMARY: We are amending the large municipal waste combustor (MWC) 
emission guidelines to add a carbon monoxide (CO) emission limit for 
one type of MWC technology that was not previously addressed. When the 
large MWC emission guidelines were developed, all existing MWC units 
using the fluidized bed, mixed fuel (wood/refuse-derived fuel) 
technology were judged to be small MWC units, i.e., having a design 
combustion capacity of 35 to 250 tons per day (tpd) of municipal solid 
waste (MSW). Two existing MWC units have since been determined to be 
large MWC units, i.e., having a design combustion capacity greater than 
250 tpd MSW, and thus subject to the large MWC emission guidelines. The 
direct final rule amends the emission guidelines to add a CO emission 
limit specific to this technology. The direct final rule also amends 
the large MWC Federal plan, which implements the emission guidelines. 
The CO emission limit being added of 200 parts per million (ppm) by dry 
volume (24-hour geometric mean) for fluidized bed, mixed fuel (wood/
refuse-derived fuel) type MWC unit is the same CO limit used for this 
technology in the emission guidelines for small MWC units. Low CO 
levels indicate good combustion, and thus, good control of other 
pollutants. Good combustion combined with air pollution control devices 
significantly reduces the release of air pollutants to the environment.

DATES: The direct final rule is effective September 13, 2004, unless 
significant material adverse comments are received by August 13, 2004. 
If we receive significant material adverse comments, we will publish a 
timely withdrawal of the direct final rule in the Federal Register.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. OAR-2004-0007. All documents in the docket are listed in 
the EDOCKET index at http://www.epa.gov/edocket. Although listed in the 
index, some information is not publicly available, i.e., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, is not placed on the Internet 
and will be publicly available only in hard copy form. Publicly 
available docket materials are available either electronically in 
EDOCKET or in hard copy at the EPA Docket Center (EPA/DC), EPA West 
Building, Room B102, 1301 Constitution Ave., NW, Washington, DC. The 
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 Public 
Reading Room is (202) 566-1744, and the telephone number for the EPA 
Docket Center is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Mr. Walt Stevenson, Combustion Group, 
Emission Standards Division (C439-01), U.S. Environmental Protection 
Agency, Research Triangle Park, North Carolina 27711, (919) 541-5264, 
e-mail [email protected].

SUPPLEMENTARY INFORMATION: A companion proposal to the direct final 
rule is being published in today's Federal Register and is identical to 
the

[[Page 42118]]

direct final rule. Any comments on the amendments should address the 
proposal. If significant material adverse comments are received by the 
date specified in the proposed amendments, the direct final rule will 
be withdrawn and the comments on the proposed amendments will be 
addressed by EPA in a subsequent final rule. If no significant material 
adverse comments are received on any provision of the direct final 
rule, then no further action will be taken on the companion proposal 
and the amendments will become effective September 13, 2004.
    Regulated Entities. Categories and entities potentially regulated 
by the direct final rule are existing MWC units with a design 
combustion capacity of greater than 250 tpd of MSW. The MWC emission 
guidelines and the MWC Federal plan affect the following categories of 
sources:

----------------------------------------------------------------------------------------------------------------
                                                                                         Examples of potentially
             Category                      NAICS code                 SIC code             regulated entities
----------------------------------------------------------------------------------------------------------------
Industry, Federal government, and  562213, 92411............  4953, 9511..............  Solid waste combustors
 State/local/tribal governments.                                                         or incinerators at
                                                                                         waste-to-energy
                                                                                         facilities that
                                                                                         generate electricity or
                                                                                         steam from the
                                                                                         combustion of garbage
                                                                                         (typically municipal
                                                                                         solid waste); and solid
                                                                                         waste combustors or
                                                                                         incinerators at
                                                                                         facilities that combust
                                                                                         garbage (typically
                                                                                         municipal solid waste)
                                                                                         and do not recover
                                                                                         energy from the waste.
----------------------------------------------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by the 
direct final rule. To determine whether your facility is regulated by 
the direct final rule, you should examine the applicability criteria in 
Sec.  60.32b of subpart Cb, and Sec.  62.14102 of subpart FFF. If you 
have any questions regarding the applicability of the direct final rule 
to a particular entity, contact the person listed in the preceding FOR 
FURTHER INFORMATION CONTACT section.
    Docket. The docket number for the amendment to the emission 
guidelines (40 CFR part 60, subpart Cb) and Federal plan (40 CFR part 
62, subpart FFF) is OAR-2004-0007. Other dockets incorporated by 
reference include Docket ID Nos. A-89-08, A-90-45, and A-98-18 for the 
emission guidelines amendment and Docket ID Nos. A-97-45 and A-2000-39 
for the Federal plan amendment. The docket includes background 
information and supported the proposal and promulgation of the emission 
guidelines (40 CFR part 60, subparts Ca and Ea) and large MWC Federal 
plan (40 CFR part 62, subpart FFF).
    Worldwide Web (WWW). In addition to being available in the docket, 
an electronic copy of the proposed rule is also available on the WWW 
through the Technology Transfer Network (TTN). Following signature, a 
copy of the promulgated direct final rule 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 actions taken by the final rule 
amendments is available on the filing of petition for review in the 
U.S. Court of Appeals for the District of Columbia Circuit within 60 
days of today's publication of the direct final rule. Under section 
307(b)(2) of the CAA, the requirements that are subject to today's 
action may not be challenged later in civil or criminal proceedings 
brought by EPA to enforce these requirements. Under section 307(d)(7) 
of the CAA, only an objection to a rule or procedure raised with 
reasonable specificity during the period for public comment or public 
hearing may be raised for judicial review.
    Outline. The information presented in this preamble is organize as 
follows:

I. Background
II. Statutory and Executive Order Reviews
    A. Executive Order 12866, Regulatory Planning and Review
    B. Paper Reduction Act
    C. Regulatory Flexibility Act
    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

    The direct final rule amends the MWC emission guidelines and the 
MWC Federal plan for large MWC units to add a CO emission limit for 
bubbling fluidized bed combustors that burn a mixture of wood and 
refuse-derived fuel (RDF). This is the same combustor technology and CO 
emission limit that appear in the small MWC emission guidelines. In 
developing the emission guidelines for small MWC units, we recognized 
the unique characteristics of the existing bubbling fluidized bed MWC 
units combusting a mixture of wood and RDF and included a CO emission 
limit specific to that technology. Since promulgation of the emission 
guidelines for large MWC units, two existing fluidized bed MWC units 
combusting a mixture of wood and RDF were determined to be large MWC 
units, subject to the large MWC emission guidelines. However, the large 
MWC emission guidelines did not include bubbling fluidized bed MWC 
units combusting a mixture of wood and RDF because none were judged to 
be in the large category when the large MWC emission guidelines were 
developed and adopted in 1995. The direct final rule amendments 
recognize bubbling fluidized bed (wood/RDF) MWC units as an MWC 
technology in the large MWC category and add a CO emission limit of 200 
ppm by dry volume (24-hour geometric mean). This is the same CO 
emission limit, and is based on the same analysis for this technology, 
that appears in the small MWC emission guidelines. The direct final 
rule amendments similarly revise the large MWC Federal plan, which 
implements the emission guidelines.

II. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), we 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 ``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

[[Page 42119]]

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.
    We have determined that the direct final rule is not a 
``significant regulatory action'' under the terms of Executive Order 
12866, and, therefore, is not subject to review by OMB because the 
final rule will not have an annual effect on the economy of $100 
million or more and does not impose any additional control requirements 
above the 1995 emission guidelines. We considered the 1995 emission 
guidelines to be ``significant,'' and OMB reviewed them in 1995 (see 60 
FR 65405, December 19, 1995).

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
The amendment contained in the direct final rule results in no changes 
to the information collection requirements of the standards or 
guidelines and will have no impact on the information collection 
estimate of project cost and hour burden made and approved by OMB 
during the development of the emission guidelines and Federal plan. 
Therefore, the information collection requests have not been revised. 
The Office of Management and Budget has previously approved the 
information collection requirements contained in the existing emission 
guidelines (40 CFR part 60, subpart Cb) and the Federal plan (40 CFR 
part 62, subpart FFF) under the provisions of the Paperwork Reduction 
Act, 44 U.S.C. 3501 et seq., at the time the rules were promulgated on 
December 1995 and November 1998, respectively. The Office of Management 
and Budget assigned OMB control number 2060-0210 (EPA ICR 1506.07) to 
the emission guidelines and OMB control number 2060-0390 (EPA ICR 
1847.01) to the Federal plan.
    Copies of the ICR document(s) may be obtained from Susan Auby by 
mail at U.S. EPA, Office of Environmental Information, Collection 
Strategies Division (2822T), 1200 Pennsylvania Avenue, NW., Washington, 
DC 20460, by email at [email protected], or by calling (202) 566-1672. 
A copy may also be downloaded off the Internet at http://www.epa.gov/icr.
    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 purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able 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 Act

    The Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996, 5 U.S.C. 
601 et seq., generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedures Act or any 
other statute unless the agency certifies that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small government organizations, and 
small government jurisdictions.
    For purposes of assessing the impacts of today's direct final rule 
on small entities, small entity is defined as follows: (1) A small 
business in the regulated industry that has a gross annual revenue less 
than $6 million; (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; or (3) a small organization that 
is any not-for-profit enterprise that is independently owned and 
operated and is not dominant in its field.
    Section 605 of the RFA requires Federal agencies to give special 
consideration to the impacts of regulations on small entities, which 
are small businesses, small organizations, and small governments. 
During the 1995 MWC rulemaking, EPA estimated that few, if any, small 
entities would be affected by the promulgated guidelines and standards 
and, therefore, a regulatory flexibility analysis was not required (see 
60 FR 65413).
    After considering the economic impacts of today's direct final rule 
on small entities, I certify that this action will not have a 
significant economic impact on a substantial number of small entities. 
The direct final rule will not impose any requirements on small 
entities because it does not impose any additional regulatory 
requirements.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act (UMRA) of 1995, 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, we 
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 by 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 us 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 us to adopt an alternative other than the least 
costly, most cost-effective, or least burdensome alternative if we 
publish with the final rule an explanation why that alternative was not 
adopted.
    Before we establish any regulatory requirements that may 
significantly or uniquely affect small governments, including tribal 
governments, we must develop a small government agency plan under 
section 203 of the UMRA. 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 our regulatory proposals with significant Federal 
intergovernmental mandates, and informing, educating, and advising 
small governments on compliance with the regulatory requirements.
    We have determined that the final rule does 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 the private 
sector in any 1 year. Thus,

[[Page 42120]]

the final rule is not subject to the requirements of section 202 and 
205 of the UMRA. In addition, we have determined that the direct final 
rule contains no regulatory requirements that might significantly or 
uniquely affect small governments because the burden is small and the 
regulation does not unfairly apply to small governments. Therefore, the 
direct final rule is 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.''
    Under section 6 of Executive Order 13132, we may not issue a 
regulation that imposes substantial direct compliance costs, and that 
is not required by statute, unless the Federal government provides the 
funds necessary to pay the direct compliance costs incurred by State 
and local governments, or we consult with State and local officials 
early in the process of developing the proposed regulation. Also, we 
may not issue a regulation that has federalism implications and that 
preempts State law, unless we consult with State and local officials 
early in the process of developing the proposed regulation.
    The 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. The direct final 
rule will not impose substantial direct compliance costs on State or 
local governments, it will not preempt State law. Thus, Executive Order 
13132 does not apply to the final rule.

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

    Executive Order 13175 (65 FR 67249, November 9, 2000) requires us 
to develop an accountable process to ensure ``meaningful and timely 
input by tribal officials in the development of regulatory policies 
that have tribal implications.'' ``Policies that have Tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on relationship between the 
Federal government and the Indian tribes, or on the distribution of 
power and responsibilities between the Federal government and Indian 
tribes.''
    The direct final rule does not have tribal implications, as 
specified in Executive Order 13175. It 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, as 
specified in Executive Order 13175. Thus, Executive Order 13175 does 
not apply to the direct final rule.

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 we have reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, we 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 we considered.
    We interpret 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 Executive Order has 
the potential to influence the regulation. The direct final rule is not 
subject to Executive Order 13045 because it is based on technology 
performance and not on health and safety risks. Also, the direct final 
rule is not ``economically significant.''

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

    The direct final rule is not subject to Executive Order 13211 (66 
FR 43255, May 22, 2001) because it is 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, section 12(d)(15 U.S.C. 272 
note) directs us to use voluntary consensus standards in our regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., material specifications, test methods, sampling 
procedures, business practices) developed or adopted by one or more 
voluntary consensus bodies. The NTTAA directs us to provide Congress, 
through OMB, explanations when we decide not to use available and 
applicable voluntary consensus standards.
    The direct final rule does not involve technical standards. 
Therefore, the requirements of the NTTAA do not apply.

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 Congress and to the Comptroller General of the United 
States. We will submit a report containing the direct final 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 direct final rule in the Federal Register. A 
major rule cannot take effect until 60 days after it is published in 
the Federal Register. The direct final rule is not a ``major rule'' as 
defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Parts 60 and 62

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

    Dated: July 8, 2004.
Michael O. Leavitt,
Administrator.

0
For reasons stated in the preamble, title 40, chapter I, part 60 of the 
Code of Federal Regulations is amended as follows:

PART 60--[AMENDED]

0
1. The authority citation for part 60 continues to read as follows:

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

[[Page 42121]]

Subpart Cb--[Amended]

0
2. Amend Sec.  60.34b by revising Table 3--Municipal Waste Combustor 
Operating Guidelines to read as follows:


Sec.  60.34b  Emission guidelines for municipal waste combustor 
operating practices.

* * * * *

        Table 3.--Municipal Waste Combustor Operating Guidelines
------------------------------------------------------------------------
                                     Carbon monoxide
                                     emissions level
     Municipal waste combustor          (parts per       Averaging time
            technology                  million by          (hrs) b
                                        volume) a
------------------------------------------------------------------------
Mass burn waterwall...............                100                  4
Mass burn refractory..............                100                  4
Mass burn rotary refractory.......                100                 24
Mass burn rotary waterwall........                250                 24
Modular starved air...............                 50                  4
Modular excess air................                 50                  4
Refuse-derived fuel stoker........                200                 24
Fluidized bed, mixed fuel (wood/                  200               c 24
 refuse-derived fuel).............
Bubbling fluidized bed combustor..                100                  4
Circulating fluidized bed                         100                  4
 combustor........................
Pulverized coal/refuse-derived                    150                  4
 fuel mixed fuel-fired combustor..
Spreader stoker coal/refuse-                      200                24
 derived fuel mixes fuel-fired
 combustor........................
------------------------------------------------------------------------
a Measured at the combustor outlet in conjunction with a measurement of
  oxygen concentration, corrected to 7 percent oxygen, dry basis.
  Calculated as an arithmetic average.
b Averaging times are 4-hour or 24-hour block averages.
c 24-hour block average, geometric mean.

* * * * *

PART 62--[AMENDED]

0
1. The authority citation for part 62 continues to read as follows:

    Authority: 42 U.S.C. 7401-7671q.

0
2. Amend subpart FFF by revising Table 3 to read as follows:

Subpart FFF--[AMENDED]

* * * * *

 Table 3 of Subpart FFF of Part 62.--Municipal Waste Combustor Operating
                              Requirements
------------------------------------------------------------------------
                                     Carbon monoxide
                                     emissions level
     Municipal waste combustor          (parts per       Averaging time
            technology                  million by          (hrs) b
                                        volume) a
------------------------------------------------------------------------
Mass burn waterwall...............                100                  4
Mass burn refractory..............                100                  4
Mass burn rotary refractory.......                100                 24
Mass burn rotary waterwall........                250                 24
Modular starved air...............                 50                  4
Modular excess air................                 50                  4
Refuse-derived fuel stoker........                200                 24
Fluidized bed, mixed fuel (wood/                  200               c 24
 refuse-derived fuel).............
Bubbling fluidized bed combustor..                100                  4
Circulating fluidized bed                         100                  4
 combustor........................
Pulverized coal/refuse-derived                    150                  4
 fuel mixed fuel-fired combustor..
Spreader stoker coal/refuse-                      200                24
 derived fuel mixed fuel-fired
 combustor........................
------------------------------------------------------------------------
a Measured at the combustor outlet in conjunction with a measurement of
  oxygen concentration, corrected to 7 percent oxygen, dry basis.
  Calculated as an arithmetic average.
b Averaging times are 4-hour or 24-hour block averages.
c 24-hour block average, geometric mean.


[[Page 42122]]

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[FR Doc. 04-15942 Filed 7-13-04; 8:45 am]
BILLING CODE 6560-50-P