[Federal Register: November 25, 2002 (Volume 67, Number 227)]
[Notices]
[Page 70594-70598]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25no02-57]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-7413-2]
Comprehensive Environmental Response, Compensation and Liability
Act (CERCLA) or Superfund, Section 128(a); Notice of Grants Funding
Guidance for State and Tribal Response Programs
AGENCY: Environmental Protection Agency.
ACTION: Notice.
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SUMMARY: The Environmental Protection Agency (EPA) will begin to accept
proposals on November 25, 2002, for grants to supplement State and
Tribal Response Programs cleanup capacity. This notice provides
guidance on eligibility for funding, use of funding, grant mechanisms
and process for awarding funding, the allocation system for
distribution of funding, and terms and reporting under these grants.
EPA has consulted with State and tribal officials in developing this
guidance.
Since 1997, the EPA Brownfields program has been funding state and
tribal response programs including Superfund Core funding for state and
tribal voluntary cleanup programs and pre-remedial site assessment
funding for state- and tribal-conducted Targeted Brownfields
Assessments (TBA). Through section 128(a), Congress built upon these
activities and provided EPA with expanded authority to fund other
activities that build capacity for state and tribal response programs
as well as authority to grant funds to states and Indian tribes to
capitalize revolving loan funds and support insurance mechanisms. One
goal of this funding is to ensure that state and tribal response
programs include, or are taking reasonable steps to include, certain
elements and another is to provide funding for other activities that
increase the number of response actions conducted or overseen, by a
state or tribal response program.
This funding is not intended to supplant current state or tribal
funding
[[Page 70595]]
for their response programs. Instead, it is to supplement their funding
to increase their cleanup capacity.
For fiscal year 2003, EPA will consider funding requests up to a
maximum of $1.5 million per state or Indian tribe. EPA will target
funding of at least $1 million per year for tribal response programs to
ensure adequate funding for tribal response programs.
Subject to the availability of funds, EPA regional enforcement and
program staff will be available to provide technical assistance to
states and Indian tribes as they apply for and carry out these grants.
DATES: This action is effective as of November 25, 2002. EPA expects to
make non-competitive grant awards to states and Indian tribes which
apply during fiscal year 2003.
ADDRESSES: Mailing addresses for U.S. EPA Regional Offices and U.S. EPA
Headquarters are provided at http://www.epa.gov/brownfields.
FOR FURTHER INFORMATION CONTACT: The U.S. EPA's Office of Solid Waste
and Emergency Response, Office of Brownfields Cleanup and
Redevelopment, (202) 566-2777.
SUPPLEMENTARY INFORMATION: The Small Business Liability Relief and
Brownfields Revitalization Act (SBLRBRA) was signed into law on January
11, 2002. The Act amends the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA), as amended, by adding section
128(a). Section 128(a) authorizes a $50 million grant program \1\ to
establish and enhance state \2\ and tribal \3\ response programs.
Generally, these response programs address the assessment, cleanup and
redevelopment of brownfields sites and other contaminated sites.
Section 128(a) grants will be awarded and administered by U.S.
Environmental Protection Agency (EPA) regional offices. This document
provides guidance that will enable states and tribes to apply for and
use section 128(a) funds in Fiscal Year 2003.
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\1\ EPA is in the process of developing a Catalogue of Federal
Domestic Assistance entry for the section 128(a) State and Tribal
Response Programs grant program.
\2\ ``The term ``state'' is defined in this document as defined
in CERCLA section 101(27).
\3\ The term ``Indian tribe'' is defined in this document as it
is defined in CERCLA section 101(36). Intertribal consortia, as
defined in the Federal Register notice at 67 FR 67181, are also
eligible for funding under CERCLA 128(a).
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State and tribal response programs oversee cleanup at the majority
of brownfield sites across the country. Many states have programs that
also offer accompanying financial incentive programs to spur cleanup
and redevelopment. In passing section 128(a), Congress recognized the
accomplishments of state response programs in cleaning up and
redeveloping brownfield sites. Section 128(a) also provides EPA with an
opportunity to strengthen its partnership with states and Indian
tribes.
Since 1997, the EPA Brownfields program has been funding state and
tribal response programs including Superfund Core funding for state and
tribal voluntary cleanup programs and pre-remedial site assessment
funding for state- and tribal-conducted Targeted Brownfields
Assessments (TBA). Both activities were financed with Superfund
appropriations and funded under CERCLA section 104(d) cooperative
agreement authority. Through section 128(a), Congress built upon these
activities and provided EPA with expanded authority to fund other
activities that build capacity for state and tribal response programs
as well as authority to grant funds to states and Indian tribes to
capitalize revolving loan funds and support insurance mechanisms. One
goal of this funding is to ensure that state and tribal response
programs include, or are taking reasonable steps to include, certain
elements and another is to provide funding for other activities that
increase the number of response actions conducted or overseen, by a
state or tribal response program. This funding is not intended to
supplant current state or tribal funding for their response programs.
Instead, it is to supplement their funding to increase their cleanup
capacity.
As partners in implementing SBLRBRA, state and tribal officials
have been working closely with EPA since the law's passage in
developing this guidance. It reflects comments made by state and tribal
officials during legislation implementation meetings, including ongoing
State and Tribal Funding Workgroup conference calls, a panel at the
National Tribal Conference on Environmental Management on June 5, 2002,
and EPA listening sessions. In addition, EPA received letters dated
February 21, 2002, from the Association of State and Territorial Solid
Waste Management Officials CERCLA Research Center and another dated May
6, 2002, from the Executive Director of the Tribal Association on Solid
Waste and Emergency Response. These comments were taken into account
when preparing the guidance.
Subject to the availability of funds, EPA regional enforcement and
program staff will be available to provide technical assistance to
states and Indian tribes as they apply for and carry out section 128(a)
grants.
Eligibility for Funding
To be eligible to receive funding under CERCLA section 128(a), a
state or Indian tribe must demonstrate that their response program
includes, or is taking reasonable steps to include, the four elements
of a response program, described below. Congress also recognized the
effectiveness and efficiencies of Memoranda of Agreement (MOAs) by
making states or Indian tribes that are parties to voluntary response
program MOAs \4\ automatically eligible for section 128(a) funding.
Additionally, states and Indian tribes, including those with MOAs, must
maintain and make available to the public a record of sites at which
response actions have been completed in the previous year and are
planned to be addressed in the upcoming year in order to qualify for
section 128(a) funding.
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\4\ The legislative history of SBLRBRA indicates that Congress
intended to encourage states and Indian tribes to enter into MOAs
for their voluntary response programs. Currently the following
states have MOAs for their voluntary response programs: Arkansas,
Colorado, Delaware, Florida, Illinois, Indiana, Kansas, Maryland,
Michigan, Minnesota, Missouri, New Mexico, Ohio, Oklahoma, Rhode
Island, Texas, Virginia, Wisconsin, and Wyoming.
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With the exception of the section 128(a) funds a state or Indian
tribe uses to capitalize a Brownfields Revolving Loan Fund under CERCLA
104(k)(3), states and Indian tribes are not required to provide
matching funds for grants awarded under section 128(a).
Section 128(a) authorizes funding for activities necessary to
establish and enhance the four elements and to meet the public record
requirement.
The Four Elements--Section 128(a)
a. Timely survey and inventory of brownfield sites in the state or
in the tribal land. States and Indian tribes must include, or be taking
reasonable steps to include, in their response programs a system or
process to identify the universe of brownfield sites in their state or
tribal land. EPA's goal in funding activities under this element is to
enable the state or Indian tribe to establish or enhance a system or
process that will provide a reasonable estimate of the number, likely
locations, and the general characteristics of brownfields in their
jurisdictions. Given funding limitations, EPA will negotiate work plans
with states and Indian tribes to achieve this goal efficiently,
effectively and within a realistic time frame. For example, many of
EPA's Brownfields Assessment grantees conduct
[[Page 70596]]
inventories of brownfield sites in their communities or jurisdictions.
States and Indian tribes are encouraged to work with these grantees to
obtain the information that they have gathered and include it in their
survey and inventory.
b. Oversight and enforcement authorities or other mechanisms and
resources. States and Indian tribes must include, or be taking
reasonable steps to include, in their response programs oversight and
enforcement authorities or other mechanisms, and resources that are
adequate to ensure that a response action will protect human health and
the environment and be conducted in accordance with applicable federal
and state law. In addition, states and Indian tribes must include, or
be taking reasonable steps to include, in their response programs
oversight and enforcement authorities or other mechanisms, and
resources that are adequate to ensure that the necessary response
activities are completed if the person conducting the response
activities, including operation and maintenance or long-term monitoring
activities, fails to complete the activity (such as enforcement,
funding, or other programmatic resources, including staff).
c. Mechanisms and resources to provide meaningful opportunities for
public participation.\5\ States and Indian tribes must include, or be
taking reasonable steps to include, in their response programs
mechanisms and resources for public participation, including, as a
minimum:
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\5\ States and Indian tribes establishing this element may find
useful information on public participation on EPA's community
involvement web site at http://www.epa.gov/superfund/action/
community/index.htm.
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[sbull] Public access to documents and related materials that a
state, Indian tribe, or party conducting the cleanup is relying on or
developing in making cleanup decisions or conducting site activities;
[sbull] Prior notice and opportunity for public comment on cleanup
plans and site activity; and
[sbull] A mechanism by which a person who is, or may be, affected
by a release or threatened release of a hazardous substance, pollutant,
or contaminant at a brownfields site--located in the community in which
the person works or resides--may request that a site assessment be
conducted. The appropriate state or tribal official must consider this
request and appropriately respond.
d. Mechanisms for approval of a cleanup plan and verification and
certification that cleanup is complete. States and Indian tribes must
include, or be taking reasonable steps to include, in their response
programs mechanisms to approve cleanup plans. In addition states and
Indian tribes must include, or be taking reasonable steps to include,
in their response programs a requirement for verification by and
certification or similar documentation from the state, the Indian
tribe, or a licensed site professional to the person conducting a
response action indicating that the response action is complete.
Public Record Requirement
States and Indian tribes (including states with MOAs) that receive
funding under section 128(a) must establish a public record system
during the grant funding period unless a public record system that
meets the following requirements is already established. Specifically,
under section 128(b)(1)(C), states and Indian tribes must:
[sbull] Maintain and update, at least annually or more often as
appropriate, a record of sites that includes the name and location of
sites at which response actions have been completed during the previous
year;
[sbull] Maintain and update, at least annually or more often as
appropriate, a record of sites that includes the name and location of
sites at which response actions are planned to be addressed in the next
year; and
[sbull] Identify in the public record whether or not the site, upon
completion of the response action, will be suitable for unrestricted
use. If not, the public record must identify the institutional controls
relied on in the remedy.
Section 128(a) funds may be used to maintain and make available a
public record system that meets these requirements.
It is important to note that the public record requirement differs
from the ``timely survey and inventory'' element described above. The
public record addresses sites at which response actions have been
completed in the previous year and are planned to be addressed in the
upcoming year. In contrast, the ``timely survey and inventory'' element
described above, refers to a general approach to identifying brownfield
sites.
EPA's goal is to enable states and Indian tribes to make the public
record easily accessible. For this reason, EPA will allow states and
Indian tribes to use section 128(a) funding to make information on
sites in their response programs available to the public on the
Internet or other means that ensures that the information is readily
accessible to the public. For example, the Agency will fund state and
tribal efforts to include detailed location information in the public
record such as the street address and latitude and longitude
information for each site.\6\ EPA encourages states and Indian tribes
to maintain public record information, including data on institutional
controls, on a long term basis (more than one year) for sites at which
a response action has been completed. Subject to EPA regional office
approval, states or tribes may include development and operation of
systems that ensure long term maintenance of the public record in their
work plans.\7\
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\6\ For further information on latitude and longitude
information, please see EPA's data standards web site available at
http://oaspub.epa.gov/edr/epastd$.startup.
\7\ States and Indian tribes may find useful information on
institutional controls on EPA's institutional controls web site at
http://www.epa.gov/superfund/action/ic/index.htm.
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Use of Funding
General Uses
Section 128(a)(1)(B) describes the eligible uses of grants funding
by states and Indian tribes. In general, a state or Indian tribe may
use a grant to ``establish or enhance'' their response programs,
including elements of the response program that include activities
related to responses at brownfield sites with petroleum contamination.
States and Indian tribes may use Section 128(a) funding to develop
legislation, regulations, procedures, guidance, etc. that would
establish or enhance the administrative and legal structure of their
response programs. In addition, states and Indian tribes may use grant
funding to:
Capitalize a revolving loan fund (RLF) for brownfields cleanup
under CERCLA section 104(k)(3). These RLFs are subject to the same
statutory requirements and grant terms and conditions applicable to
RLFs awarded under section 104(k)(3). Requirements include a 20%
match on the amount of section 128(a) funds used for the RLF, a
prohibition on using EPA grant funds for administrative costs
relating to the RLF, and a prohibition on using RLF loans or
subgrants for response costs at a site for which the recipient may
be potentially liable under section 107 of CERCLA. Other
prohibitions contained in CERCLA section 104(k)(4) also apply.
Purchasing environmental insurance or developing a risk-sharing
pool, indemnity pool, or insurance mechanism to provide financing
for response actions under a state or tribal response program.
In addition, a state or Indian tribe may use section 128(a) funding
to establish and maintain the required public record described in
section B above. EPA considers activities related to maintaining and
monitoring
[[Page 70597]]
institutional controls to be eligible costs under section 128(a).
Uses Related to Establishing a State or Tribal Response Program
Under CERCLA section 128(a), ``establish'' includes activities
necessary to build the foundation for the four elements of a state or
tribal response program and the public record requirement. For more
developed state or tribal response programs, establish may also include
activities that keep their program at a level that meets the four
elements and maintains a public record required as a condition of
funding under CERCLA section 128(b)(1)(C).
Uses Related to Enhancing a State or Tribal Response Program
Under CERCLA section 128(a), ``enhance'' is related to activities
that add to or improve a state or tribal response program or increase
the number of sites at which response actions are conducted under a
state or tribal response program. The legislative history of the
provision also makes this clear:
The vast majority of contaminated sites across the nation will
not be cleaned up by the Superfund program. Instead, most sites will
be cleaned up under State authority. * * * In recognition of this
fact, and the need to create and improve State cleanup capacity, new
[section 128(a)] provides financial assistance to States and Indian
tribes to establish or enhance voluntary response programs.
Senate Report 107-2, March 12, 2001, p. 15.
The exact ``enhancement'' uses that may be allowable depend upon
the work plan negotiated between the EPA regional office and the state
or Indian tribe. For example, regional offices and states or tribes may
agree that section 128(a) funds may be used for outreach and training
directly related to increasing awareness of its response program, and
improving the skills of program staff. Other ``enhancement'' uses may
be allowable as well.
Uses Related to Site-Specific Activities
States and Indian tribes may use section 128(a) funds for
activities that improve state or tribal capacity to increase the number
of sites at which response actions are conducted under the state or
tribal response program. Eligible uses of funds include site-specific
related activities such as conducting assessments at selected
brownfields sites. Section 128(a) funds cannot be used for assessments
at sites that do not meet the definition of brownfields site at CERCLA
101(39).
Costs incurred for oversight of cleanups at other than brownfields
sites may be eligible and allowable costs if such activities are
included in the state's or Indian tribe's work plan. For example,
auditing of completed site cleanups in states or tribes that use
licensed site professionals to verify that sites have been properly
cleaned up may be an eligible cost under section 128(a). These costs
need not be incurred in connection with a brownfields site to be
eligible, but must be authorized under the state's or Indian tribe's
work plan to be allowable. Other uses may be eligible and allowable as
well, depending upon the work plan negotiated between the EPA regional
office and the state or Indian tribe.
Uses Related to Petroleum Response Programs and Site-Specific
Activities at Petroleum Sites
Many state response programs do not distinguish between sites
contaminated with hazardous substances, contaminants or pollutants and
sites contaminated with petroleum. Therefore, states and Indian tribes
may use section 128(a) funds for activities that establish and enhance
their response programs, even if their response programs address
petroleum contamination. Also, the costs of conducting site assessments
at petroleum contaminated brownfield sites, as defined at CERCLA
section 101(39)(D)(ii)(II), are eligible and are allowable if the
activity is included in the work plan negotiated between the EPA
regional office and the state or Indian tribe. Section 128(a) funds
used to capitalize a Brownfields RLF may be used at brownfields sites
contaminated by petroleum to the extent allowed under CERCLA section
104(k)(3).
Grant Mechanism and Process for Awarding Funding
Funding authorized under CERCLA section 128(a) will be awarded
through a cooperative agreement \8\ with a state or Indian tribe. The
program will be administered under the general EPA grant and
cooperative agreement regulations for states, Indian tribes, and local
governments found in the Code of Federal Regulations at 40 CFR part 31.
Under these regulations, the grantee for section 128(a) grant program
is:
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\8\ A cooperative agreement is a grant to a state or Indian
tribe that includes substantial involvement of EPA during
performance of activities described in cooperative agreement work
plan. Examples of this involvement include technical assistance and
collaboration on program development and site-specific activities.
the government to which a grant is awarded and which is accountable
for the use of the funds provided. The grantee is the entire legal
entity even if only a particular component of the entity is
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designated in the grant award document.
40 CFR 31.3 Grantee.
Subject to the availability of funds, EPA regional offices will
negotiate and enter into new section 128(a) cooperative agreements with
eligible and interested states or Indian tribes. EPA will accept only
one application, and negotiate only one work plan, with each eligible
state or Indian tribe. States and tribes must define the ``section
128(a) response program,'' and may designate a component of the state
or tribe that will be EPA's primary point of contact for negotiations
on their proposed work plan. When EPA funds the section 128(a)
cooperative agreement, states and tribes may distribute these funds
among the appropriate state and tribal agencies that are part of the
section 128(a) response program. This distribution must be clearly
outlined in their annual work plan.
EPA regional offices will determine the project period for each
cooperative agreement. These may be for multiple years depending on the
regional office's grants policies. Each cooperative agreement must have
an annual budget period tied to an annual work plan.
As part of the annual work plan negotiation process, states or
Indian tribes that do not have MOAs must demonstrate that their program
includes, or is taking reasonable steps to include, the four elements
described above. EPA will not fund, in future years, state or tribal
response program annual work plans if EPA determines that these
requirements are not met or reasonable progress is not being made. EPA
may base this determination on the information the state or tribe
provides to support its work plan, or on EPA's review of the state or
tribal response program.
Prior to funding a state's or Indian tribe's annual work plan, EPA
regional offices will verify that a public record as described above
exists, and is being maintained.
Allocation System for Distribution of Funding
EPA regional offices will work with interested states and Indian
tribes to develop their annual work plans and funding requests. For
Fiscal Year 2003, EPA will consider funding requests up to a maximum of
$1.5 million per state or Indian tribe. This limit may be changed in
future years based on appropriation amounts and demand for funding. The
EPA regional offices will forward each of the funding request
[[Page 70598]]
amounts and a short summary of the work plan activities to EPA
Headquarters. EPA Headquarters will compile the requested amounts and
develop the annual allocation based on state and tribal response
program needs described in the work plan summaries.
When EPA Regions negotiate individual state and tribal work plans,
it is anticipated that funding will be prioritized as follows.
1. Funding for program development activities to establish or
enhance the four elements of a state or tribal response program and to
enable states and Indian tribes to comply with the public record
requirement, including activities related to institutional controls.
States with MOA's will not be prejudiced in funding distributions if
their work plan does not include tasks related to establishing or
enhancing the four elements. Similarly, states and Indian tribes that
have established one or more of the four elements will not be
prejudiced in funding distributions if their work plan includes
activities that enhance the four elements.
2. Funding for other program development activities to enhance the
cleanup capacity of a state or tribal response program.
3. Funding for site-specific activities that enhance the cleanup
capacity of a state or tribal response program, including targeted
brownfields site assessments.
4. Funding for environmental insurance mechanisms.
5. Funding to capitalize brownfields cleanup revolving loan funds.
States and Indian tribes must break their work plans down into
these prioritization categories.
EPA will target funding of at least $1 million per year for tribal
response programs. If this funding is not used, it will be carried over
and added to at least $1 million in the next fiscal year. It is
expected that the funding demand from Indian tribes will increase
through the life of this grant program (authorized by Congress through
FY2006), and this funding allocation system should ensure that adequate
funding for tribal response programs is available in future years.
Terms and Reporting
Cooperative agreements for state and tribal response programs will
include programmatic and administrative terms and conditions. These
terms and conditions will describe EPA's substantial involvement
including technical assistance and collaboration on program development
and site-specific activities.
States and Indian tribes will provide progress reports under 40 CFR
31.40, in accordance with terms and conditions of the cooperative
agreement negotiated with EPA regional offices. State and tribal costs
for complying with reporting requirements are an eligible expense under
the section 128(a) grant. As a minimum, state or tribal progress
reports must include both a narrative discussion and performance data
relating to the state's or Indian tribe's accomplishments with section
128(a) funding. If applicable, the state or tribe must include
information on activities related to establishing or enhancing the four
elements of the state's or tribe's response program. All recipients
must provide information relating to establishing and maintaining the
public record.
Depending upon the activities included in the state's or Indian
tribe's work plan, an EPA regional office may request that a progress
report include:
A list of sites at which response actions have been completed
including:
[sbull] Date the response action was completed.
[sbull] Site name.
[sbull] Location of the site (street address and latitude and
longitude).
[sbull] Size of the site in acres.
[sbull] An indication if the site is suitable for unrestricted use
or if institutional controls were relied on in the remedy.
[sbull] Nature of the contamination at the site.
A list of sites currently being addressed by the state or tribal
response program including:
[sbull] Site name.
[sbull] Location of the site (street address and latitude and
longitude).
Data regarding the result of the state's or tribe's mechanism for
verification by, or certification by the state or tribe, or similar
documentation, indicating that the response action is complete. For
example, the state or tribe may provide data regarding cleanup
completion certificates issued and revoked.
If the state or Indian tribe is using section 128(a) funding to
capitalize a revolving loan fund for brownfields cleanup under CERCLA
section 104(k)(3), they must include the information required by the
terms and conditions for progress reporting under CERCLA section
104(k)(3) RLF grants.
If the state or Indian tribe is using section 128(a) funding for
environmental insurance, they must include in their progress report
information on the number of policies purchased, the number of sites
covered, and the amount of money spent.
If the state or Indian tribe is using section 128(a) funding to
conduct brownfields site assessments, they must include in their
progress report a list of sites at which site assessments have been
completed that includes:
[sbull] Site name.
[sbull] Location of the site (street address and latitude and
longitude).
[sbull] Size of the site in acres.
[sbull] Date site assessment was completed.
[sbull] Nature of contamination at the site (e.g., hazardous
substances, contaminants, or pollutants, petroleum contamination, etc.
* * *).
If the state or Indian tribe is using section 128(a) funding to
perform other site-specific related activities (e.g., oversight audits
of licensed site professional certified cleanups, etc. * * *), they
must include a description of the site-specific activities and the
number of sites at which the activity was conducted.
The regional offices may also request other information be added to
the progress reports, as appropriate, to properly document activities
described by the cooperative agreement work plan.
EPA regions may allow states or tribes to provide performance data
in appropriate electronic format.
The regional offices will forward progress reports to EPA
Headquarters, if requested. This information may be used to develop
national reports on the outcomes of CERCLA section 128(a) funding to
states and Indian tribes.
Dated: November 18, 2002.
Linda Garczynski,
Director, Office of Brownfields Cleanup and Redevelopment, Office of
Solid Waste and Emergency Response.
[FR Doc. 02-29886 Filed 11-22-02; 8:45 am]
BILLING CODE 6560-50-P