[Federal Register Volume 64, Number 122 (Friday, June 25, 1999)]
[Rules and Regulations]
[Pages 34133-34137]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-16088]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 272
[FRL-6364-2]
Idaho: Incorporation by Reference of Approved State Hazardous
Waste Management Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Immediate final rule.
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SUMMARY: Under the Resource Conservation and Recovery Act of 1976, as
amended (RCRA), the EPA may grant States Final Authorization to operate
their hazardous waste management programs in lieu of the Federal
program. EPA uses part 272 of Title 40 Code of Federal Regulations
(CFR) to provide notice of the authorization status of State programs
and to incorporate by reference those provisions of the State statutes
and regulations that are part of the authorized State program. The
purpose of this action is to codify Idaho's authorized hazardous waste
program in 40 CFR part 272. This rule incorporates by reference
provisions of Idaho's hazardous waste statutes and regulations and
clarifies which of these provisions are authorized and federally
enforceable. Unless adverse written comments are received, the EPA's
[[Page 34134]]
decision to incorporate by reference Idaho's authorized hazardous waste
program will take effect as provided below.
DATES: This incorporation by reference of the approved state hazardous
waste management program for Idaho will become effective on August 24,
1999, if EPA receives no adverse comment. Should EPA receive such
comments, EPA will withdraw this rule before its effective date by
publishing a notice of withdrawal in the FR. Any comments on Idaho's
incorporation by reference of the approved state hazardous waste
management program must be filed by July 26, 1999.
ADDRESSES: Mail written comments to Jeff Hunt, U.S. EPA, Region 10,
1200 Sixth Avenue, Mail stop WCM-122, Seattle, WA 98101.
FOR FURTHER INFORMATION CONTACT: Jeff Hunt, U.S. EPA, Region 10, 1200
Sixth Avenue, Mail stop WCM-122, Seattle, WA 98101, phone number (206)
553-0256.
SUPPLEMENTARY INFORMATION:
A. Background
Section 3006 of RCRA, 42 U.S.C. 6926 et seq., allows the EPA to
authorize State hazardous waste programs to operate in the State in
lieu of the Federal hazardous waste program. EPA provides notice of its
authorization of State programs in 40 CFR part 272 and incorporates by
reference therein the State statutes and regulations that are a part of
the authorized State program under RCRA. This effort provides clearer
notice to the public of the scope of the authorized programs. The
incorporation by reference of State authorized programs in the CFR
should substantially enhance the public's ability to discern the
current status of the authorized State program and clarify the extent
of Federal enforcement authority.
Effective February 4, 1991 (55 FR 50327) and subsequently revised
effective August 10, 1992 (57 FR 24757), EPA incorporated by reference
Idaho's then authorized hazardous waste program, including all HSWA and
non-HSWA Federal requirements promulgated as of June 30, 1990. The
purpose of today's Federal Register document is to incorporate by
reference EPA's authorization of Idaho's subsequent two revisions to
that program. This rule incorporates by reference provisions of State
hazardous waste statutes and regulations and clarifies which of these
provisions are included in the authorized and Federally enforceable
program.
B. Idaho Authorized Hazardous Waste Program
Idaho received Final Authorization for its RCRA hazardous waste
base program on March 26, 1990, effective April 9, 1990 (55 FR 11015).
EPA incorporated by reference the then authorized hazardous waste
program in Subpart N of 40 CFR part 272. The State statutes and
regulations are incorporated by reference at Sec. 272.651(a), and the
Memorandum of Agreement, the Attorney General's Statement and the
Program Description are referenced at 40 CFR 272.651(b), 272.651(c) and
272.651(d), respectively.
Since the most recent codification, Idaho has received
authorization for revisions to its program on April 12, 1995, effective
June 11, 1995 (60 FR 18549) and on October 21, 1998, effective January
19, 1999 (63 FR 56086). In this document EPA is revising the
incorporation by reference of Idaho's authorized hazardous waste
program in Subpart N of 40 CFR part 272, to include these revisions.
The Agency retains the authority under sections 3007, 3008, 3013
and 7003 of RCRA to undertake enforcement actions in authorized States.
With respect to such an enforcement action, the Agency will rely on
Federal sanctions, Federal inspection authorities, and the Federal
Administrative Procedure Act rather than the authorized State analogues
to these requirements. Therefore, the Agency does not intend to
incorporate by reference for purposes of enforcement such particular,
authorized Idaho enforcement authorities. Section 272.651(a)(1) of 40
CFR lists those enforcement authorities that are part of the authorized
program but are not incorporated by reference.
The public also needs to be aware that some provisions of a State's
hazardous waste management program are not part of the Federally
authorized State program. These nonauthorized provisions include:
(1) Provisions that are not part of the RCRA subtitle C program
because they are ``broader in scope'' than RCRA subtitle C (see 40 CFR
271.1(i));
(2) Federal provisions which the State incorporated into its
regulations when the State adopted Federal regulations by reference,
but for which the State is not authorized;
(3) Unauthorized amendments to authorized State provisions.
State provisions that are ``broader in scope'' than the Federal
program are not part of the RCRA authorized program and EPA will not
enforce them. Therefore, they are not incorporated by reference in 40
CFR part 272. For reference and clarity, section 272.651(a)(3) of 40
CFR lists the Idaho statutory and regulatory provisions which are
``broader in scope'' than the Federal program. Although EPA will not
enforce these provisions, the State may enforce them under State law.
C. HSWA Provisions
The Agency is not amending 40 CFR part 272 to include HSWA
requirements and prohibitions that are implemented by EPA. Section
3006(g) of RCRA provides that any HSWA requirement or prohibition
(including implementing regulations) take effect in authorized and not
authorized States at the same time. A HSWA requirement or prohibition
supersedes any less stringent or inconsistent State provision which may
have been previously authorized by EPA (50 FR 28702, July 15, 1985).
EPA has the authority to implement HSWA requirements in all States,
including authorized States, until the States become authorized for
such requirement or prohibition. Authorized States are required to
revise their programs to adopt the HSWA requirements and prohibitions,
and then to seek authorization for those revisions pursuant to 40 CFR
part 271.
Instead of amending the 40 CFR part 272 every time a new HSWA
provision takes effect under the authority of RCRA section 3006(g), EPA
will wait until the State receives authorization for its analog to the
new HSWA provision before amending the State's 40 CFR part 272
incorporation by reference. Until then, persons wanting to know whether
a HSWA requirement or prohibition is in effect should refer to 40 CFR
271.1(j), as amended, which lists each such provision.
Some existing State requirements may be similar to the HSWA
requirement implement by EPA. However, until EPA authorizes those State
requirements, EPA can only enforce the HSWA requirements and not the
State analogs. EPA will not codify those State requirements until the
State receives authorization for those requirements.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub.
L. 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, 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,
[[Page 34135]]
and tribal governments, in the aggregate, or to the private sector, of
$100 million or more in any one year. Before promulgating an EPA rule
for which a written statement is needed, section 205 of the UMRA
generally requires 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 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
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 section 202 and 205 requirements do not apply to today's action
because it is not a ``Federal mandate'' and because it does not impose
annual costs of $100 million or more for State, local and/or tribal
governments in the aggregate, or the private sector. Today's action
contains no Federal mandates for State, local or tribal governments or
the private sector because it does not impose new or additional
enforceable duties on any State, local or tribal governments or the
private sector. This rule merely incorporates by reference existing
requirements with which regulated entities must already comply under
State and Federal law. For this same reason, this action will not
result in annual expenditures of $100 million or more for State, local,
and/or tribal governments in the aggregate, or the private sector
because it incorporates by reference an existing State program that EPA
previously authorized. Costs to the State, local and/or tribal
governments, and to regulated entities already exist under the
authorized program. Further, as it applies to the State, this action
does not impose a Federal intergovernmental mandate because UMRA does
not include duties arising from participation in a voluntary federal
program.
The requirements of section 203 of UMRA also do not apply to
today's action because it contains no regulatory requirements that
might significantly or uniquely affect small governments. Although
small governments may be hazardous waste generators, transporters, or
own and/or operate treatment, storage, and disposal facilities, this
codification incorporates into the CFR Idaho's requirements which EPA
already authorized under 40 CFR part 271. Small governments are not
subject to any additional significant or unique requirements by virtue
of this action.
Certification Under the Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.,
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996), whenever an agency is required to publish a notice of rulemaking
for any proposed or final rule, it must prepare and make available for
public comment a regulatory flexibility analysis that describes the
effect of the rule on small entities (i.e., small businesses, small
organizations, and small governmental jurisdictions). This analysis is
unnecessary, however, if the agency's administrator certifies that the
rule will not have a significant economic impact on a substantial
number of small entities.
The EPA has determined that this codification will not have a
significant economic impact on a substantial number of small entities.
Such small entities which are hazardous waste generators, transporters,
or which own and/or operate treatment, storage, or disposal facilities
are already subject to the State requirements authorized by EPA under
40 CFR part 271. The EPA's codification does not impose any additional
burdens on these small entities.
Pursuant to the provision at 5 U.S.C. 605(b), the Agency hereby
certifies that this codification will not have a significant economic
impact on a substantial number of small entities. This codification
incorporates Idaho's requirements which have been authorized by EPA
under 40 CFR part 271 into the CFR. It does not impose any new burdens
on small entities. This rule, therefore, does not require a regulatory
flexibility analysis.
Submission to Congress and the Comptroller General
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 today's Federal Register. This rule is
not a ``major rule'' as defined by 5 U.S.C. 804(2).
Compliance With Executive Order 12866
The Office of Management and Budget has exempted this rule from the
requirements of Executive Order 12866.
Compliance With Executive Order 12875
Under Executive Order 12875, EPA may not issue a regulation that is
not required by statute and that creates a mandate upon a State, local
or tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments, or EPA consults with those governments. If EPA complies
with consulting, Executive Order 12875 requires EPA to provide to the
Office of Management and Budget a description of the extent of EPA's
prior consultation with representatives of affected State, local and
tribal governments, the nature of their concerns, copies of any written
communications from the governments, and a statement supporting the
need to issue the regulation. In addition, Executive Order 12875
requires EPA to develop an effective process permitting elected
officials and other representatives of State, local and tribal
governments ``to provide meaningful and timely input in the development
of regulatory proposals containing significant unfunded mandates.''
This rule does not create a mandate on State, local or tribal
governments. The rule does not impose any enforceable duties on these
entities. The State administers its hazardous waste program
voluntarily, and any duties on other State, local or tribal
governmental entities arise from that program, not from this today's
action. This rule merely incorporates by reference existing
requirements with which regulated entities must already comply under
State and Federal law. Accordingly, the requirements of
[[Page 34136]]
Executive Order 12875 do not apply to this rule.
Compliance With Executive Order 13045
Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks,'' applies to any rule that: (1) The
Office of Management and Budget determines is ``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 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.
This rule is not subject to E.O. 13045 because it is not an
economically significant rule as defined by E.O. 12866, and because it
does not involve decisions based on environmental health or safety
risks.
Compliance With Executive Order 13084
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA complies with consulting, Executive Order 13084
requires EPA to provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected officials and other
representatives of Indian tribal governments ``to provide meaningful
and timely input in the development of regulatory policies on matters
that significantly or uniquely affect their communities.''
This rule is not subject to E.O. 13084 because it does not
significantly or uniquely affects the communities of Indian tribal
governments. Idaho is not authorized to implement the RCRA hazardous
waste program in Indian country. This action has no effect on the
hazardous waste program that EPA implements in the Indian country
within the State.
Paperwork Reduction Act
Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., Federal
agencies must consider the paperwork burden imposed by any information
request contained in a proposed rule or a final rule. This rule will
not impose any information requirements upon the regulated community.
National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Pub L. No. 104-113, Sec. 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
This action does not involve technical standards. Therefore, EPA
did not consider the use of any voluntary consensus standards.
List of Subjects in 40 CFR Part 272
Environmental Protection, Administrative practice and procedure,
Confidential business information, Hazardous waste, Hazardous waste
transportation, Incorporation by reference, Indian lands,
Intergovernmental relations, Penalties, Reporting and recordkeeping
requirements, Water pollution control, Water supply.
Authority: This rule is issued under the authority of Sections
2002(a), 3006 and 7004(b) of the Solid Waste Disposal Act as amended
42 U.S.C. 6912(a), 6926, 6974(b).
Dated: June 9, 1999.
Chuck Findley,
Acting Regional Administrator, U.S. Environmental Protection Agency,
Region 10.
For the reasons set forth in the preamble, 40 CFR part 272 is
amended as follows:
PART 272--APPROVED STATE HAZARDOUS WASTE MANAGEMENT PROGRAMS
1. The authority citation for part 272 continues to read as
follows:
Authority: Sections 2002(a), 3006, and 7004(b) of the Solid
Waste Disposal Act, as amended by the Resource Conservation and
Recovery Act of 1976, as amended, 42 U.S.C. 6912(a), 6926, and
6974(b).
Subpart N--[Amended]
Sec. 272.650 [Amended]
2. Section 272.650 is removed and reserved.
3. Section 272.651 is revised to read as follows:
Sec. 272.651 Idaho State-Administered Program: Final Authorization.
(a) Pursuant to section 3006(b) of RCRA, 42 U.S.C. 6926(b), Idaho
has final authorization for the following elements as submitted to EPA
in Idaho's base program application for final authorization which was
approved by EPA effective on April 9, 1990. Subsequent program revision
applications were approved effective on June 5, 1992, August 10, 1992,
June 11, 1995, and January 19, 1999.
(b) State statutes and regulations. (1) The Idaho statutes and
regulations cited in this paragraph are incorporated by reference as
part of the hazardous waste management program under subtitle C of
RCRA, 42 U.S.C. 6921 et seq.
(i) The EPA Approved Idaho Statutory Requirements Applicable to the
Hazardous Waste Management Program, dated April 1999.
(ii) The EPA Approved Idaho Regulatory Requirements Applicable to
the Hazardous Waste Management Program, dated April 1999.
(2) The following statutes and regulations concerning State
procedures and enforcement, although not incorporated by reference, are
part of the authorized State program:
(i) Idaho Code (I.C.) containing the General Laws of Idaho
Annotated, Volume 7A, Title 39, Chapter 44, ``Hazardous Waste
Management'', published in 1993 by the Michie Company, Law Publishers,
Charlottesville, Virginia: sections 39-4404; 39-4405 (except 39-
4405(8)); 39-4406; 39-4407; 39-4408(4); 39-4409(2) (except first
sentence); 39-4409(3); 39-4409(4) (first sentence); 39-4410; 39-4412
through 39-4416; 39-4418; 39-4419; 39-4421; 39-4422; and 39-4423(3)
(a)&(b).
(ii) 1996 Cumulative Pocket Supplement to the Idaho Code, Volume
7A, Title 39, Chapter 44, ``Hazardous Waste Management'', published in
1996
[[Page 34137]]
by the Michie Company, Law Publishers, Charlottesville, Virginia:
sections 39-4411(1); 39-4411(3); and 39-4411(6).
(iii) Idaho Code (I.C.) containing the General Laws of Idaho
Annotated, Volume 7A, Title 39, Chapter 58, ``Hazardous Waste Facility
Siting Act'', published in 1993 by the Michie Company, Law Publishers,
Charlottesville, Virginia: sections 39-5804; 39-5809; 39-5810; 39-
5813(2); 39-5814; 39-5816; 39-5817; and 39-5818(1).
(iv) Idaho Code (I.C.) containing the General Laws of Idaho
Annotated, Volume 2, Title 9, Chapter 3, ``Public Writings'', published
in 1990 by the Michie Company, Law Publishers, Charlottesville,
Virginia: sections 9-337(10); 9-337(11); 9-338; 9-339; and 9-344(2).
(v) 1994 Cumulative Pocket Supplement to the Idaho Code (I.C.),
Volume 2, Title 9, Chapter 3, ``Public Writing'', published in 1994 by
the Michie Company, Law Publishers, Charlottesville, Virginia: sections
9-340 and 9-343.
(vi) Idaho Department of Health and Welfare Rules and Regulations,
Idaho Administrative Code, IDAPA 16, Title 1, Chapter 5, ``Rules and
Standards for Hazardous Waste'', as published on July 1, 1997: sections
16.01.05.000; 16.01.05.356.02 through 16.01.05.356.05; 16.01.05.800;
16.01.05.850; 16.01.05.996; 16.01.05.997; and 16.01.05.999.
(3) The following statutory and regulatory provisions are broader
in scope than the Federal program, are not part of the authorized
program, and are not incorporated by reference:
(i) Idaho Code containing the General Laws of Idaho Annotated,
Volume 7A, Title 39, Chapter 44, ``Hazardous Waste Management'',
published in 1993 by the Michie Company, Law Publishers,
Charlottesville, Virginia: sections 39-4428 and 39-4429.
(ii) 1996 Cumulative Pocket Supplement to the Idaho Code, Volume
7A, Title 39, Chapter 44, ``Hazardous Waste Management'', published in
1994 by the Michie Company, Law Publishers, Charlottesville, Virginia:
sections 39-4403 (6)&(14) and 39-4427.
(iii) Idaho Code containing the General Laws of Idaho Annotated,
Volume 7A, Title 39, Chapter 58, ``Hazardous Waste Siting Act'',
published in 1993 by the Michie Company, Law Publishers,
Charlottesville, Virginia: section 39-5813(3).
(iv) Idaho Department of Health and Welfare Rules and Regulations,
Idaho Administrative Code, IDAPA 16, Title 1, Chapter 5, ``Rules and
Standards for Hazardous Waste'', as published on July 1, 1997: sections
16.01.05.355; and 16.01.05.500.
(4) Memorandum of Agreement. The Memorandum of Agreement between
EPA Region 10 and the Division of Environmental Quality, signed by the
EPA Regional Administrator on October 6, 1998, is referenced as part of
the authorized hazardous waste management program under subtitle C of
RCRA, 42 U.S.C. 6921 et seq.
(5) Statement of Legal Authority. ``Attorney General's Statement
for Final Authorization'', signed by the Attorney General of Idaho on
July 5, 1988 and revisions, supplements and addenda to that Statement
dated July 3, 1989, February 13, 1992, December 29, 1994, September 16,
1996, and October 3, 1997 are referenced as part of the authorized
hazardous waste management program under subtitle C of RCRA, 42 U.S.C.
6921 et seq.
(6) Program Description. The Program Description and any other
materials submitted as part of the original application or as
supplements thereto are referenced as part of the authorized hazardous
waste management program under subtitle C of RCRA, 42 U.S.C. 6921 et
seq.
4. Appendix A to part 272, State Requirements, is amended by adding
in alphabetical order the listing for ``Idaho'' to read as follows:
* * * * *
Idaho
The statutory provisions include:
Idaho Code containing the General Laws of Idaho Annotated, Volume
7A, Title 39, Chapter 44, ``Hazardous Waste Management'', 1993:
sections 39-4402; 39-4408 (1)-(3); 39-4409(1) (except fourth and fifth
sentences); 39-4409(2) (first sentence); 39-4409(4) (except first
sentence); 39-4409(5); 39-4409(6); 39-4409(7); 39-4409(8); 39-4423
(except 39-4423(3)(a)&(b)); and 39-4424.
1996 Cumulative Pocket Supplement to the Idaho Code, Volume 7A,
Title 39, Chapter 44, ``Hazardous Waste Management'', 1996: sections
39-4403 (except 39-4403 (6)&(14)); 39-4411(2); 39-4411(4); and 39-
4411(5).
Idaho Code containing the General Laws of Idaho Annotated, Volume
7A, Title 39, Chapter 58, ``Hazardous Waste Facility Siting Act'',
published in 1993 by the Michie Company, Law Publishers,
Charlottesville, Virginia: sections 39-5802; 39-5803; 39-5808; 39-5811;
39-5813(1); and 39-5818(2).
Copies of the Idaho statutes that are incorporated by reference are
available from Michie Company, Law Publishers, 1 Town Hall Square,
Charlottesville, VA 22906-7587.
The regulatory provisions include:
Idaho Department of Health and Welfare Rules and Regulations, Idaho
Administrative Code, IDAPA 16, Title 1, Chapter 5, ``Rules and
Standards for Hazardous Waste'', as published on July 1, 1997: sections
16.01.05.001; 16.01.05.002; 16.01.05.003; 16.01.05.004; 16.01.05.005;
16.01.05.006; 16.01.05.007; 16.01.05.008; 16.01.05.009; 16.01.05.010;
16.01.05.011; 16.01.05.012; 16.01.05.013; 16.01.05.014; 16.01.05.015;
16.01.05.016; 16.01.05.356.01; and 16.01.05.998.
Note: The 1997 Idaho Code, section 16.01.05.011, contains a
typographical error discovered during codification. The reference to
``39-4403(16)'' should read ``39-4403(17)''. Idaho has subsequently
corrected this typographical error in the 1998 Idaho Code and will
submit the corrected version in the next authorization package.
* * * * *
[FR Doc. 99-16088 Filed 6-24-99; 8:45 am]
BILLING CODE 6560-50-P
