Presidential Documents. Proposed rule
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/register/2007/09/17/07-4473A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
Billing code 4710-10 72 179 Monday, September 17, 2007 CORRECTIONS Aaron Siegel DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 59 [Docket No. AMS-LS-07-0106; LS-07-01] RIN 0581-AC67 Livestock Mandatory Reporting; Reestablishment and Revision of the Reporting Regulation for Swine, Cattle, Lamb, and Boxed Beef Correction In proposed rule document 07-4405 appearing on page 51378 in the issue of Friday, September 7, 2007, make the following correction: In the second column, in the fourth paragraph, in the seventh and eighth lines, “September 5, 2007” should read “September 24, 2007”. [FR Doc.
C7-4405 Filed 9-14-07; 8:45 am] BILLING CODE 1505-01-D 72 179 Monday, September 17, 2007 Proposed Rules Part II Environmental Protection Agency 40 CFR Part 63 National Emission Standards for Hazardous Air Pollutants: Paint Stripping and Miscellaneous Surface Coating Operations at Area Sources; Proposed Rule ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 63 [EPA-HQ-OAR-2005-0526; FRL-8466-6] RIN 2060-AN21 National Emission Standards for Hazardous Air Pollutants: Paint Stripping and Miscellaneous Surface Coating Operations at Area Sources AGENCY:
Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: In this action, EPA proposes national emission standards for hazardous air pollutants (NESHAP) for area sources engaged in paint stripping and miscellaneous surface coating operations. EPA has listed “Paint Stripping,” “Plastic Parts and Products (Surface Coating),” and “Autobody Refinishing Paint Shops” as area sources of hazardous air pollutants
(HAP)that contribute to the risk to public health in urban areas under the Integrated Urban Air Toxics Strategy. These three source categories are being combined into one set of standards for the purposes of this rulemaking. Paint stripping operations subject to the standards being proposed include the use of methylene chloride-containing chemicals to remove paint and other coatings. Plastic parts and products surface coating operations include the application of coatings to miscellaneous parts and/or products made of metal or plastic, or combinations of metal and plastic. Autobody refinishing includes the application of coating to motor vehicles and mobile equipment. These proposed standards, when final, would require all methylene chloride
(MeCl)containing paint stripping and miscellaneous surface coating operations at area sources to comply with equipment requirements and/or management practices that minimize specific HAP emissions. The standards would also establish training requirements for persons who spray apply coatings. These standards, when final, would apply to all area sources that perform methylene chloride-containing paint stripping and miscellaneous surface coating activities, except when other NESHAP apply. DATES: *Comments.* Comments must be received on or before October 17, 2007. Under the Paperwork Reduction Act, comments on the information collection provisions must be received by the Office of Management and Budget
(OMB)on or before October 17, 2007. *Public Hearing:* If anyone contacts EPA requesting to speak at a public hearing concerning the proposed rule by September 27, 2007, we will hold a public hearing on October 2, 2007. ADDRESSES: *Comments.* Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2005-0526, by one of the following methods. *www.regulations.gov* . Follow the on-line instructions for submitting comments. *E-mail:* *a-and-r-docket@epa.gov.* *Fax:* 202-566-1741. *Mail:* Air and Radiation Docket, Environmental Protection Agency, Mailcode 6102T, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. Please include a total of two copies. We request that a separate copy also be sent to the contact person identified below see FOR FURTHER INFORMATION CONTACT . In addition, please mail a copy of your comments on the information collection provisions to the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Attn: Desk Officer for EPA, 725 17th St., NW., Washington, DC 20503. *Hand Delivery:* Deliver your comments to: EPA Docket Center (EPA/DC), EPA West Building, Room B-108, 1301 Constitution Avenue, NW., Washington, DC 20014. Such deliveries are accepted only during the Docket's normal hours of operation and special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-HQ-OAR-2005-0526. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *www.regulations.gov* , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *www.regulations.gov* or e-mail. The *www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *www.regulations.gov* , your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment with a disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. Commenters wishing to submit proprietary information for consideration must clearly distinguish such information from other comments and clearly label it as CBI. Do not send proprietary information to the public docket to ensure that it is not inadvertently placed in the docket. Instead, send proprietary information directly to the following address: Attention: Mr. Roberto Morales, U.S. Environmental Protection Agency, OAQPS Document Control Officer, 109 T.W. Alexander Drive, Room C404-02, Research Triangle Park, NC 27711. EPA will disclose information identified as CBI only to the extent allowed by the procedures set forth in 40 CFR part 2. If no claim of confidentiality accompanies a submission when it is received by EPA, the information may be made available to the public without further notice to the commenter. *Docket.* All documents in the docket are listed in the *www.regulations.gov* index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in *www.regulations.gov* or in hard copy at the Air and Radiation Docket, EPA/DC, EPA West, Room B102, 1301 Constitution Avenue, 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 for the Air and Radiation Docket is
(202)566-1742. *Public Hearing:* If you are interested in attending the public hearing, contact Ms. Dorothy Apple at
(919)541-4487 to verify that a hearing will be held. If a public hearing is held, it will be held at 10 a.m. at EPA's Campus located at 109 T.W. Alexander Drive in Research Triangle Park, NC, or an alternate site nearby. FOR FURTHER INFORMATION CONTACT: For information concerning the proposed standards, contact Mr. Warren Johnson, Office of Air Quality Planning and Standards, Sector Policies and Programs Division, Natural Resources and Commerce Group (E143-03), U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711, telephone
(919)541-5124, or e-mail at *johnson.warren@epa.gov.* For technical information concerning the proposed surface coating standards, contact Ms. Kim Teal, Office of Air Quality Planning and Standards, Sector Policies and Programs Division, Natural Resources and Commerce Group (E143-03), U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711, telephone
(919)541-5580, or e-mail at *teal.kim@epa.gov.* SUPPLEMENTARY INFORMATION: I. General Information A. How is this document organized? The information presented in this preamble is organized as follows: I. General Information A. How is this document organized? B. Does this action apply to me? C. What should I consider as I prepare my comments to EPA? II. Background Information for Proposed Area Source Standards A. What is the regulatory development background for the proposed standards for paint stripping and miscellaneous surface coating operations? B. Where in the Code of Federal Regulations
(CFR)will these standards be codified? C. What criteria are used in the development of these NESHAP? D. What are the sources of emissions and the HAP for which these area source categories were listed? E. What are the health effects associated with the pollutants emitted by paint stripping and miscellaneous surface coating operations? F. How has EPA regulated major sources in the same industrial sectors (similar sources) and what has EPA learned about available control technologies and management practices from regulating these major sources? III. Proposed NESHAP for Paint Stripping and Miscellaneous Coating Operations at Area Sources A. What are the affected area sources? B. What are the HAP and primary sources of emissions for which these source categories were listed? C. Do the proposed standards apply to my source? D. What emissions control requirements is EPA proposing? E. What are the initial compliance requirements? F. What are the continuous compliance requirements? G. What are the notification, recordkeeping, and reporting requirements? IV. Rationale for Selecting the Proposed Standards A. What area source categories are affected by this proposal? B. How did we select the affected source? C. How did we determine the basis and level of the proposed standards for new and existing sources? D. How did we select the format of the proposed standards? E. How did we select the initial compliance and testing requirements? F. How did we select the continuous compliance requirements? G. How did we select the compliance date? H. How did we decide to exempt these area source categories from the CAA title V permit requirements? V. Impacts of the Proposed Standards A. What are the air impacts? B. What are the cost impacts? C. What are the economic impacts? D. What are the non-air health, environmental, and energy impacts? VI. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review B. Paperwork 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 Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations B. Does this action apply to me? Categories and entities potentially affected by the proposed rule are MeCl—containing paint stripping operations and miscellaneous surface coating operations located at area sources. An area source is defined in CAA section 112(a) as any stationary source of HAP that is not a major source, and a major source is defined as any stationary source or group of stationary sources located within a contiguous area and under common control that emits, or has the potential to emit, considering controls, in the aggregate, 10 tons per year
(tpy)of any single HAP or 25 tpy of any combination of HAP. For the purposes of this proposal, paint stripping operations are those that involve the use of MeCl for the partial or complete removal of surface coatings from wood, metal or plastic substrates at area sources as either
(1)an independent activity where paint stripping is the principle activity at the source or
(2)an activity incidental to the principle activity (e.g., surface coating, inspection, maintenance, etc.) at the source. We consider paint stripping activities that use less than 150 gallons per year to be incidental to the principle activity and those using 150 gallons or more to be performing paint stripping as a principle activity. Miscellaneous surface coating operations are those that involve the application of coatings at area sources to
(1)miscellaneous parts and/or products made of metal or plastic, or combinations of metal and plastic; or
(2)motor vehicles and mobile equipment (e.g., heavy duty-trucks, buses, construction equipment, self-propelled vehicles and equipment that may be drawn and/or driven on a roadway), hereinafter referred to as autobody refinishing. In general, the facilities and entities potentially affected by the proposed rule are covered under the North American Industrial Classification System (NAICS) Codes listed in the following table. However, facilities classified under other NAICS codes may be subject to the proposed standards if they meet the applicability criteria. Category NAICS Examples of potentially regulated entities Aerospace Equipment 336413 336414 336415 54171 Aircraft engines, aircraft parts, aerospace ground equipment. Automobiles and Automobile Parts 335312 336111 336211 336312 33632 33633 33634 33637 336399 441110 441120 811121 Engine parts, vehicle parts and accessories, brakes, axles, etc. Motor vehicle body manufacturing and automobile assembly plants. New and used car dealers. Automotive body, paint, and interior repair and maintenance. Chemical Manufacturing and Product Preparation 325110 325120 325131 325188 325192 325193 325199 325998 Petrochemicals, Industrial Gases, Inorganic Dyes and Pigments, Basic Inorganic and Organic Chemicals, Cyclic Crude and Intermediates, Ethyl Alcohol, Miscellaneous Chemical Production and Preparation. Extruded Aluminum 331316 331524 332321 332323 Extruded aluminum, architectural components, coils, rod, and tubes. Government N/A Government entities, besides Department of Defense, that maintain vehicles, such as school buses, police and emergency vehicles, transit buses, or highway maintenance vehicles. Heavy Equipment 33312 333611 333618 Tractors, earth moving machinery. Job Shops 332312 332722 332813 332991 332999 334119 336413 339999 Manufacturing industries not elsewhere classified (e.g., bezels, consoles, panels, lenses). Large Trucks and Buses 33612 336211 Large trucks and buses. Metal Buildings 332311 Prefabricated metal buildings, carports, docks, dwellings, greenhouses, panels for buildings. Metal Containers 33242 81131 322214 331513 332439 Drums, kegs, pails, shipping containers. Metal Pipe and Foundry 331111 331513 33121 331221 331511 Plate, tube, rods, nails, etc. Rail Transportation 33651 336611 482111 Brakes, engines, freight cars, locomotives. Recreational Vehicles and Other Transportation Equipment 321991 3369 331316 336991 336211 336112 336212 336213 336214 336399 336999 33635 56121 8111 56211 Mobile Homes. Motorcycles, motor homes, semi trailers, truck trailers. Miscellaneous transportation related equipment and parts. Travel trailer and camper manufacturing. Rubber-to-Metal Products 326291 326299 Engine mounts, rubberized tank tread, harmonic balancers. Structural Steel 332311 332312 Joists, railway bridge sections, highway bridge sections. Waste Treatment, Disposal, and Materials Recovery 562211 562212 562213 562219 562920 Hazardous Waste Treatment and Disposal, Solid Waste Landfill, Solid Waste Combustors and Incinerators, Other Nonhazardous Waste Treatment and Disposal, Materials Recovery. Other Industrial and Commercial 211112 Natural Gas Liquid Extraction. 311942 Spices and Extracts. 331311 Alumina Refining. 337214 811420 Office furniture, except wood. Reupholstery and Furniture Repair. 325211 Plastics Material Synthetic Resins, and Nonvulcanizable Elastomers. 325510 Paint and Coating Manufacturing. 32614, 32615 Plastic foam products (e.g., pool floats, wrestling mats, life jackets). 326199 Plastic products not elsewhere classified (e.g., name plates, coin holders, storage boxes, license plate housings, cosmetic caps, cup holders). 333313 Office machines. 33422 Radio and television broadcasting and communications equipment (e.g., cellular telephones). 339111, 339112 Medical equipment and supplies. 33992 Sporting and athletic goods. 33995 Signs and advertising specialties. 336612 Boat building. 713930 Marinas, including boat repair yards. This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by the proposed rule. Many types of entities that perform stripping and/or coating that are not listed in this table would be potentially affected by the proposed rule. To determine whether your facility, company, business, organization, etc., is subject to this action, you should examine the applicability criteria in section 63.11170 of the proposed rule. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section. C. What should I consider as I prepare my comments to EPA? Do not submit information containing CBI to EPA through *www.regulations.gov,* or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. When submitting comments, remember to: 1. Identify the rulemaking by docket number and other identifying information (e.g., subject heading, **Federal Register** proposal publication date and reference page number(s)). 2. Follow directions—EPA may ask you to respond to specific questions. 3. Explain why you agree or disagree; suggest alternatives and provide substitute language for your requested changes. 4. Describe any assumptions and provide any technical information and/or data that you used. 5. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. 6. Provide specific examples to illustrate your concerns, and suggest alternatives. 7. Explain your views as clearly as possible, avoiding the use of profanity or personal threats. 8. Make sure to submit your comments by the specified comment period deadline. II. Background Information for Proposed Area Source Standards A. What is the regulatory development background for the proposed standards for paint stripping and miscellaneous surface coating operations? Section 112 of the Clean Air Act
(CAA)requires EPA to develop NESHAP for both major and area sources that are listed for regulation under CAA section 112(c). As stated earlier, a major source is defined in CAA section 112(a) as any stationary source or group of stationary sources located within a contiguous area and under common control that emits, or has the potential to emit, considering controls, in the aggregate, 10 tons per year
(tpy)of any single HAP or 25 tpy of any combination of HAP. An area source is any stationary source that is not a major source. Thus, area sources are those sources of HAP that do not emit nor have the potential to emit HAP at or above the 10 or 25 tpy thresholds. CAA section 112(k)(3)(B) requires EPA to develop a list of at least 30 HAP which, as a result of area source emissions, pose the greatest threat to public health in the largest number of urban areas. We refer to these HAP as the “urban HAP.” Section 112(c)(3) of the CAA directs EPA to identify source categories or subcategories of area sources that represent 90 percent of the emissions of the urban HAP. On July 19, 1999, EPA published its Integrated Urban Air Toxics Strategy, which included both the list of urban HAP and the initial list of area source categories (64 FR 38706). The initial list of area source categories included “Paint Stripping Operations”. On June 26, 2002 and November 22, 2002, EPA added “Autobody Refinishing Paint Shops (67 FR 43112)” and “Plastic Parts and Products (Surface Coating) (67 FR 70427)”, respectively, to the list of area source categories. A primary goal of the Integrated Urban Air Toxics Strategy is to achieve a 75 percent reduction in cancer incidence attributable to HAP emitted from stationary sources in urban areas. Sierra Club sued EPA, alleging a failure to complete standards for the area source categories listed pursuant to CAA section 112(c)(3)and (k)(3)(B) within the timeframe specified by the statute. See *Sierra Club* v. *Johnson,* No. 01-1537, (D.D.C.). On March 31, 2006, the court issued an order requiring EPA to promulgate standards under CAA section 112(d) for those area source categories listed pursuant to CAA section 112(c)(3) and (k)(3)(B). Among other things, the order requires that, by December 15, 2007, EPA complete standards for certain area source categories. In this action, EPA is proposing standards for the following area source categories: Paint stripping, plastic parts and products (surface coating), and autobody refinishing. In developing this proposed rule, we fully analyzed these three listed source categories and found that it is both reasonable and technically feasible to regulate emissions from these three source categories by a single set of emission standards. The processes, emission points, emission characteristics, and emission controls for plastic parts and products surface coating and autobody refinishing are very similar. Additionally, paint stripping is often performed as part of the surface preparation for both plastic parts and autobody refinishing which, by regulating within the scope of a single set of standards, reduces the burden of complying with multiple standards on the sources performing both the paint stripping and subsequent coating. This single set of emission standards that addresses all three categories also minimizes the cost of developing, permitting, and enforcing the standards. For purposes of this preamble and proposed rule, the term “paint stripping and miscellaneous surface coating” is used to indicate that the three area source categories of paint stripping, plastic parts and products (surface coating), and autobody refinishing have been treated as a single source category for purposes of developing this rule. Early in the development of standards to implement EPA's Integrated Urban Strategy, the States expressed concern over the burden and resources that would be required for the States to take delegation for the implementation of the area source rules listed as part of the strategy. Specifically, States were concerned that implementing Federal requirements, in lieu of established State programs, would be overly burdensome with little or no additional emission reductions for certain source categories. In these discussions, the States acknowledged the provisions in CAA section 112(l) as a route for providing them this reduction of burden and flexibility in accepting delegation of some of the area source standards. Guidance on the provisions of CAA section 112(l) are presented in 40 CFR 63 Subpart E which provides certain administrative (i.e., monitoring, recordkeeping, and reporting) criteria for an alternative program to be considered equivalent. This guidance provides States with information regarding the necessary components for their program to be considered equivalent. EPA believes some States may have programs that address the emissions from the surface coating of motor vehicles and mobile equipment that are at least as effective as the proposed standards and encourages States to consider utilizing these provisions in lieu of implementing the proposed standards. The EPA is seeking comment on
(1)whether or not the States are interested in utilizing the Section 112(l) alternative program approach, and
(2)what technical assistance the States may need to develop equivalency determinations. B. Where in the Code of Federal Regulations
(CFR)will these standards be codified? The CFR is a codification of the general and permanent rules published in the **Federal Register** by the Executive departments and agencies of the Federal Government. The code is divided into 50 titles that represent broad areas subject to Federal Regulation. When final, these proposed standards will be published in Title 40, Protection of the Environment, part 63, subpart HHHHHH: National Emission Standards for Hazardous Air Pollutants: Paint Stripping and Miscellaneous Surface Coating Operations. C. What criteria are used in the development of these NESHAP? CAA section 112(d)(5) authorizes EPA to issue alternative emission standards for area sources in lieu of the authorities provided in CAA sections 112(d)(2) and 112(f). Specifically, section 112(d)(5), which is entitled “Alternative Standard for Area Sources,” provides: With respect only to categories and subcategories of area sources listed pursuant to subsection
(c)of this section, the Administrator may, in lieu of the authorities provided in paragraph
(2)and subsection
(f)of this section, elect to promulgate standards or requirements applicable to sources in such categories or subcategories which provide for the use of generally available control technologies or management practices by such sources to reduce emissions of hazardous air pollutants. Thus, CAA section 112(d)(5) authorizes EPA to promulgate standards under section 112(d)(5) that provide for the use of generally available control technologies or management practices (GACT), instead of issuing maximum achievable control technology
(MACT)standards pursuant to CAA section 112(d)(2) and (d)(3). The statute does not set any condition precedent for issuing standards under CAA section 112(d)(5) other than that the area source category or subcategory at issue must be one that EPA listed pursuant to CAA section 112(c)(3), which is the case in this proposal. When setting a GACT standard for an area source category as opposed to a MACT standard, EPA must ensure that the GACT standard is consistent with the requirements of CAA section 112(d)(5) and have a reasonable basis for its GACT determination. Thus, in developing standards for area sources of HAP emissions, EPA evaluates the control technologies and management practices that reduce HAP emissions that are generally available for each area source category, and, in determining GACT, may establish standards on either (or both) generally available control technologies or
(and)management practices that reduce the emission of HAP. EPA's analysis supporting the proposed GACT requirements is discussed in detail in section IV of this preamble. D. What are the sources of emissions and the HAP for which these area source categories were listed? EPA listed the area source paint stripping category pursuant to CAA section 112(c)(3) based on emissions of MeCl contained in paint stripper formulations. The emissions of MeCl comes from evaporative losses during the use or storage of MeCl. EPA listed the area source miscellaneous coating operations category pursuant to section 112(c)(3) based on emissions of cadmium, chromium, lead compounds (lead), manganese and nickel compounds that are in the coatings, as part of the pigment in topcoats or for the corrosion protection in primers. For purposes of this proposal we will refer to these HAP as the “target HAP.” The anticipated national impacts of these proposed standards is summarized in section V of this preamble. E. What are the health effects associated with the pollutants emitted by paint stripping and miscellaneous surface coating operations? Emissions data collected in the development of this proposed rule shows that HAP emitted from paint stripping and miscellaneous surface coating operations are associated with a variety of adverse health effects. These adverse health effects include chronic health disorders (e.g., central nervous system effects, blood disorders, cancer) and acute health disorders (e.g., irritation of eyes, nose and throat, with long-term impairment of lung function possible at high acute exposures). The proposed rule protects air quality and promotes the public health by reducing the emissions of the HAP for which the three source categories at issue in this proposed rule were listed. F. How has EPA regulated major sources in the same industrial sectors (similar sources) and what has EPA learned about available control technologies and management practices from regulating these major sources? Major sources performing paint stripping and surface coating of miscellaneous parts and/or products made of metal or plastic, or combinations of metal and plastic; or motor vehicles and mobile equipment (e.g., heavy duty-trucks, buses, construction equipment, self-propelled vehicles and equipment that may be drawn and/or driven on a roadway), were addressed in different surface coating NESHAP requiring MACT level of control, of which the last NESHAP was promulgated in 2004. Major sources must currently be in compliance with those surface coating NESHAP. Paint stripping was a separately listed major source category under CAA section 112 (c)(1), however, during the data gathering phase EPA determined that there were no major source paint stripping operations conducted independent of surface coating. Therefore, all paint stripping operations were covered in each surface coating NESHAP, as part of the cleaning material used for surface preparation activities. Each NESHAP assumed that the initial emission control technology would be reduction of the usage of HAP cleaners or implementation of management practices to reduce the evaporative losses from these cleaning activities. The data gathering for the major source categories revealed that when the coatings are spray-applied, it was common practice to perform application of the coatings within the confines of a spray booth to minimize worker exposure. This limited the dispersion of the HAP to the parts being coated as solids in the dry coating film, deposition onto the walls, floor, and grates of the spray booths in which they are applied, or some of the HAP particles would be entrained in the spray booth exhaust air. We have learned, as part of the data gathering phase of this area source proposal that although most, if not all, sources are spray applying these coatings in a spray booth, not all of the spray booths are capable of capturing and controlling the target HAP (the HAP for which the area source categories at issue here were listed pursuant to CAA section 112(c)(3). III. Proposed NESHAP for Paint Stripping and Miscellaneous Coating Operations at Area Sources A. What are the affected area sources? The sources that would be affected by the proposed standards are area sources engaged in paint stripping using MeCl, and/or engaged in coating of miscellaneous parts and/or products made of metal or plastic, or combinations of metal and plastic, or autobody refinishing. The proposed standards would not apply to any of these operations that are specifically covered under another area source NESHAP (e.g., the NESHAP for Defense Land Systems and Miscellaneous Equipment currently under development). While these sources are not currently listed pursuant to CAA section 112(c)(3) or 112(k)(3)(b), we intend to list them under these provisions of the act. B. What are the HAP and primary sources of emissions for which these source categories were listed? Paint Stripping Operations The primary source of emissions from paint stripping operations and the HAP for which this source category was listed pursuant to CAA section 112(c)(3) (the “target HAP”) is the MeCl contained in paint stripper formulations. The primary source of the MeCl emissions in this source category comes from evaporative losses during the use or storage of MeCl. Miscellaneous Coating Operations The primary sources of emissions from miscellaneous coating operations are the metal pigments that are in the coatings and/or refinish material. The target HAP for which these source categories were listed are the heavy metals including cadmium, chromium, lead, manganese and nickel compounds. The primary source of emissions of these HAP are the spray application of the coatings and curing process. The heavy metals are contained primarily in the coatings (e.g., primers and the pigments in topcoats) and include compounds of lead (Pb), trivalent chromium (Cr-III), or hexavalent chromium (Cr-VI), plus compounds of other metals that are considered HAP, such as cadmium, manganese, and nickel. The metal HAP compounds are emitted as the coatings are atomized during spray application. A substantial fraction of coating that is atomized does not reach the part and becomes what is termed “overspray.” The fraction that becomes overspray depends on many variables, but two of the most important are the type of equipment and the skill of the painter. Some overspray lands on surfaces of the spray booth and the masking paper that is usually placed around the surface being sprayed, but the rest of the overspray is drawn into the spray booth exhaust system. If the spray booth has filters, most of the overspray is captured by the filters; otherwise, it is exhausted to the atmosphere. After coating application, the spray gun must be cleaned to remove the remaining coating before it cures and to prepare it for the next coating job. Solvents used for equipment cleaning may contain the same HAP as the coatings they remove. Spray guns are usually cleaned in a device, commonly referred to as an enclosed spray gun washer, that consists of a solvent reservoir and a covered enclosure that dispenses solvent for gun cleaning. The enclosure may hold the gun for automated gun cleaning. During gun cleaning, HAP from the cleaning solvent and the coating may be emitted as the cleaning solvent is sprayed through the gun during cleaning from the equipment that stores and dispenses the cleaning solvent while it is opened. C. Do the proposed standards apply to my source? The area source requirements specified in the proposed rule would apply to your source if your source (or facility) is an area source that performs
(1)paint stripping using MeCl-containing chemicals or
(2)surface coating using spray equipment. The area source requirements specified in the proposed rule would not apply if your paint stripping or surface coating operations meet any of the following: • Paint stripping or surface coating performed on-site at installations owned or operated by the Armed Forces of the United States (including the Coast Guard and the National Guard of any such State), or the National Aeronautics and Space Administration because these activities will be subject to the area source NESHAP for military operations which is in development. • Paint stripping or surface coating of military munitions manufactured by or for the Armed Forces of the United States (including the Coast Guard and the National Guard of any such State) or equipment directly and exclusively used for the purposes of transporting munitions manufactured by or for the Armed Forces of the United States (including the Coast Guard and the National Guard of any such State) because these activities will be subject to the area source NESHAP for military operations which is in development. D. What emissions control requirements is EPA proposing? This section describes the proposed emissions control requirements for paint stripping and miscellaneous coating operations. The basis for these proposed requirements is discussed in section IV, below. Paint Stripping Operations All sources conducting paint stripping involving the use of MeCl must implement management practice standards that reduce emissions of MeCl by minimizing evaporative losses of MeCl. In addition to the management practices, sources that use 150 gal or more of paint stripper containing MeCl, per year would need to develop and implement a MeCl minimization plan consisting of a written plan with the criteria to evaluate the necessity of MeCl in the stripping operations and management techniques to minimize MeCl emissions when it is needed in the paint stripping operation. The MeCl minimization plan evaluation criteria would involve only using a MeCl-containing paint stripper when an alternative on-site stripping method or material is incapable of accomplishing the work as determined by the operator. Alternative methods to reduce MeCl usage may include:
(1)Non-MeCl-containing chemical strippers;
(2)mechanical stripping;
(3)blasting (including dry or wet media); or
(4)thermal and cryogenic decomposition. The management practices that would be required to be contained in the plan include optimizing stripper application conditions, reducing exposure of stripper to the air, and practicing proper storage and disposal of materials containing MeCl. Sources would be required to submit the plan either to EPA or to the delegated state permit authority, keep a written copy of the plan on site and post a placard or sign outlining the evaluation criteria and management techniques in each area where MeCl-containing paint stripping operations occur. Miscellaneous Coating Operations All sources conducting surface coating operations involving spray-applied coatings would need to apply the coatings with a high volume, low pressure
(HVLP)spray gun, electrostatic spray gun, or a gun demonstrated to be equal in transfer efficiency to an HVLP spray gun. All spray-applied coatings would need to be applied in a prep station or spray booth, with a full roof and at least three complete walls or complete side curtains, ventilated so that air is drawn into the booth. The exhaust from the prep station or spray booth would need to be fitted with fiberglass or polyester fiber filters or some other filter technology demonstrated to achieve at least 98 percent capture efficiency of paint overspray. As explained further below, we are proposing that the combination of these technologies are GACT for the miscellaneous surface coating operations. Additionally, sources would be required to comply with the management practices by demonstrating that
(1)all painters that spray-apply coatings are certified and
(2)that all spray gun cleaning performed by spraying HAP solvent through the gun is performed in an enclosed spray gun cleaner or by cleaning the disassembled gun parts by hand (i.e., spraying HAP solvent through a gun outside of a gun cleaner would be prohibited). The painter would need to be certified as having completed classroom and hands-on training in the proper selection, mixing, and application of coatings. Refresher training would need to be repeated at least once every 5 years. The initial and refresher training would need to address the following topics: • Surface preparation (prep). • Spray gun set up and operation and spray technique for different types of coatings to improve transfer efficiency and minimize coating usage and overspray. • Routine spray booth and filter maintenance. • Paint mixing, matching, and applying. • Resolving paint application problems. • Finish defects causes and cures. • Safety precautions. • Environmental compliance. E. What are the initial compliance requirements? If your facility is a new source (one that began construction or reconstruction after the date this rule is proposed) and you use MeCl in your paint stripping operations or you spray apply coatings, you would be required to comply with all of the requirements established in this subpart as of the date of promulgation of the final rule or upon startup, whichever is later. If your facility is an existing source (one that began construction or reconstruction before the date this rule is proposed), you would be required to comply with the requirements no later than 2 years after the date the final rule is published. In addition, each painter would need to comply with the training requirements of the rule no later than 60 days after hiring. Painters would be allowed to use training that was completed within 5 years prior to the date training is required to meet this requirement. All painters would need to receive refresher training and be re-certified every 5 years. To demonstrate initial compliance for paint stripping operations, you would need to: • Certify that you have implemented a best management practices plan, and • If you are a source that uses 150 gal or more of paint stripper containing MeCl, per year, certify that you have developed and implemented a MeCl minimization plan consisting of a written plan with the criteria to evaluate the necessity of MeCl in the stripping operations and management techniques to minimize MeCl emissions when it is needed in the paint stripping operation. To demonstrate initial compliance for miscellaneous surface coating operations, you would need to: • Certify that all coatings are sprayed in booths or prep stations that are fitted with filters. • Certify that all spray guns are HVLP or an equivalent. • Certify that all painters that apply coatings using a spray gun have completed the training described in section III.D. of this preamble. • Certify that all gun cleaning is performed in enclosed gun cleaners or by hand. After the compliance date for your source, you would have 120 days if you are a new source, and 30 days if you are an existing source, to submit a notification of compliance status to the EPA or a delegated State or local air pollution control agency. You would also be required to submit an initial notification to the EPA or the delegated agency that you are subject to the standard. You would have 120 days after startup or publication of the final rule (whichever is later) to submit the initial notification if you are a new source. If you are an existing source, you would have 1 year after publication of the final rule to submit the initial notification. If your facility is an existing source, you would be required to comply with the requirements no later than 2 years after the date the final rule is published. In addition, each painter would need to comply with the training requirements of the rule no later than 60 days after hiring. Painters would be allowed to use training that was completed within 5 years prior to the date training is required to meet this requirement. All painters would need to receive refresher training and be re-certified every 5 years. F. What are the continuous compliance requirements? To demonstrate continuous compliance, you would need to continually maintain the emission control requirements (i.e., management practices and equipment requirements) that are described in section III.D. of this preamble. G. What are the notification, recordkeeping, and reporting requirements? You would be required to submit an initial notification to the EPA or the delegated agency that you are subject to the standard. If you are a new source, you would have 120 days after startup or publication of the final rule (whichever is later) to submit the initial notification. If you are an existing source, you would have 1 year after publication of the final rule to submit the initial notification. After the compliance date for your source, you would have 120 days if you are a new source and 30 days if you are an existing source to submit a notification of compliance status to the EPA or a delegated State or local air pollution control agency. Paint Stripping Operations For paint stripping operations, you would need to maintain records demonstrating the following: • Annual usage of MeCl in paint strippers is below 150 gallons (if you are a source qualifying for the best management practices, only); or • You have complied with the MeCl minimization plan. If you are required to have a MeCl minimization plan, you would also be required to submit annual compliance reports in which you certify that the source is in compliance, or report the date, duration, and description of any deviations from the MeCl minimization plan that occurred and the corrective actions taken. Miscellaneous Coating Operations For miscellaneous coating operations, you would need to maintain records demonstrating the following: • All spray painters are trained and certified; • Any spray booth filters or particulate controls that are not fiberglass or polyester fiber filters achieve at least 98 percent efficiency; and • Any spray guns that do not meet the definition of HVLP or electrostatic spray gun have been demonstrated to achieve comparable transfer efficiency. • Spray gun cleaning is being performed manually or in an enclosed gun cleaner when solvent is being atomized through the gun as part of the cleaning process. You would also be required to submit annual compliance reports in which you certify that the source is in compliance, or report the date, duration, and description of any deviations from the specified control requirements that occurred and the corrective actions taken. IV. Rationale for Selecting the Proposed Standards A. What area source categories are affected by this proposal? As discussed above, this rulemaking covers facilities engaged in MeCl paint stripping and spray applied surface coating of parts and/or products made of metal or plastic, or combinations of metal and plastic; and refinishing of motor vehicles and mobile equipment which are a source of emissions of MeCl, cadmium, chromium, lead, manganese and nickel compounds which are the target HAP described above. B. How did we select the affected source? In selecting the affected source for emission standards, our primary goal is to ensure that all emission points responsible for the emissions of the target HAP (i.e., MeCl & the heavy metals) in each listed source category are controlled as specified in CAA section 112(d)(5), described previously in Section II.C. The affected source also serves to establish when new source standards should be applied. Specifically, the General Provisions in subpart A of 40 CFR part 63 define the terms “construction” and “reconstruction” with reference to the term “affected source” (40 CFR part 63.2) and provide that new source standards apply when construction or reconstruction of an affected source occurs. The affected source for this proposed rule is broadly defined to include all operations associated with the removal of paint from a substrate using MeCl and the spray application of coatings. These operations include the use of MeCl-containing paint strippers by immersion, brushing on, and/or spraying on to remove a coating to change the color of the item or because the life of the coating has been exceeded, or to remove paint for inspection purposes or during repair; storage and mixing of coatings and other materials; surface preparation; coating application and flash-off; drying and curing of applied coatings; cleaning operations; and waste handling operations. Each of the equipment items subject to regulation (e.g., containers of paint or stripper, spray booths, spray guns, gun cleaners) is either a relatively low cost item, or could be easily moved about inside a paint stripping and miscellaneous surface coating operation, hence, for this proposal, a broad definition of affected source that encompasses the entire paint stripping and miscellaneous surface coating operation was selected. This approach would subject the entire operation to the same compliance date. Had we proposed a narrow definition for an affected source, replacement or purchase of a single item could cause that item to be considered a new source, resulting in different compliance dates and additional reporting. Furthermore, for the most part, new and existing affected sources are subject to the same emission standards, so the same environmental benefit will be realized regardless of whether the source is considered new or existing. Defining the affected source narrowly could result in a paint stripping or miscellaneous surface coating operation having several affected sources that could be subject to different compliance dates, but the same standards, imposing additional burdens on the source without any environmental benefit. C. How did we determine the basis and level of the proposed standards for new and existing sources? As previously stated above, CAA section 112(d)(5) authorizes EPA to establish emission standards for area sources that provide for the use of generally available control technologies or management practices that reduce emissions of HAP (GACT). Determining what constitutes GACT involves considering the control technologies and management practices that are generally available to the area sources in the source category. We also consider the standards applicable to major sources in the same industrial sector to determine if the control technologies and management practices are transferable and generally available to area sources. In appropriate circumstances, we may also consider technologies and practices at area and major sources in similar categories to determine whether such technologies and practices could be considered generally available for the area source category at issue. Finally, as noted above, in determining GACT for a particular area source category, we consider the costs and economic impacts of available control technologies and management practices on that category. We began the rule development process by identifying other standards developed for these specific processes. As discussed in section II.E., above, we evaluated the emission control technology at major sources for the types of operations found in these area source categories to determine whether or not they were reasonable, feasible, and cost-effective for the area sources. Based on the findings of the major source NESHAP data gathering, the technology considered to be appropriate for the target HAP, and the availability of the technology, we considered whether or not these same emission controls were technically feasible and generally available for the area source categories. Next, we met with industry associations and discussed their current processes and the feasibility of adopting the emission control technology specified as appropriate for the major sources. We learned that, in fact, similar technology (i.e., spray booths, painter training, HVLP guns, enclosed gun cleaners, and management practices to reduce HAP usage) were already being employed at many of the area sources. Therefore, it was determined that, given the availability and cost-effectiveness of these emission control technologies, they represent GACT for the targeted HAP from each source category (i.e., paint stripping, autobody refinishing, and plastic parts surface coating). As previously stated, the target HAP emissions for which these source categories were listed are MeCl from paint stripping operations and cadmium, chromium, lead, manganese and nickel compounds from the coatings operations. The resulting proposed GACT standards are a combination of technology and management practices that control the target HAP, and have a co-benefit of reducing other associated emissions 1 from these operations. The co-benefit is realized due to the fact that the same technology applied to control the target HAP emissions are also the best techniques for reducing some other emissions associated with these operations. 1 The baseline emissions from the surface coating operations are estimated to be about 38,000 tpy of HAP, including 12.4 tpy of inorganic HAP (e.g.; Pb and Cr-VI compounds), 123,500 tpy of criteria pollutants including 3,100 tpy of particulate matter
(PM)from paint overspray and 120,400 tpy of volatile organic compounds
(VOC)from coating and solvent evaporation. In the development of these proposed emission standards, EPA visited numerous paint stripping and coating operations, collected data from various databases, and compiled information received during previous data collection activities. We also met with facility owners and other representatives of these industries. These site visits, data review and contacts with industry provided the technical basis for the proposed standards and are included in the public docket for this rulemaking. Paint Stripping MeCl is the most common solvent and the target HAP for this source category. Since MeCl is the target HAP, our analysis in determining GACT began with understanding alternative stripping technologies and best management practices to minimize MeCl emissions at existing major and area sources. In selecting GACT for affected area sources that perform paint stripping operations, we determined that best management practices to minimize evaporative losses (fugitive emissions) from MeCl in paint stripper formulations was not only a practice that many in the industry use, but also was generally cost effective for all sources in this category. As part of the GACT analysis, we considered whether there were differences in processes, sizes, or other factors affecting emissions, control technologies or management practices that would warrant subcategorization. Under CAA section 112(d)(1) of the CAA, EPA “may distinguish among classes, types, and sizes within a source category or subcategory in establishing such standard.” In looking to other means by which MeCl emissions could be reduced from these operations, we did recognize that some sources utilized alternative stripping technologies (e.g., blasting) to accomplish much of their work. These sources, distinguishable from the rest of the category by having other available on site methods to strip paint not involving MeCl, could reasonably route work away from paint stripping operations that involved MeCl as a means of control. Pursuant to section 112(d)(1), we have subcategorized these sources with alternative stripping methods by class. As mentioned earlier, these different paint stripping methods include
(1)non-MeCl—containing chemical strippers;
(2)mechanical stripping;
(3)blasting (including dry or wet media); and
(4)thermal or cryogenic decomposition. We also recognized that this subcategory represented the 30 percent (approximately) of the source category with the highest MeCl emissions. We determined that sources that used 150 gallons or more per year of paint stripper containing MeCl was the best approximation criteria for defining this subcategory for three reasons. First, based on our findings from:
(1)A study of paint stripping facilities (referenced in a Metropolitan Water District of Southern California (Environmental Defense Fund) document entitled “Source Reduction and Recycling of Halogenated Solvents in Paint Stripping—Technical Support Document”),
(2)our understanding of the affected facilities, and
(3)our analysis of the model plants, for facilities using 150 gallons of MeCl or more per year, we believe it is reasonable to expect cost savings from the process of routing work away from paint stripping operations involving MeCl to other means of stripping. The study of paint stripping facilities highlighted to us that a good portion of paint stripping at these facilities (as high as 90 percent at one facility) was not really necessary. In being conservative, we believe that 5 percent of paint stripping is not necessary. An example of paint stripping that may be found as not necessary includes the refinishing of personal oxygen gas cylinder surfaces (that often automatically get stripped of paint for cosmetic purposes during recycling) when they actually need no refinishing for serviceability. In addition, we believe that there is a slight cost savings associated with routing work away from paint stripping involving MeCl to a media blasting technique, when the media involved is recycled. Second, our analysis of model plants suggested that most facilities using 150 gallons of MeCl or more per year had other methods of stripping available on site (e.g., blasting or thermal) to which work could be easily routed. Finally, we recognized that the 150 gallon threshold reasonably coincides with exposure levels at which Occupational Safety and Health Administration
(OSHA)requirements (29 CFR 1910.123-1910.126) are to be implemented. OSHA provided specific dip tank size criteria to characterize which size tanks must follow specific worker safety requirements. We calculated, based on the sizes provided by OSHA, the volume of stripper that the minimum tank would hold and used this volume for our size criteria. For these reasons we are proposing that facilities using 150 gallons of MeCl or more per year must, in addition to the best management practices to minimize evaporative losses, develop and implement the MeCl minimization plan mentioned earlier. We recognize that given the wide range of paint stripping operations and techniques, there is no single substitute that could completely eliminate the need for MeCl-containing paint strippers, particularly on confined and hard to reach surfaces where other methods tend not to remove paint as well. We do, however, believe that given the existing management practices currently exercised by much of this industry, it is not unreasonable to incorporate management practices that minimize or eliminate MeCl emissions from many of the applications where MeCl-containing paint strippers are used. Therefore, we are proposing standards that require operators to employ management practices to reduce the emissions of MeCl through alternative paint stripping techniques when possible, and, for sources that use 150 gallons of MeCl or more per year to develop and implement a minimization plan to reduce MeCl-containing paint stripper use when it is not needed. Miscellaneous Surface Coating The emissions from these operations come primarily from the spray application of coatings. Although most of the HAP are deposited as part of the paint film, some of the HAP becomes airborne in the paint overspray. The volume of coating deposited as part of the paint film as a fraction of the volume of paint sprayed is referred to as the transfer efficiency (i.e., 60 percent of the coating sprayed is deposited as paint film then the transfer efficiency is 60 percent). Our analysis of operations that involve the spray application of coatings has determined that GACT for these coating operations is a combination of:
(1)Confining all spray coating operations to a spray booth or equivalent ventilated and filtered enclosure,
(2)using only spray equipment that is designed to achieve a high rate of transfer efficiency (HVLP or equivalent spray technology), and
(3)having the spray equipment operator trained and certified in the techniques needed to properly set up and operate high transfer efficiency spray equipment in order to optimize the transfer efficiency. Based on the site visits, data review, and contacts with industry, for which documentation is provided in the public docket for this rulemaking, we have determined that the standard practice among the majority of facilities in the miscellaneous surface coating industry is to perform nearly all spray painting inside a spray booth or ventilated prep station enclosed by curtains. The only exceptions are priming small areas, or performing spot repairs with an air brush. At many facilities, all spray painting is performed in a spray booth or ventilated prep station to reduce contaminants that would compromise the final finish and to maintain a clean work area. In addition, it is standard practice to filter the exhaust from the booth or prep station to capture paint overspray so that it is not deposited on ventilation equipment or surrounding property. Therefore, based on the availability and cost-effectiveness, we have determined that a filtered spray booth or prep station is GACT for all miscellaneous surface coating operations to control HAP emissions. The proposed standards would require all spray painting that is not done with an airbrush or hand-held non-refillable aerosol cans to be done in a filtered spray booth or prep station. We also conclude that the above proposed control requirements can be achieved without additional burden to affected sources because filtered spray booths or prep stations are already required in order to comply with OSHA standards for spray finishing operations (29 CFR 1910.94(c)). At the majority of facilities that were visited, the spray booths were fitted with either fiberglass or polyester fiber filters on the spray booth and prep station exhaust. One facility had a water-wash spray booth filter and another had expanded polystyrene foam baffle filters. An EPA study entitled “Comparative Study of Spray Booth Filter System Efficiency”, which is provided in the public docket for this rulemaking, determined that fiberglass and polyester fiber filters had superior performance, relative to other filter types, such as polystyrene foam and cardboard baffle filters, in controlling the heavy metals found in paint overspray and which are the target HAP for these source categories. Therefore, based on our findings during the site visits, information provided by the industry on the most commonly used filters, and the EPA study on filter effectiveness and the cost-effectiveness we have determined that these fiberglass and polyester fiber filters represent GACT for controlling the heavy metals present in paint overspray. The proposed rule would allow for the use of other types of paint overspray filters, but they would be required to achieve 98-percent filter efficiency. This alternative was included since the EPA did not test all types of filters used in spray booths; therefore the market may already provide for filters that are as equally efficient which were not available or not tested in the EPA study, but nevertheless representative of GACT. The EPA study on filter effectiveness and filter efficiency data provided by filter vendors formed the basis for the 98-percent filter efficiency The limit represents a performance level that separates the fiberglass and polyester fiber filters from baffle type filters. The baffle type filters were shown in the EPA study to have poor performance in controlling fine particulate that can contain heavy metals. The proposed standards would not prohibit the use of coatings that contain the heavy metals or target HAP for these source categories. Although California has prohibited the use of automotive refinish coatings that contain Cr-VI and cadmium (Cd), a nationwide prohibition would impose unreasonable burden on the industry, and could force facilities out of business due to a lack of alternative materials that could address the performance criteria (e.g., corrosion protection) that may be used in all environments across the United States. The proposed standards would specifically require spray equipment that is designed to achieve a high rate of transfer efficiency (HVLP or equivalent spray technology) in order to reduce the overall amount of coating required to complete each coating job. Reducing the amount of coating required for each job directly correlates to significant reductions in the overall emissions from these coating operations. Conventional high-pressure air-atomized spray guns have a typical transfer efficiency of about 30 percent. That means that for every gallon of coating sprayed, only 0.30 gallon reaches the part being coated. The remaining 0.70 gallon misses the part and either lands on the booth walls and floor or is pulled into the spray booth filters and exhaust system. To get one gallon on the part, a conventional spray gun needs to use 3 1/3 gallons of coating. HVLP and other types of high-efficiency spray guns use lower air pressures and achieve transfer efficiencies of about 50 percent, or greater, with appropriate operator training. To get one gallon on the part, a high efficiency spray gun needs to use only 2 gallons of coating. This increased transfer efficiency represents a 40 percent decrease in coating consumption and in resultant emissions compared to conventional spray guns. For these reasons, many surface coating operations have already switched to HVLP and other types of high efficiency spray guns. All of the autobody refinishing facilities visited by EPA and about 80 percent of the other miscellaneous surface coating facilities for which EPA has data used HVLP or equivalent spray guns for coating application. About half these sources were not required to do so by regulations and have switched in order to reduce coating costs through reduced consumption. Regulations for autobody refinishing in 10 States require the use of HVLP spray guns or their equivalent statewide, and they are required in ozone non-attainment areas in 12 States without a statewide requirement. Given the cost-effectiveness and the use of HVLP or equivalent spray guns has been adopted at the facilities visited by EPA and is required in many States and ozone non-attainment areas, we have determined that these types of spray guns are GACT for spray-applied coatings. The purpose of requiring the spray equipment operator to be trained and certified is to ensure that the operator is skilled in the techniques needed to achieve a high rate of transfer efficiency. We have concluded, based on the findings of the Spray Technique Analysis and Research (STAR®) program study presented in the following paragraph, and included in the public docket for this rulemaking, that even when spray operations are confined within a spray booth and appropriate spray technology is used, they are not as effective if the painter is not properly trained. We therefore have determined that GACT requires implementation of the above requirements by a trained painter. The training would include measures intended to increase transfer efficiency and reduce overspray and coating usage. Most, if not all of the measures are currently offered in training provided by coating manufacturers on an annual basis. In addition to manufacturer-sponsored training, the STAR® program, which originated at the University of Northern Iowa Waste Reduction Center, has now been adopted at 37 locations (primarily community colleges) throughout the United States. Coating manufacturers currently provide this training to their clients as part of the service benefits of contracting with them and as a component in the warranty agreement. Data from the STAR® program demonstrate that spray operator training can increase transfer efficiency for those using high efficiency spray equipment from an average of about 50 percent to 60 percent, or more, representing a 20 percent reduction in coating usage compared to untrained operators. This 20 percent reduction in coating usage would translate into a 20 percent reduction in emissions of organic HAP that are contained in those coatings. It would also reduce emissions of the heavy metals that are in the coatings. It is important to note that these “untrained” operators are not inexperienced painters. They often have many years of experience before they enter these training programs. However, they have not been specifically trained in how to best set up and operate high efficiency spray equipment and to optimize their technique to maximize transfer efficiency and minimize coating consumption. About 3,500 painters have already completed STAR® training and at least one company operating multiple collision repair shops has established a STAR®-based in-house training program. Since many painters already attend regular training sponsored by coating companies and trade organizations, we determined that the specified painter training, or a comparable training program, is GACT for these source categories. Our analysis has determined that the proper training and certification for spray coating operators should be comparable to existing programs such as those offered by The Inter-Industry Conference on Auto Collision Repair (I-CAR) and the STAR®-based programs offered in various states. The essential elements of training and certification, for the purposes of achieving compliance with the requirements of the proposed standard, should at a minimum, train, examine and certify each spray equipment operator in the proper techniques in:
(1)Coating material handling, including spills and clean up,
(2)substrate preparations that minimize over spray,
(3)proper equipment selection and set-up to optimize transfer efficiency,
(4)coating application and spray technique that minimizes over spray,
(5)spray equipment cleaning and maintenance, and
(6)operating and maintaining a spray booth. However, EPA does not believe that I-CAR and STAR® are the only programs that contain these essential elements for operator instruction and certification in the skills needed to achieve a high rate of transfer efficiency with proper equipment. The proposed rule does not limit training and certification to only these two programs, since the critical elements are the training components. We are open to and request comment regarding viable training and certification alternatives that are available to spray coating operators that should be considered that would achieve the same or comparable results. These alternatives could include, but not be limited to, state, community college, or industry sponsored training and certification programs, either on the job or through classroom, hands-on, or on-line instruction. The proposed rule would require that all spray gun cleaning be done in enclosed spray gun cleaners, or the disassembled spray gun could be cleaned by hand without the benefit of atomization. Spraying of cleaning solvent through spray guns outside of an enclosed gun washer would be prohibited. All of the facilities visited by EPA had enclosed gun washers and other contacts with industry members indicate that this is standard practice among well-controlled facilities. Therefore, we have determined that an enclosed spray gun cleaner or hand cleaning is GACT for these source categories to reduce emissions from spray gun cleaning. We believe the measures in the proposed rule would effectively control emissions of the target HAP for these sources categories. D. How did we select the format of the proposed standards? The proposed standards are in the form of management practice standards and equipment standards. These include reducing the need for MeCl-containing paint strippers, painter training and the use of filtered booths or prep stations, HVLP spray guns, and enclosed spray gun cleaners. This format was selected since these standards are the most universally applicable and effective for these source categories, they reflect the types of controls that are already in place at well-controlled facilities, and they would have the minimum burden for monitoring, recordkeeping, and reporting compared to other formats. Facilities applying coatings can use filters other than the specified types if the filters are demonstrated to achieve 98 percent filter efficiency. They may also use spray guns other than HVLP spray guns if the manufacturer has demonstrated to the EPA that they are equivalent in transfer efficiency. The proposed standards do not include numerical emission limits. After considerable review of industry-supplied data for paint stripping and coatings, and consultation with the industry, we have determined that numerical emission limits are not feasible given the variability in the operational parameters (e.g., substrate (i.e., metal, plastic or wood), performance specifications, production rate, etc.) and the variety of work being performed, as many of the sources in these source categories are job shops. Given this variability for these sources EPA believes it is important to provide the greatest flexibility for these sources without compromising emission reductions. E. How did we select the initial compliance and testing requirements? The proposed rule includes the minimum requirements needed to demonstrate initial compliance. You would demonstrate initial compliance by implementing all of the requirements in the proposed rule by the dates specified in the rule, and certifying in the initial compliance notification that your source is in compliance. This proposed rule is comprised of management practices and equipment requirements, of which sources have the option of substituting the specified equipment with alternative equipment that would achieve equivalent or better emissions reductions than that specified, provided they obtain approval from the Administrator as required in section 63.11173(e) of the proposed rule. However, test methods are needed in order to demonstrate equivalent performance of alternative equipment. For this reason, the proposed rule includes separate testing methods that would need to be followed to measure paint overspray filter efficiency when a source does not use fiberglass or polyester fiber filters, and to demonstrate that a paint spray gun is equivalent to an HVLP spray gun in transfer efficiency. The proposed methods represent those methods that are already in use to measure filter efficiency and equivalency to HVLP spray guns based on transfer efficiency. It is expected that the filter or spray gun supplier would complete these measurements and provide copies of the results to the purchaser so they could document compliance. We do not expect the owner of the surface coating operation to perform the measurements. F. How did we select the continuous compliance requirements? The proposed rule includes the minimum requirements needed to demonstrate continuous compliance. You would demonstrate continuous compliance by ensuring that you follow the prescribed best management practices for paint stripping operations. Further, if you use more than 150 gal per year of paint stripper containing MeCl, you must demonstrate compliance by implementing and following your MeCl Minimization Plan. For surface coating operations you would ensure that all painters maintain their training and certification, all spray-applied coating is done in a filtered spray booth or prep station, the filters are of the proper type or efficiency, all spray guns are HVLP or equivalent, and all gun cleaning is done in an enclosed spray gun cleaner or by hand. You would also need to maintain records that all painters are trained and certified, and that filters and spray guns meet the specifications for filter efficiency and transfer efficiency, respectively, if needed. G. How did we select the compliance date? You would be allowed 2 years to comply with the proposed standards if your operation is an existing source. We believe that 2 years is needed to allow adequate time for existing sources to ensure that all additional equipment, if needed, is purchased and installed and to provide sufficient time for painters employed by the 36,000 sources to receive the training that would be required by the proposed rule. H. How did we decide to exempt these area source categories from the CAA title V permit requirements? Section 502(a) of the CAA provides that the Administrator may exempt an area source category from title V if he determines that compliance with title V requirements is “impracticable, infeasible, or unnecessarily burdensome” on an area source category. See CAA section 502(a). In December 2005, EPA interpreted the term “unnecessarily burdensome” in CAA section 502 and developed a four-factor balancing test for determining whether title V is unnecessarily burdensome for a particular area source category, such that an exemption from title V is appropriate. See 70 FR 75320, December 19, 2005 (“Exemption Rule”). The four factors that EPA identified in the Exemption Rule for determining whether title V is “unnecessarily burdensome” on a particular area source category include:
(1)Whether title V would result in significant improvements to the compliance requirements, including monitoring, recordkeeping, and reporting, that are proposed for an area source category (see 70 FR 75323);
(2)whether title V permitting would impose significant burdens on the area source category and whether the burdens would be aggravated by any difficulty the sources may have in obtaining assistance from permitting agencies (see 70 FR 75324);
(3)whether the costs of title V permitting for the area source category would be justified, taking into consideration any potential gains in compliance likely to occur for such sources (see 70 FR 75325); and
(4)whether there are implementation and enforcement programs in place that are sufficient to assure compliance with the NESHAP for the area source category, without relying on title V permits (see 70 FR 75326). In discussing the above factors in the Exemption Rule, we explained that we considered on “a case-by-case basis the extent to which one or more of the four factors supported title V exemptions for a given source category, and then we assessed whether considered together those factors demonstrated that compliance with title V requirements would be ‘unnecessarily burdensome’ on the category, consistent with section 502(a) of the Act.” See 70 FR 75323. Thus, in the Exemption Rule, we explained that not all of the four factors must weigh in favor of exemption for EPA to determine that title V is unnecessarily burdensome for a particular area source category. Instead, the factors are to be considered in combination and EPA determines whether the factors, taken together, support an exemption from title V for a particular source category. In the Exemption Rule, in addition to determining whether compliance with title V requirements would be unnecessarily burdensome on an area source category, we considered, consistent with the guidance provided by the legislative history of section 502(a), whether exempting the area source category would adversely affect public health, welfare or the environment. See 70 FR 15254-15255, March 25, 2005. As discussed below, we have determined that the exemptions from title V would not adversely affect public health, welfare and the environment. In considering the exemption from title V requirements for sources in the categories affected by this proposed rule, we first compared the title V monitoring, recordkeeping, and reporting requirements (factor one) to the requirements in this proposal and determined that the management practices currently used at most facilities is GACT and the rule requires recordkeeping that serves as monitoring and deviation reporting to ensure compliance. Because the proposal would require management practices for certain processes and requires recordkeeping designed to serve as monitoring and that recordkeeping assures compliance with the requirements of the proposed rule, additional monitoring requirements that might be added under title V would be unnecessary to assure compliance. Monitoring other than recordkeeping is not practical or appropriate in either case because the requirements are management practices. Records are required to ensure that the management practices are followed, including such records as the amount of MeCl use in paint stripping or the training certification for spray gun operators. As part of the first factor, we also considered the extent to which title V could potentially enhance compliance for area sources covered by this proposed rule through recordkeeping or reporting requirements. For any affected area source facility, the proposed rule would require an initial notification, a compliance status report, and report of deviations. We considered the various title V recordkeeping and reporting requirements, including requirements for a 6-month monitoring report, deviation reports, and an annual certification in 40 CFR 70.6 and 71.6. The proposed rule would also require affected facilities to certify compliance with the management practices identified as GACT. In addition, facilities must maintain records showing compliance with the required management practices and deviations. The information required in the deviation reports and records is similar to the information that must be provided in the deviation reports required under 40 CFR 70.6(a)(3) and 40 CFR 71.6(a)(3). We acknowledge that title V might impose additional compliance requirements on this category, but, we conclude that the monitoring, recordkeeping and reporting requirements of this proposed rule are sufficient to ensure compliance with the proposed standards, and title V would not significantly improve those compliance requirements. Under the second factor, we determine whether title V permitting would impose a significant burden on the area sources in these categories and whether that burden would be aggravated by any difficulty the source may have in obtaining assistance from the permitting agency. Subjecting any source to title V permitting imposes certain burdens and costs that do not exist outside of the title V program. The EPA estimated that the average cost of obtaining and complying with a title V permit was $38,500 per source for a 5-year permit period, including fees. See Information Collection Request for Part 70 Operating Permit Regulations, January 2000, EPA ICR Number 1587.05. While EPA does not have specific information for the burdens and costs of permitting for either paint stripping or miscellaneous surface coating area sources; there are inherent activities associated with the part 70 and 71 rules that are mandatory and impose burdens on every affected source. These activities include: Reading and understanding permit program guidance and regulations; obtaining and understanding permit application forms; answering follow-up questions from permitting authorities after the application is submitted; reviewing and understanding the permit; collecting records; preparing and submitting monitoring reports on a 6-month or more frequent basis; preparing and submitting prompt deviation reports, as defined by the State, which may include a combination of written, verbal, and other communications methods; collecting information, preparing, and submitting the annual compliance certification; preparing applications for permit revisions every 5 years; and, as needed, preparing and submitting applications for permit revisions. In addition, although not required by the permit rules, many sources obtain the contractual services of professional scientists and engineers (consultants) to help them understand and meet the permitting program's requirements. The ICR for part 70 provides additional information on the overall burdens and costs, as well as the relative burdens of each activity described here. For a more comprehensive list of requirements imposed on part 70 sources (and hence, burden on sources), see the requirements of 40 CFR 70.3, 70.5, 70.6, and 70.7. In assessing the second factor for facilities affected by this proposal, we found that nearly all of approximately 3,000 paint stripping and 36,000 miscellaneous surface coating facilities are small businesses, some having as few as one or two employees. These small sources lack the technical resources needed to independently comply with permitting requirements and the financial resources needed to hire the necessary staff or outside consultants. Given that title V permitting would impose significant economic and non-economic costs on nearly all of these area sources, we conclude that title V is a significant burden for sources in these categories. Furthermore, given the large number of sources in these categories and relative small facility size, it would likely be difficult for each to obtain independent assistance from their respective permitting authorities. We, thus, conclude that factor two strongly supports title V exemptions for facilities in these area source categories. The third factor, which is closely related to the second factor, is whether the costs of title V permitting for these area sources would be justified, taking into consideration any potential gains in compliance likely to occur for such sources. We explained under the second factor (above) that the economic and non-economic costs of compliance with title V would impose a significant burden on nearly all of the approximately 3,000 paint stripping and 36,000 miscellaneous surface coating facilities. We also concluded in considering the first factor that, while title V might impose additional requirements, that the monitoring, recordkeeping and reporting requirements in the NESHAP assure compliance with the management practices imposed in the NESHAP. In addition, below in our consideration of the fourth factor we find that there are adequate implementation and enforcement programs in place to assure compliance with the NESHAP. Because the costs, both economic and non-economic, of compliance with title V are high, and the potential for gains in compliance are low, title V permitting is not justified for this source category. Accordingly, the third factor supports title V exemptions for these area source categories. Finally, in determining if title V requirements were unnecessarily burdensome, we considered whether there are implementation and enforcement programs in place that are sufficient to assure compliance with the NESHAP without relying on title V permits (factor four). In doing so, we considered whether there are sufficient State programs in place to enforce these proposed area source standards, and we believe that there are sufficient State programs to assure compliance with these proposed area source standards. In addition, we recognize that EPA retains authority to enforce these NESHAP anytime under CAA sections 112, 113 and 114. We concluded that title V permitting is “unnecessary” to assure compliance with these proposed standards because the statutory requirements for implementation and enforcement of these proposed standards by the delegated States and EPA are sufficient to assure compliance, in all parts of the United States, without title V permits. States and EPA often conduct voluntary compliance assistance, outreach, and education programs (compliance assistance programs), which are not required by statute. We determined that these additional programs will supplement and enhance the success of compliance with these proposed standards and conclude that, in light of all of the above, there are implementation and enforcement programs in place that are sufficient to assure compliance with these proposed standards without relying on title V permitting. In applying the fourth factor in the Exemption Rule, where EPA had deferred action on the title V exemption for several years, we had enforcement data available to demonstrate that States were not only enforcing the provisions of the area source standards that we exempted, but that the States were also providing compliance assistance to ensure that the area sources were in the best position to comply with the standards. See 70 FR 75325-75326. In proposing this rule, we did not have similar data available on the specific enforcement as in the Exemption rule, but we have no reason to think that States will be less diligent in enforcing these proposed standards. See 70 FR 75326. In fact, States must have adequate programs to enforce the HAP regulations and provide assurances that it will enforce all NESHAP, including area source standards, before EPA will delegate the program. See 40 CFR part 63, subpart E. In light of all of the above, we conclude that there are implementation and enforcement programs in place that are sufficient to assure compliance with these proposed standards without relying on title V permitting. Balancing the four factors for these area source categories strongly supports that title V is unnecessarily burdensome. While title V might add additional compliance requirements if imposed, we concluded that there would not be significant improvements to the compliance requirements in this proposed rule, because the proposed rule requirements are specifically designed to assure compliance with the management and equipment practices imposed on these area source categories. We also concluded that the economic and non-economic costs of compliance with title V, in conjunction with the likely difficulty this large number of small sources would have obtaining assistance from the permitting authority, would impose a significant burden on these area sources. We determined that the high relative costs would not be justified given that there was likely to be little or no potential gain in compliance likely to occur if title V were required, and that there are adequate implementation and enforcement programs in place to assure compliance with these proposed standards. Thus, we conclude that title V permitting would be “unnecessarily burdensome” for these area source categories. In addition to evaluating whether compliance with title V requirements is “unnecessarily burdensome,” EPA also considered, consistent with guidance provided by the legislative history of section 502(a), whether exempting these area source categories from title V requirements would adversely affect public health, welfare, or the environment. Exemption of these area source categories from title V requirements would not adversely affect public health, welfare, or the environment because the level of control would remain the same if a permit were required. The title V permit program does not impose new substantive air quality control requirements on sources, but instead requires that certain procedural measures be followed, particularly with respect to determining compliance with applicable requirements. As stated in our consideration of factor one for these categories, title V would not lead to significant improvements in the compliance requirements applicable to existing or new area sources. Furthermore, one of the primary purposes of the title V permitting program is to clarify, in a single document, the various and sometimes complex regulations that apply to sources in order to improve understanding of these requirements and to help sources to achieve compliance with the requirements. In these cases, however, placing all requirements for the source in a title V permit would do little to clarify the requirements applicable to each source or assist it in compliance with the proposed rule requirements, because of the simplicity of the source and the proposed standards, and the likelihood that these sources are not subject to other regulatory requirements under the CAA. We have no reason to think that new sources would be substantially different from the existing sources in these categories. In addition, we explained in the Exemption Rule that requiring permits for the large number of area sources could, at least in the first few years of implementation, potentially adversely affect public health, welfare, or the environment by shifting State agency resources away from assuring compliance for major sources with existing permits to issuing new permits for these area sources, potentially reducing overall air program effectiveness. For this proposed rule, we conclude that title V exemptions for these area sources will not adversely affect public health, welfare, or the environment for all of the reasons explained above. For the foregoing reasons, we are proposing to exempt these source categories from title V permitting requirements. V. Impacts of the Proposed Standards The EPA estimates that about 39,000 establishments perform paint stripping and miscellaneous surface coating operations. We estimate that about 3,000 of these establishments are paint stripping facilities and 36,000 establishments are surface coating operations. The majority of these surface coating establishments (about 35,000) are involved in motor vehicle and mobile equipment refinishing, and employ about 263,000 people, of which about one-third are painters. A. What are the air impacts? Paint Stripping Operations The baseline MeCl emissions from paint stripping operations are estimated to be 3,800 tpy. Around 500 tpy is estimated to be emitted from the approximately 2,000 facilities that use less than 150 gal of paint stripper containing MeCl, per year (which approximately equals MeCl emissions of 1,000 pounds per year based on typical stripper formulations). The remaining 3,300 tpy is estimated to be emitted by the approximately 1,000 paint strippers that use more than 150 gallons of MeCl stripper and who would be required to develop a MeCl minimization plan. Miscellaneous Coating Operations The baseline emissions from the surface coating operations are estimated to be about 38,000 tpy of HAP, including 12.4 tpy of inorganic HAP ( *e.g.* Pb and Cr-VI compounds). In addition to the HAP, baseline emissions of criteria pollutants are estimated to be 3,100 tpy of particulate matter
(PM)from paint overspray and 120,400 tpy of volatile organic compounds
(VOC)from coating and solvent evaporation. Implementation of the proposed standards would achieve a reduction of 6,900 tpy of HAP from surface coating operations, including about 11.4 tpy of inorganic HAP. In addition to the HAP, we estimate PM reductions of about 2,900 tpy and VOC reductions of about 20,900 tpy. These reductions would occur as a result of reduced use of HAP-containing solvents and coatings, increased use of filtered spray booths to capture overspray, increased spray painter training and use of HVLP or equivalent guns to improve transfer efficiency and to reduce coating overspray and paint consumption, and increased use of enclosed spray gun washers. Additional detail on these calculations are included in the public docket for this rulemaking. B. What are the cost impacts? Paint Stripping Operations We estimate that the proposed standards for paint stripping operations will result in an initial cost of around $1,500,000 and a net savings in annual costs. This includes an estimated initial cost of $490,000 and annual costs of $80,000 for the nearly 2,000 paint strippers whose annual usage of paint stripper containing MeCl is below 150 gallons. Initial costs for the approximately 1,000 paint strippers who use more than 150 gallons per year, who would be required to develop MeCl minimization plans are estimated to be just over $1 million. The annual costs for those plants are estimated to be a net savings of $920,000. For the nearly 2,000 paint strippers whose annual usage of MeCl in paint strippers is below 1,000 lb, or whose annual usage of paint stripper containing MeCl is below 150 gallons, evaluation of improved methods to reduce the emissions of MeCl from evaporative losses comprise most of the costs. The costs for the approximately 1,000 paint strippers who are required to develop MeCl minimization plans are attributable to the development and implementation of the MeCl minimization plan. Annual costs will include an estimated $400,000 for the development and implementation of the MeCl minimization plan and reporting requirements and an estimated $450,000 associated with switching paint stripping technologies. Annual savings resulting from the implementation of the MeCl minimization plan include an estimated $420,000 from the elimination of unnecessary stripping operations and $1,320,000 in management practice savings from the reduced use of MeCl-containing strippers. For reasons set out earlier in this preamble, we believe that 5 percent of paint stripping in the private sector is not necessary and specifically request comment as to whether or not 5 percent is an appropriate figure to use. Additional detail on these calculations are included in the public docket for this rulemaking. Miscellaneous Coating Operations We estimate that the proposed standards for surface coating operations will have no net annual cost to surface coating operations. The initial cost of complying with the proposed standards would be off-set and recovered over time by cost savings as a result of more efficient use of labor and materials by surface coating operations. The initial costs for surface coating operations are for purchase improved spray booth filters, automated enclosed gun washers, HVLP spray guns, and painter training, if needed to comply with the proposed standards. Spray finishing operations are already required by OSHA standards to perform spray painting in a spray booth or similar enclosure. However, the proposed standards specify that certain types of filters have to be used on the spray booth exhaust to minimize HAP emissions, and these filters are not addressed by OSHA standards. Some surface coating sources may need to replace their current filters for ones with higher paint overspray capture efficiency, but the higher efficiency filters are readily available and will not result in an additional cost. We estimate that about 5,000 facilities would need to purchase and install an enclosed spray gun washer. The total capital cost for each source that would need to install a gun washer was estimated to be approximately $1,800. This cost is the same for new and existing sources. The total capital cost for all 5,000 sources that would be required to purchase a spray gun washer was estimated to be $9.0 million. The EPA estimates that sources that would need to purchase a spray gun washer would have no net annualized capital costs or operating costs. We estimate the annual costs would be offset from reduced labor to clean spray guns and reduced costs for cleaning solvent purchase and disposal. Spray gun washers are automated so that after loading the spray gun in the washer, the painters can perform other tasks while the spray guns are being cleaned. Automated spray gun washers are also capable of re-using solvent for gun cleaning to minimize solvent consumption and waste disposal. Finally, small surface coating facilities that do not currently have an automated gun washer can still comply with the proposed standards by cleaning guns by hand as long as they do not atomize cleaning solvent from the gun and they collect spent solvent in a container that is closed when not in use. The estimated cost for training is $1,000 per painter, which covers tuition cost and labor cost for 16 hours of training time. Based on the United States census data collected to estimate new sources for this source category the number of refinishing shops in the United States remain constant (i.e., for every new shop, a shop closes) and it is expected that this trend will continue in the future. This reflects on the number of new painters that would need training. We assumed that training certification would be valid for 5 years, so about one-fifth of painters (20 percent) would receive training every year. We estimate that about 18,000 painters would be trained per year at an annual cost of $18 million per year. However, EPA believes that these training costs could be over-stated for at least two reasons. First, many facilities already send their painters to training sponsored by paint companies and trade organizations. Paint companies sponsor painter training so that the paint company can reduce warranty claims on their paint products. These training courses already cover much of the same material required by the proposed rule. Therefore, the rule would not impose new training costs on these facilities that already participate in training. Second, the estimated training cost could be offset by reduced coating costs if the training results in reduced coating consumption. Data from the STAR® training programs indicate that painters who complete this training can decrease the amount of coating sprayed by about 20 percent per job. We estimate that if a typical facility reduced their coating consumption and costs by about 4 percent per year, the cost savings would equalize the increased cost of training after one year, and there would be no net cost in training. To recover the cost of training over 5 years, a typical facility would need to reduce their coating consumption by slightly less than 1 percent. As previously mentioned, EPA believes the costs associated with training are over-stated; however, we specifically request comment on whether or not these assumptions are accurate. In summary, EPA estimates that the proposed requirements for surface coating operations would not result in any net increase in annual costs from the control requirements for surface coating operations. We estimated that the annual cost for recordkeeping and reporting for surface coating operations would be $7.8 million for about 36,000 surface coating operations, or an average of about $220 per facility. Cost estimates are based on the information available to the Administrator and presented in the economic analysis of this rule. Additional detail is included in the public docket for this rulemaking. C. What are the economic impacts? The economic impact analysis focuses on changes in market prices and output levels. A more detailed discussion of the economic impacts is presented in the economic impact analysis memorandum that is included in the docket. Both the magnitude of control costs needed to comply with the rule and the distribution of these costs among affected facilities can have a role in determining how the market prices and quantities will change in response to the rule. In this case, we have so many facilities that model facilities must be used in the cost analysis. The cost analysis estimates that there will be no net increase in annual costs from the control requirements from the proposed regulation for surface coating operations. The record keeping and reporting costs are estimated to range from $76 to $95 per facility per year. These costs are too small to have any significant market impact. Whether the costs are absorbed by the affected facilities or passed on to the purchaser in the form of higher prices, the impacts would be quite small. The cost analysis estimates that there will be a net cost savings from the control requirements, recordkeeping, and reporting from the proposed regulation for paint stripping for all but the smallest model plant. The cost for the smallest model plant is estimated to be $11 a year. Again, these costs are too small to have any significant market impact. Whether the costs are absorbed by the affected facilities or passed on to the purchaser in the form of higher prices, the impacts would be quite small. While most of these facilities are small, the very small costs are not expected to be even a tenth of a percent of revenues. Thus a significant impact is not expected for a substantial number of small entities. D. What are the non-air health, environmental, and energy impacts? Paint Stripping Operations We estimate that there will be a reduction in non-air health and environmental impacts resulting from the paint stripping area source NESHAP. Reduced usage of MeCl-containing chemical strippers will result in reduction in waste water generated from rinsing chemically stripped pieces. Additionally, reduced chemical stripping activity will result in a reduction in the generation of hazardous wastes composed of rags and other chemical stripper applicators and removal equipment. EPA expects some increase in the need for energy to resulting from switching away from MeCl-containing chemical strippers to other paint stripping methods. There would be a slight increase in energy usage associated with switching to other chemical strippers that do not contain MeCl because they often need to be heated above room temperature to be most effective. There is also some increase in energy usage associated with non-manual mechanical stripping and blasting with both dry and wet media. The energy usage increase would be somewhat more for thermal decomposition or cryogenic paint stripping technologies. Thermal decomposition basically uses natural gas heated ovens to bake the paint off the substrate. Cryogenic paint stripping methods have increased electricity demands associated with the production of liquid nitrogen or liquid carbon dioxide. Miscellaneous Coating Operations We estimated that about 5,000 surface coating operations would need to install spray booths to comply with the proposed standards. Spray booths would need electricity to run fans and natural gas to heat make-up air to maintain facility temperatures in colder weather. We estimate that this would lead to an increased electricity consumption of 9.8 million kilowatt hours per year and increased natural gas consumption of 724 million cubic feet per year. However, spray booths are already required for spray finishing operations to comply with OSHA standards, so theses impacts would not be assigned to these proposed standards. Facilities that install spray booths would also need to dispose of used spray booth filters. These are often placed in a sealed drum to prevent spontaneous combustion and disposed of as hazardous waste. We estimate that 5,000 new spray booths could generate used filters equal to about 8,000 drums per year. Facilities that install enclosed spray gun washers would need to dispose of spent solvent as hazardous waste that formerly may have been allowed to evaporate. However, we cannot estimate this amount because we cannot determine the baseline disposal practices for facilities that did not have enclosed spray gun washers. If facilities previously handled spent solvent waste as hazardous waste, the installation of an enclosed spray gun washer could lead to a more efficient use of cleaning solvent and could reduce the volume of waste generated. We expect no increase in generation of wastewater or other water quality impacts. None of the control measures considered for this rule generates a wastewater stream. The installation of spray booths and enclosed gun washers, and increased worker training in the proper use and handling of coating materials should reduce worker exposure to harmful chemicals in the workplace. This should have a positive benefit on worker health, but this benefit cannot be quantified in the scope of this rulemaking. VI. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning And Review Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is a “significant regulatory action.” Accordingly, EPA submitted this action to the Office of Management and Budget
(OMB)for review under Executive Order 12866 and any changes made in response to OMB recommendations have been documented in the docket for this action. B. Paperwork Reduction Act The information collection requirements in this proposed rule have been submitted for approval to the OMB under the Paperwork Reduction Act, 44 U.S.C. 3501 *et seq.* The Information Collection Request
(ICR)document prepared by EPA has been assigned EPA ICR number 2268.01. The information collection requirements are based on notification, recordkeeping, and reporting requirements in the NESHAP General Provisions (40 CFR part 63, subpart A), which are mandatory for all operators subject to national emission standards. These recordkeeping and reporting requirements are specifically authorized by CAA section 114 (42 U.S.C. 7414). All information submitted to EPA pursuant to the recordkeeping and reporting requirements for which a claim of confidentiality is made is safeguarded according to Agency policies set forth in 40 CFR part 2, subpart B. The proposed standards would require sources to submit an initial notification that they are subject to the standards, submit a notification of whether or not the source is in compliance (the notification of compliance status), submit annual compliance reports, and keep records needed to demonstrate compliance. These requirements would be the minimum needed to ensure that sources were complying with the requirements of the proposed rule. We estimate that about 40,000 existing area sources would be subject to the proposed standards. We estimate that about 1,600 new facilities would open per year in the 3 years following promulgation of the standards, but that the total number of facilities would remain constant as new facilities replace facilities that have closed. New and existing sources would have no capital costs associated with the information collection requirements in the proposed standards. The estimated recordkeeping and reporting burden in the third year after the effective date of the promulgated rule is estimated to be 62,877 labor hours at a cost of $2.2 million. This estimate includes, depending on the type of source, the cost of keeping records of paint stripping solvent consumption, painter training, spray booth filter efficiency, and spray gun transfer efficiency, and the cost of submitting annual compliance reports. The average hours and cost per facility would be 6.4 hours and $219. Each facility would be required to submit one compliance report per year. Starting in year 4, about 40,000 facilities would respond per year. 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. To comment on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, including the use of automated collection techniques, we have established a public docket for this rule, which includes this ICR, under Docket ID number EPA-HQ-2005-0526. Submit any comments related to the ICR for this proposed rule to EPA and OMB. See ADDRESSES section at the beginning of this notice for where to submit comments to EPA. Send comments to OMB at the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW, Washington, DC 20503, Attention: Desk Officer for EPA. Since OMB is required to make a decision concerning the ICR between 30 and 60 days after September 17, 2007, a comment to OMB is best assured of having its full effect if OMB receives it by October 17, 2007. The final rule will respond to any OMB or public comments on the information collection requirements contained in this proposal. C. Regulatory Flexibility Act The Regulatory Flexibility Act
(RFA)generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule would not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions. For the purposes of assessing the impacts of the proposed area source NESHAP on small entities, small entity is defined as:
(1)A small business that meets the Small Business Administration size standards for small businesses found at 13 CFR 121.201, which for the entities affected by the proposed rule is generally one having less than 500 to 1,000 employees, depending on the specific NAICS code under which that business is classified, or annual revenues of less than $6.5 million, refer to NAICS code table listed previously;
(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 the proposed rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. There would not be adverse impacts on existing area sources in either of the three source categories because the proposed rule does not create any new burdens for existing sources, other than minimal notification and reporting requirements, and best management or equipment practices, which are designed to recover initial cost. We have determined that the cost of these requirements (estimated at less than $1,000 per year per facility) would not result in an adverse economic impact on any facility, large or small (i.e., the cost is less than one percent of total revenues, even for small businesses). Although this proposed rule will not have a significant economic impact on a substantial number of small entities, EPA nonetheless has tried to reduce the impact of this rule on small entities. The proposed standards represent practices and controls that are common throughout the sources engaged in paint stripping and miscellaneous surface coating. The proposed standards also require the minimal amount of recordkeeping and reporting needed to demonstrate and verify compliance. These proposed standards were also developed in consultation with numerous individual small businesses and their representative trade associations. We continue to be interested in the potential impacts of the proposed rule on small entities and welcome comments on issues related to such impacts. 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, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any 1 year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires 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. EPA has determined, based on discussions with State, local, and tribal governments during site visits, that this 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 one year. Thus, the proposed rule is not subject to the requirements of sections 202 and 205 of the UMRA. Some State, local, or tribal governments have paint stripping and/or miscellaneous surface coating operations (e.g., municipal fleet vehicle maintenance garages) that may be subject to the requirements of this proposed rule. However, we do not believe that any of them are operated by small government entities. Small government entities are expected to contract for refinishing services when these services are needed, rather than doing this work in-house. In addition, total expenditures for all entities to comply with the proposed rule are estimated to be less than $100 million in any year. E. Executive Order 13132: Federalism Executive Order 13132, entitled “Federalism” (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.” This proposed 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 EPA is required by CAA section 112, to establish the standards in the proposed rule. The proposed rule primarily affects private industry, and does not impose significant economic costs on State or local governments. The proposed rule does not include an express provision preempting State or local regulations. Thus, the requirements of section 6 of the Executive Order do not apply to the proposed rule. Thus, Executive Order 13132 does not apply to this rule. In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA specifically solicits comment on this proposed rule from State and local officials. F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Executive Order 13175, entitled “Consultation And Coordination With Indian Tribal Governments” (65 FR 67249, November 9, 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”. This proposed rule does not have tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on tribal governments, or the relation 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 this rule. EPA specifically solicits additional comment on this proposed rule from tribal officials. G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks Executive Order 13045: “Protection Of Children From Environmental Health And Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that:
(1)Is determined to be “economically significant” as defined under Executive Order 12866, and
(2)concerns an environmental health or safety risk that 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. EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. This proposed rule is not subject to Executive Order 13045 because it is based on technology performance and not on health or safety risks. H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use This rule is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, Or Use” (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Some of the affected sources would be expected to install and operate spray booths to comply with the rule and these would require electricity and natural gas to operate. However the increased use of energy by these sources would not have a significant effect on the supply, distribution, or use of energy. I. National Technology Transfer and Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) of 1995 (Pub. L. No. 104-113, Section 12(d), 15 U.S.C. 272 note) directs EPA to use voluntary consensus standards
(VCS)in its regulatory activities, unless to do so would be inconsistent with applicable law or otherwise impractical. The VCS are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by VCS bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency does not use available and applicable VCS. This proposed rulemaking involves technical standards. The EPA is citing the American Society of Heating, Refrigerating, and Air-Conditioning Engineers (ASHRAE) Method 52.1, “Gravimetric and Dust-Spot Procedures for Testing Air-Cleaning Devices Used in General Ventilation for Removing Particulate Matter, June 4, 1992,” to measure paint booth filter efficiency to measure the capture efficiency of paint overspray arrestors with spray-applied coatings. The EPA is also citing California South Coast Air Quality Management District's (SCAQMD) methods: “Spray Equipment Transfer Efficiency Test Procedure For Equipment User, May 24, 1989” and “Guidelines for Demonstrating Equivalency with District Approved Transfer Efficient Spray Guns, September 26, 2002” as methods to demonstrate the equivalency of spray gun transfer efficiency for spray guns that do not meet the definition of high-volume/low pressure
(HVLP)or electrostatic spray. Consistent with the NTTAA, the EPA conducted searches to identify voluntary consensus standards in addition to these methods. The search and review results are in the docket for this rule. One voluntary consensus standard was identified as applicable to this rule. The German standard DIN EN 13966-1:2003 “Determination of the transfer efficiency of atomizing and spraying equipment for liquid coating materials—Part 1: Flat panels,” appears to be applicable to this rule. We are inviting comment on the appropriateness of this standard to establish the transfer efficiency of spray guns that do not meet the definition of high-volume low-pressure or electrostatic spray guns. For the methods required by the proposed rule, a source may apply to EPA for permission to use alternative test methods or alternative monitoring requirements in place of any required testing methods, performance specifications, or procedures under section 63.7(f) and section 63.8(f) of subpart A of the General Provisions. EPA welcomes comments on this aspect of the proposed rulemaking and, specifically, invites the public to identify potentially-applicable voluntary consensus standards and to explain why such standards should be used in regulation. J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations Executive Order
(EO)12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. EPA has determined that this proposed rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it increases the level of environmental protection for all affected populations without having any disproportionately high and adverse human health or environmental effects on any population, including any minority or low-income populations. The proposed rule establishes national standards for air quality that apply equally to all affected sources, whether or not they are located in or near minority or low-income populations. Hence there are no requirements in this proposal that would disproportionately affect these populations. List of Subjects in 40 CFR Part 63 Environmental protection, Air pollution control, Hazardous substances, Reporting and recordkeeping requirements. Dated: September 6, 2007. Stephen L. Johnson, Administrator. For the reasons stated in the preamble, title 40, chapter I of the Code of Federal Regulations is proposed to be amended as follows: PART 63—[AMENDED] 1. The authority citation for part 63 continues to read as follows: Authority: 42 U.S.C. 7401, *et seq.* Subpart A—[Amended] 2. Part 63 is amended by adding subpart HHHHHH consisting of §§ 63.11169 through 63.11180 and table 1 to read as follows: Subpart HHHHHH—National Emission Standards for Hazardous Air Pollutants: Paint Stripping and Miscellaneous Surface Coating Operations at Area Sources What This Subpart Covers Sec. 63.11169 What is the purpose of this subpart? 63.11170 Am I subject to this subpart? 63.11171 What operations does this subpart cover? General Compliance Requirements 63.11172 When do I have to comply with this subpart? 63.11173 What are my general requirements for complying with this subpart? 63.11174 What parts of the General Provisions apply to me? Notifications, Reports, and Records 63.11175 What notifications must I submit? 63.11176 What reports must I submit? 63.11177 What records must I keep? 63.11178 In what form and for how long must I keep my records? Other Requirements and Information 63.11179 Who implements and enforces this subpart? 63.11180 What definitions do I need to know? Tables to Subpart PPPP of Part 63 Table 1 to Subpart HHHHHH of Part 63—Paint Stripping Alternative Stripping Requirements Table 2 to Subpart HHHHHH of Part 63—Applicability of General Provisions to Subpart HHHHHH of Part 63 Subpart HHHHHH—National Emission Standards for Hazardous Air Pollutants: Paint Stripping and Miscellaneous Surface Coating Operations at Area Sources What This Subpart Covers § 63.11169 What is the purpose of this subpart? This subpart establishes national emission standards for hazardous air pollutants for paint stripping operations at area sources that involve the use of paint strippers (chemical formulations) that contain methylene chloride
(MeCl)in paint removal processes, and/or miscellaneous surface coating operations at area sources. This subpart also establishes requirements to demonstrate initial and continuous compliance with the management practice standards contained herein. § 63.11170 Am I subject to this subpart?
(a)You are subject to this subpart if your facility is an area source of hazardous air pollutants
(HAP)as defined in paragraph
(c)of this section, including sources that are part of a tribal, local, State, or Federal facility and you:
(1)Perform paint stripping operations using a paint stripper containing MeCl, and/or
(2)Perform miscellaneous surface coating operations (including autobody refinishing).
(b)Paint stripping means the removal of dried coatings from wood, metal, plastic, and other substrates. Miscellaneous surface coating is the application of a coating to a substrate using, for example, spray guns, brushes, or rollers. When application of coating to a substrate occurs, then miscellaneous surface coating operations also include associated activities, such as surface prep, cleaning, mixing, and storage.
(c)An area source of HAP is a source of HAP that is not a major source of HAP, is not located at a major source, and is not part of a major source of HAP emissions. A major source of HAP is any stationary source or group of stationary sources located within a contiguous area and under common control that emits or has the potential to emit any single HAP at a rate of 9.07 megagrams
(Mg)(10 tons) or more per year or any combination of HAP at a rate of 22.68 Mg (25 tons) or more per year.
(d)This subpart does not apply to paint stripping or surface coating operations that meet any of the criteria of paragraphs (d)(1) through
(2)of this section.
(1)Paint stripping or surface coating performed on-site at installations owned or operated by the Armed Forces of the United States (including the Coast Guard and the National Guard of any such State), or the National Aeronautics and Space Administration.
(2)Paint stripping or surface coating of military munitions manufactured by or for the Armed Forces of the United States (including the Coast Guard and the National Guard of any such State) or equipment directly and exclusively used for the purposes of transporting military munitions as defined in § 63.11180.
(e)If you are an owner or operator of an area source subject to this subpart, you are exempt from the obligation to obtain a permit under 40 CFR part 70 or 71, provided you are not required to obtain a permit under 40 CFR 70.3(a) or 71.3(a) for a reason other than your status as an area source under this subpart. Notwithstanding the previous sentence, you must continue to comply with the provisions of this subpart applicable to area sources. § 63.11171 What operations does this subpart cover?
(a)This subpart applies to each new and existing affected area source engaged in the activities listed in paragraphs (a)(1) through
(3)of this section:
(1)All paint stripping that involves the use of a paint stripper that contains MeCl;
(2)Surface coating of miscellaneous parts and/or products made of metal or plastic, or combinations of metal and plastic; and
(3)Finishing and refinishing of motor vehicles and mobile equipment.
(b)The affected source is the collection of all of the items listed in paragraphs (b)(1) through
(6)of this section. Not all affected sources will have all of the items listed in paragraphs (b)(1) through
(6)of this section.
(1)Mixing rooms and equipment;
(2)Spray booths, ventilated prep stations, curing ovens, and associated equipment;
(3)Spray guns and associated equipment;
(4)Spray gun cleaning equipment;
(5)Equipment used for storage, handling, recovery, or recycling of cleaning solvent or waste paint; and
(6)Equipment used for paint stripping at paint stripping facilities using paint strippers containing MeCl.
(c)An affected source is a new source if it meets the criteria in paragraphs (c)(1) and (c)(2) of this section.
(1)You commenced the construction of the source after September 17, 2007 by installing new paint stripping or surface coating equipment. If you purchase and install paint stripping equipment, spray booths, enclosed spray gun cleaners, or purchase new spray guns to comply with this subpart at an existing source, these actions would not make your existing source a new source.
(2)The new paint stripping or surface coating equipment is used at a source that was not actively engaged in paint stripping and/or miscellaneous surface coating prior to September 17, 2007.
(d)An affected source is reconstructed if it meets the definition of reconstruction in § 63.2.
(e)An affected source is an existing source if it is not a new source or a reconstructed source. General Compliance Requirements § 63.11172 When do I have to comply with this subpart? The date by which you must comply with this subpart is called the compliance date. The compliance date for each type of affected source is specified in paragraphs
(a)and
(b)of this section.
(a)For a new or reconstructed affected source, the compliance date is the applicable date in paragraph (a)(1) or
(2)of this section:
(1)If the initial startup of your new or reconstructed affected source is after September 17, 2007, the compliance date is [DATE OF PUBLICATION OF THE FINAL RULE IN THE **Federal Register** ].
(2)If the initial startup of your new or reconstructed affected source occurs after [DATE OF PUBLICATION OF THE FINAL RULE IN THE **Federal Register** ], the compliance date is the date of initial startup of your affected source.
(b)For an existing affected source, the compliance date is the date 2 years after [DATE OF PUBLICATION OF THE FINAL RULE IN THE **Federal Register** ]. § 63.11173 What are my general requirements for complying with this subpart?
(a)Each paint stripping operation that is an affected area source must implement management practices to minimize the evaporative emissions of MeCl. The management practices must address, at a minimum, the practices in paragraphs (a)(1) through
(6)of this section, as applicable, for your operations.
(1)Evaluate each application to ensure there is a need for paint stripping (e.g., evaluate whether it is possible to re-coat the piece without removing the existing coating).
(2)Evaluate each application where a paint stripper containing MeCl is used to ensure that there is no alternative paint stripping technology that can be used.
(3)Reduce exposure of all paint strippers containing MeCl to the air (e.g., use of a water layer or hollow plastic spheres to cover the stripper in an immersion tank).
(4)Optimize application conditions when using paint strippers containing MeCl to reduce MeCl evaporation (e.g., if the stripper must be heated, make sure that the temperature is kept as low as possible to reduce evaporation).
(5)Practice proper storage and disposal of paint strippers containing MeCl (e.g., store stripper in closed, air-tight containers).
(b)Each paint stripping operation with annual usage of 150 gallons or more of paint strippers containing MeCl must develop and implement a written MeCl minimization plan to minimize the use and emissions of MeCl. The MeCl minimization plan must address, at a minimum, the management practices specified in paragraphs (a)(1) through
(5)of this section, as applicable, for your operations. Each operation must post a placard or sign outlining the MeCl minimization plan in each area where paint stripping operations subject to this subpart occur.
(c)Each paint stripping operation must maintain copies of annual usage of paint strippers containing MeCl on-site at all times.
(d)Each paint stripping operation with annual usage of 150 gallons or more of paint strippers containing MeCl must maintain a copy of their current MeCl minimization plan on-site at all times.
(e)Each miscellaneous surface coating operation must meet the requirements in paragraphs (e)(1) through (e)(5) of this section.
(1)All painters must be certified that they have completed training in the proper spray application of surface coatings and the proper setup and maintenance of spray equipment. The minimum requirements for training and certification are described in paragraph
(f)of this section. The spray application of surface coatings is prohibited by persons who are not certified as having completed the training described in paragraph
(f)of this section. The requirements of this paragraph do not apply to the students of an accredited surface coating training program who are under the direct supervision of an instructor who meets the requirements of this paragraph.
(2)All spray-applied coatings must be applied in a spray booth or preparation station that meets the requirements of paragraph (e)(2)(i) of this section and either paragraph (e)(2)(ii) or (e)(2)(iii) of this section.
(i)All spray booths and preparation stations must be fitted with polyester fiber or fiberglass particle filters on the exhaust, or must be fitted with a type of filter technology that is demonstrated to achieve at least 98-percent capture of paint overspray. The procedure used to demonstrate filter efficiency must be consistent with the American Society of Heating, Refrigerating, and Air-Conditioning Engineers Method 52.1, “Gravimetric and Dust-Spot Procedures for Testing Air-Cleaning Devices Used in General Ventilation for Removing Particulate Matter, June 4, 1992.”
(ii)Spray booths and preparation stations used to refinish complete motor vehicles or mobile equipment must be fully enclosed with a full roof, and four complete walls or complete side curtains, and must be ventilated at negative pressure so that air is drawn into any openings in the booth walls or preparation station curtains.
(iii)Spray booths and preparation stations that are used to coat miscellaneous parts and products or vehicle subassemblies must have a full roof, at least three complete walls or complete side curtains, and must be ventilated so that air is drawn into the booth.
(3)All spray-applied coatings must be applied with a high-volume, low-pressure
(HVLP)spray gun, electrostatic application, or an equivalent technology that is demonstrated by the spray gun manufacturer to achieve comparable transfer efficiency, and for which written approval has been obtained from the Administrator. The procedure used to demonstrate that spray gun transfer efficiency is equivalent to that of an HVLP spray gun must be equivalent to the California South Coast Air Quality Management District's “Spray Equipment Transfer Efficiency Test Procedure for Equipment User, May 24, 1989” and “Guidelines for Demonstrating Equivalency with District Approved Transfer Efficient Spray Guns, September 26, 2002.”
(4)All paint spray gun cleaning must be done with either non-HAP gun cleaning solvents, or with a fully enclosed spray gun cleaner. Hand cleaning of parts of the disassembled gun, such as the air cap, with HAP-containing solvent is permitted. Spraying of atomized or non-atomized HAP-containing cleaning solvent through the gun outside of the enclosed portion of the gun cleaner, or when the gun cleaner is opened, is prohibited.
(5)As provided in § 63.6(g), we, the U.S. Environmental Protection Agency, may choose to grant you permission to use an alternative to the management practice standards in this section after you have requested approval to do so according to § 63.6(g)(2).
(f)Each owner or operator of an affected miscellaneous surface coating source must ensure and certify that all new and existing personnel, including contract personnel, who spray apply surface coatings are trained in the proper application of surface coatings as required by paragraph(e)(1) of this section. The training program must include, at a minimum, the items listed in paragraphs (f)(1) to (f)(3) of this section.
(1)A list of all current personnel by name and job description who are required to be trained;
(2)Hands-on and classroom instruction that addresses, at a minimum, initial and refresher training in the topics listed in paragraphs (f)(2)(i) through (2)(viii) of this section.
(i)Surface prep.
(ii)Spray gun set up and operation and spray technique for different types of coatings to improve transfer efficiency and minimize coating usage and overspray.
(iii)Routine spray booth and filter maintenance.
(iv)Paint mixing, matching, and applying.
(v)Solving paint application problems.
(vi)Finish defects causes and cures.
(vii)Safety precautions.
(viii)Environmental compliance.
(3)A description of the methods to be used at the completion of initial or refresher training to demonstrate, document, and provide certification of successful completion of the required training.
(g)As required by paragraph (e)(1) of this section, all new and existing personnel at an affected miscellaneous surface coating source, including contract personnel, who spray apply surface coatings must be trained by the dates specified in paragraphs (g)(1) and (2).
(1)If your source is a new source, all personnel must be trained and certified no later than 60 days after hiring or no later than 60 days after [DATE OF PUBLICATION OF THE FINAL RULE IN THE **Federal Register** ], whichever is later. Painter training that was completed within 5 years prior to the date training is required, and that meets the requirements specified in paragraph (f)(2) of this section satisfies this requirement and is valid for a period not to exceed 5 years after the date the training is completed.
(2)If your source is an existing source, all personnel must be trained and certified no later than the compliance date specified in § 63.11172(b). Painter training that was completed within 5 years prior to the date training is required, and that meets the requirements specified in paragraph (f)(2) of this section satisfies this requirement and is valid for a period not to exceed 5 years after the date the training is completed.
(3)Training and certification will be valid for a period not to exceed 5 years after the date the training is completed, and all personnel must receive refresher training that meets the requirements of this section and be re-certified every 5 years. § 63.11174 What parts of the General Provisions apply to me? Table 1 of this subpart shows which parts of the General Provisions in subpart A of this part apply to you. Notifications, Reports, and Records § 63.11175 What notifications must I submit?
(a)Initial Notification. If you are the owner or operator of a paint stripping operation using paint strippers containing MeCl and/or a miscellaneous surface coating operation, you must submit the Initial Notification required by § 63.9(b) for a new affected source no later than 120 days after initial startup or [DATE 120 DAYS AFTER THE DATE OF PUBLICATION OF THE FINAL RULE IN THE **Federal Register** ], whichever is later. For an existing affected source, you must submit the Initial Notification no later than [DATE 1 YEAR AFTER THE DATE OF PUBLICATION OF THE FINAL RULE IN THE **Federal Register** ]. Your Initial Notification must provide the information specified in paragraphs (a)(1) through
(6)of this section.
(1)The name, address, phone number and e-mail address of the owner and operator;
(2)The address (physical location) of the affected source;
(3)An identification of the relevant standard (i.e., this subpart);
(4)A brief description of the type of operation. For example:
(i)For miscellaneous parts and products, identify whether the substrate is metal, plastic, or a combination of metal and plastic, brief characterization of the types of products (e.g., aerospace components, sports equipment, etc.) number of spray booths, and number of painters usually employed at the operation; and
(ii)For motor vehicle or mobile equipment finishing or refinishing, identify the type of operation (e.g., original equipment manufacturer, collision repair facility, production paint shop performing complete paint jobs, automobile restoration or customizing shop, mobile equipment repair and refinishing operation), number of spray booths, number of preparation stations, and number of painters usually employed at the operation.
(5)If a paint stripping operation uses 150 gallons of paint strippers containing MeCl they must submit a written MeCl minimization plan in accordance with § 63.11173(b).
(6)If a paint stripping operation uses less than 150 gallons of paint strippers containing MeCl and chooses not to develop and implement a written MeCl minimization plan in accordance with § 63.11173(b), you must submit a statement signed by a responsible official that certifies the paint stripping operation will not use more than 150 gallons of paint strippers containing MeCl during any calendar year in the future.
(b)Notification of Compliance Status. If you are the owner or operator of an existing affected paint stripping source that annually uses more than 150 gallons of paint strippers containing MeCl or an existing affected coating source, you must submit a Notification of Compliance Status on or before [DATE 2 YEARS AND 60 DAYS AFTER PUBLICATION OF FINAL RULE IN THE **Federal Register** ]. If you are the owner or operator of a new affected paint stripping source that annually uses more than 150 gallons of paint strippers containing MeCl or a new affected coating source, you must submit a Notification of Compliance Status within 120 days after initial startup, or by [DATE 120 DAYS AFTER THE DATE OF PUBLICATION OF THE FINAL RULE IN THE **Federal Register** ], whichever is later. You are required to submit the information specified in paragraphs (b)(1) through
(3)of this section with your Notification of Compliance Status:
(1)Your company's name and address.
(2)A statement by a responsible official with that official's name, title, phone number, e-mail address and signature, certifying the truth, accuracy, and completeness of the notification and a statement of whether the source has complied with all the relevant standards and other requirements of this subpart.
(3)The date of the Notification of Compliance Status.
(4)For each paint stripping affected source, you must include also the method(s) of paint stripping employed and the annual usage of paint strippers containing MeCl for each of the previous 5 calendar years. § 63.11176 What reports must I submit?
(a)Annual Compliance Report. If you are the owner or operator of an affected paint stripping source that annually uses more than 150 gallons of paint strippers containing MeCl or an affected miscellaneous surface coating source, you are required to submit an Annual Compliance Report to the Administrator containing the information specified in paragraphs (a)(1) through
(4)of this section. The annual compliance report must cover each calendar year, beginning with the remainder of the calendar year after the initial compliance date for your source.
(1)Your company's name and address.
(2)A statement by a responsible official with that official's name, title, phone number, e-mail address and signature, certifying the truth, accuracy, and completeness of the report, and certifying whether the source is in compliance with the paint stripping and miscellaneous surface coating standards. If the source is not in compliance, include a description of the deviations from the requirements in §§ 63.11173, 63.11174, 63.11177, and 63.11178, the time periods during which the deviations occurred, and the corrective actions taken.
(3)Date of report.
(4)If your source includes paint stripping operations, include also the method(s) of paint stripping employed at the facility during the period and annual usage of paint strippers containing MeCl for paint stripping.
(b)You must submit the annual compliance report for each calendar year no later than March 1 of the following calendar year.
(c)If you are operating under a Title V permit, certification of compliance under your permit is sufficient to meet the Annual Compliance Report requirement. § 63.11177 What records must I keep? If you are the owner or operator of a miscellaneous surface coating operation, you must keep the records specified in paragraphs
(a)through
(d)and
(g)of this section. If you are the owner or operator of a paint stripping operation, you must keep the records specified in paragraphs
(e)through
(g)of this section.
(a)Certification that each painter has completed the training specified in § 63.11173(f) with the date the initial training and the most recent refresher training was completed.
(b)Documentation of the filter efficiency of any spray booth exhaust filter material that is not a polyester fiber or fiberglass filter, according to the procedure in § 63.11173(e)(3)(i).
(c)Documentation from the spray gun manufacturer that each spray gun that does not meet the definition of an HVLP spray gun, electrostatic application, or air brush has been determined by the Administrator to achieve a transfer efficiency equivalent to that of an HVLP spray gun, according to the procedure in § 63.11173(e)(4).
(d)Copies of any notification submitted as required by § 63.11175 and copies of any report submitted as required by § 63.11176.
(e)Records of paint strippers containing MeCl used for paint stripping operations at your facility, including the MeCl content of the paint stripper used. Documentation needs to be sufficient to verify annual usage of paint strippers containing MeCl (e.g., material safety data sheets or other documentation provided by the manufacturer or supplier of the paint stripper, purchase receipts, records of paint stripper usage, engineering calculations).
(f)If you are a paint stripping source that annually uses more than 150 gallons of paint strippers containing MeCl, you are required to maintain a record of your current MeCl minimization plan on-site for the duration of your facility's operations.
(g)Records of any deviation from the requirements in §§ 63.11173, 63.11174, 63.11175, or 63.11176. These records must include the date and time period of the deviation, and a description of the nature of the deviation and the actions taken to correct the deviation. § 63.11178 In what form and for how long must I keep my records? If you are the owner or operator of an affected source, you must maintain copies of the records specified in § 63.11177 for a period of at least 5 years after the date of each record. Copies of records must be kept on site and in a printed or electronic form that is readily accessible for inspection for at least the first 2 years after their date, and may be kept off-site after that 2-year period. Other Requirements and Information § 63.11179 Who implements and enforces this subpart?
(a)This subpart can be implemented and enforced by us, the U.S. Environmental Protection Agency (EPA), or a delegated authority such as your State, local, or tribal agency. If the Administrator has delegated authority to your State, local, or tribal agency, then that agency (as well as the EPA) has the authority to implement and enforce this subpart. You should contact your EPA Regional Office to find out if implementation and enforcement of this subpart is delegated to your State, local, or tribal agency.
(b)In delegating implementation and enforcement authority of this subpart to a State, local, or tribal agency under subpart E of this part, the authorities contained in paragraph
(c)of this section are retained by the Administrator and are not transferred to the State, local, or tribal agency.
(c)The authority in § 63.11173(d)(3) and (e)(6) will not be delegated to State, local, or tribal agencies. § 63.11180 What definitions do I need to know? Terms used in this subpart are defined in the Clean Air Act, in 40 CFR 63.2, and in this section as follows: *Additive* means a material that is added to a coating after purchase from a supplier (e.g., catalysts, activators, accelerators). *Air brush* means a hand-held air-atomized spray gun intended for spot repair and graphic arts work with a paint cup capacity of no more than 1.0 fluid ounce (30 cc). *Cleaning material* means a solvent used to remove contaminants and other materials, such as dirt, grease, or oil, from a substrate before or after coating application or from equipment associated with a coating operation, such as spray booths, spray guns, racks, tanks, and hangers. Thus, it includes any cleaning material used on substrates or equipment or both. *Coating* means a material applied to a substrate for decorative, protective, or functional purposes. Such materials include, but are not limited to, paints, sealants, caulks, and maskants. Decorative, protective, or functional materials that consist only of protective oils for metal, acids, bases, or any combination of these substances, or paper film or plastic film which may be pre-coated with an adhesive by the film manufacturer, are not considered coatings for the purposes of this subpart. *Compliance date* means the date by which you must comply with this subpart. *Dry media blasting* means abrasive blasting using dry media. Dry media blasting relies on impact and abrasion to remove paint from a substrate. Typically, a compressed air stream is used to propel the media against the coated surface. *Electrostatic application* means any method of coating application where an electrostatic attraction is created between the part to be coated and the atomized paint particles. *Equipment cleaning* means the use of an organic solvent to remove coating residue from the surfaces of paint spray guns and other painting related equipment, including, but not limited to stir sticks, paint cups, brushes, and spray booths. *High-volume, low-pressure
(HVLP)spray equipment* means spray equipment that is permanently labeled as such and used to apply any coating by means of a spray gun which is designed and operated between 0.1 and 10 pounds per square inch gauge
(psig)air atomizing pressure measured dynamically at the center of the air cap and at the air horns. *Initial startup* means the first time equipment is brought online in a paint stripping or surface coating operation, and paint stripping or surface coating is first performed. *Materials that contain HAP* or *HAP-containing materials* mean, for the purposes of this subpart, materials that contain 0.1 percent or more by mass of any individual HAP that is an OSHA-defined carcinogen as specified in 29 CFR 1910.1200(d)(4), or 1.0 percent or more by mass for any other individual HAP. *Military munitions* means all ammunition products and components produced or used by or for the U.S. Department of Defense
(DoD)or for the U.S. Armed Services for national defense and security, including military munitions under the control of the Department of Defense, the U.S. Coast Guard, the National Nuclear Security Administration (NNSA), U.S. Department of Energy (DOE), and National Guard personnel. The term military munitions includes: confined gaseous, liquid, and solid propellants, explosives, pyrotechnics, chemical and riot control agents, smokes, and incendiaries used by DoD components, including bulk explosives and chemical warfare agents, chemical munitions, biological weapons, rockets, guided and ballistic missiles, bombs, warheads, mortar rounds, artillery ammunition, small arms ammunition, grenades, mines, torpedoes, depth charges, cluster munitions and dispensers, demolition charges, nonnuclear components of nuclear weapons, wholly inert ammunition products, and all devices and components of any items listed in this definition. *Miscellaneous parts and/or products* means any part or product made of metal or plastic, or combinations of metal and plastic. Miscellaneous parts and/or products include, but are not limited to, metal and plastic components of the following types of products as well as the products themselves: Motor vehicle parts and accessories for automobiles, trucks, recreational vehicles; automobiles and light duty trucks at automobile and light duty truck assembly plants; boats; sporting and recreational goods; toys; business machines; laboratory and medical equipment; and household and other consumer products. *Miscellaneous surface coating operation* means the collection of equipment used to apply surface coating to miscellaneous parts and/or products or to finish or refinish motor vehicles or mobile equipment including applying cleaning solvents to prepare the surface before coating application, mixing coatings before application, applying coating to a surface, drying or curing the coating after application, and cleaning coating application equipment, but not plating. A single surface coating operation may include any combination of these types of equipment, but always includes at least the point at which a coating material is applied to a given part. A surface coating operation includes all other steps (such as surface preparation with solvent and equipment cleaning) in the affected source where HAP are emitted from the coating of a part. The use of solvent to clean parts (for example, to remove grease during a mechanical repair) does not constitute a miscellaneous surface coating operation if no coatings are applied. A single affected source may have multiple surface coating operations. Coating application with air brush, non-refillable handheld aerosol cans, touch-up markers, or marking pens is not a miscellaneous surface coating operation for the purposes of this subpart. *Mobile equipment* means any device that may be drawn and/or driven on a roadway including, but not limited to, heavy-duty trucks, truck trailers, fleet delivery trucks, buses, mobile cranes, bulldozers, street cleaners, agriculture equipment, motor homes, and other recreational vehicles (including camping trailers and fifth wheels). *Motor vehicle* means any self-propelled vehicle, including, but not limited to, automobiles, light duty trucks, golf carts, vans, and motorcycles. *Non-HAP solvent* means, for the purposes of this subpart, a solvent (including thinners and cleaning solvents) that contain less than 0.1 percent by mass of any individual HAP that is an OSHA-defined carcinogen as specified in 29 CFR 1910.1200(d)(4) and less than 1.0 percent by mass for any other individual HAP. *Paint stripping and/or miscellaneous surface coating source or facility* means any shop, business, location, or parcel of land where paint stripping or miscellaneous surface coating operations are conducted. *Paint stripping* means the removal of dried coatings from wood, metal, plastic, and other substrates. A single affected source may have multiple paint stripping operations. *Painter* means any facility personnel who apply coating materials. *Plastic* refers to substrates containing one or more resins and may be solid, porous, flexible, or rigid. *Protective oil* means organic material that is applied to metal for the purpose of providing lubrication or protection from corrosion without forming a solid film. This definition of protective oil includes, but is not limited to, lubricating oils, evaporative oils (including those that evaporate completely), and extrusion oils. *Solvent* means a fluid containing organic compounds used to perform paint stripping, surface prep, or cleaning of surface coating equipment. *Spot repair* means the repair of the finish on motor vehicles, mobile equipment, or associated parts or components that is less than 1 square foot in area. *Surface preparation* or *Surface prep* means use of a cleaning material on a portion of or all of a substrate prior to the application of a coating. *Transfer efficiency* means the amount of coating solids adhering to the object being coated divided by the total amount of coating solids sprayed, expressed as a percentage. Coating solids means the nonvolatile portion of the coating that makes up the dry film. *Truck bed liner coating* means any coating, excluding color coats, labeled and formulated for application to a truck bed to protect it from surface abrasion. Table 1 to Subpart HHHHHH of Part 63.—Applicability of General Provisions to Subpart HHHHHH of Part 63 Citation Subject Applicable to Subpart HHHHHH Explanation § 63.1(a)(1)-(12) General Applicability Yes § 63.1(b)(1)-(3) Initial Applicability Determination Yes Applicability of subpart HHHHHH is also specified in § 63.11170. § 63.1(c)(1) Applicability After Standard Established Yes § 63.1(c)(2) Applicability of Permit Program for Area Sources Yes § 63.11170(e) of Subpart HHHHHH exempts area sources from the obligation to obtain Title V operating permits. § 63.1(c)(5) Notifications Yes § 63.1(e) Applicability of Permit Program to Major Sources Before Relevant Standard is Set No § 63.11170(e) of Subpart HHHHHH exempts area sources from the obligation to obtain Title V operating permits. § 63.2 Definitions Yes Additional definitions are specified in § 63.11180. § 63.3(a)-(c) Units and Abbreviations Yes § 63.4(a)(1)-(5) Prohibited Activities Yes § 63.4(b)-(c) Circumvention/Fragmentation Yes § 63.5 Construction/Reconstruction of major sources No Subpart HHHHHH applies only to area sources. § 63.6(a) Compliance With Standards and Maintenance Requirements—Applicability Yes § 63.6(b)(1)-(7) Compliance Dates for New and Reconstructed Sources Yes § 63.11172 specifies the compliance dates. § 63.6(c)(1)-(5) Compliance Dates for Existing Sources Yes § 63.11172 specifies the compliance dates. § 63.6(e)(1)-(2) Operation and Maintenance Yes § 63.6(e)(3) Startup, Shutdown, and Malfunction Plan No No startup, shutdown, and malfunction plan is required by subpart HHHHHH. § 63.6(f)(1) Compliance Except During Startup, Shutdown, and Malfunction Yes § 63.6(f)(2)-(3) Methods for Determining Compliance Yes § 63.6(g)(1)-(3) Use of an Alternative Standard Yes § 63.6(h) Compliance With Opacity/Visible Emission Standards No Subpart HHHHHH does not establish opacity or visible emission standards. § 63.6(i)(1)-(16) Extension of Compliance Yes § 63.6(j) Presidential Compliance Exemption Yes § 63.7 Performance Testing Requirements No No performance testing is required by subpart HHHHHH. § 63.8 Monitoring Requirements No Subpart HHHHHH does not require the use of continuous monitoring systems. § 63.9(a)-(d) Notification Requirements Yes § 63.11175 specifies notification requirements. § 63.9(e) Notification of Performance Test No Subpart HHHHHH does not require performance tests. § 63.9(f) Notification of Visible Emissions/Opacity Test No Subpart HHHHHH does not have opacity or visible emission standards. § 63.9(g) Additional Notifications When Using CMS No Subpart HHHHHH does not require the use of continuous monitoring systems. § 63.9(h) Notification of Compliance Status No § 63.11175 specifies the dates and required content for submitting the notification of compliance status. § 63.9(i) Adjustment of Submittal Deadlines Yes § 63.9(j) Change in Previous Information Yes § 63.10(a) Recordkeeping/Reporting—Applicability and General Information Yes § 63.10(b)(1) General Recordkeeping Requirements Yes Additional requirements are specified in § 63.11177. § 63.10(b)(2)(i)-(xi) Recordkeeping Relevant to Startup, Shutdown, and Malfunction Periods and CMS No Subpart HHHHHH does not require startup, shutdown, and malfunction plans, or CMS. § 63.10(b)(2)(xii) Waiver of recordkeeping requirements Yes § 63.10(b)(2)(xiii) Alternatives to the relative accuracy test No Subpart HHHHHH does not require the use of CEMS. § 63.10(b)(2)(xiv) Records supporting notifications Yes § 63.10(b)(3) Recordkeeping Requirements for Applicability Determinations Yes § 63.10(c) Additional Recordkeeping Requirements for Sources with CMS No Subpart HHHHHH does not require the use of CMS. § 63.10(d)(1) General Reporting Requirements Yes Additional requirements are specified in § 63.11176. § 63.10(d)(2)-(3) Report of Performance Test Results, and Opacity or Visible Emissions Observations No Subpart HHHHHH does not require performance tests, or opacity or visible emissions observations. § 63.10(d)(4) Progress Reports for Sources With Compliance Extensions Yes § 63.10(d)(5) Startup, Shutdown, and Malfunction Reports No Subpart HHHHHH does not require startup, shutdown, and malfunction reports. § 63.10(e) Additional Reporting requirements for Sources with CMS No Subpart HHHHHH does not require the use of CMS. § 63.10(f) Recordkeeping/Reporting Waiver Yes § 63.11 Control Device Requirements/Flares No Subpart HHHHHH does not require the use of flares. § 63.12 State Authority and Delegations Yes § 63.13 Addresses of State Air Pollution Control Agencies and EPA Regional Offices Yes § 63.14 Incorporation by Reference Yes Test methods for measuring paint booth filter efficiency and spray gun transfer efficiency in § 63.11173(e)(2) and
(4)are incorporated and included in § 63.14. § 63.15 Availability of Information/Confidentiality Yes § 63.16(a) Performance Track Provisions—reduced reporting Yes § 63.16(b)-(c) Performance Track Provisions—reduced reporting No Subpart HHHHHH does not establish numerical emission limits. [FR Doc. E7-17973 Filed 9-14-07; 8:45 am] BILLING CODE 6560-50-P 72 179 Monday, September 17, 2007 Proposed Rules Part III Environmental Protection Agency 40 CFR Part 63 National Emission Standards for Hazardous Air Pollutants for Iron and Steel Foundries Area Sources; Proposed Rule ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 63 [EPA-HQ-OAR-2006-0359; FRL-8466-7] RIN 2060-AM36 National Emission Standards for Hazardous Air Pollutants for Iron and Steel Foundries Area Sources AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing national emission standards for hazardous air pollutants for two area source categories (iron foundries and steel foundries). The proposed requirements for the two area source categories are combined in one subpart. The proposed rule establishes different requirements for foundries based on size. Small iron and steel foundries would be required to comply with pollution prevention management practices for metallic scrap, the removal of mercury switches, and binder formulations. Large iron and steel foundries would be required to comply with the same pollution prevention management practices as small foundries in addition to emissions limitations for melting furnaces and foundry operations. EPA is also co-proposing two alternatives. One alternative would set a higher size threshold for large foundries. The second alternative proposes that all iron and steel foundries comply with the pollution prevention management practices for metallic scrap, the removal of mercury switches, and binder formulations. The proposed standards reflect the generally achievable control technology and/or management practices for each subcategory. DATES: Comments must be received on or before October 17, 2007, unless a public hearing is requested by September 27, 2007. If a hearing is requested on this proposed rule, written comments must be received by November 1, 2007. Under the Paperwork Reduction Act, comments on the information collection provisions must be received by OMB on or before October 17, 2007. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2006-0359, by one of the following methods: • *www.regulations.gov:* Follow the on-line instructions for submitting comments. • *E-mail: a-and-r-Docket@epa.gov.* • *Fax:*
(202)566-9744. • *Mail:* Area Source NESHAP for Iron and Steel Foundries Docket, Environmental Protection Agency, Air and Radiation Docket and Information Center, Mailcode: 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 20460. Please include a total of two copies. In addition, please mail a copy of your comments on the information collection provisions to the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Attn: Desk Officer for EPA, 725 17th St., NW., Washington, DC 20503. • *Hand Delivery:* EPA Docket Center, Public Reading Room, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC 20460. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-HQ-OAR-2006-0359. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *http://www.regulations.gov,* including any personal information provided, unless the comment includes information claimed to be confidential business information
(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *www.regulations.gov* or e-mail. The *www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *www.regulations.gov,* your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. *Docket:* All documents in the docket are listed in the *www.regulations.gov* index. Although listed in the index, some information is not publicly available, e.g., 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 through *www.regulations.gov* or in hard copy at the NESHAP for Iron and Steel Foundries Area Sources Docket, at the EPA Docket and Information Center, EPA West, Room 3334, 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 Air Docket is
(202)566-1742. FOR FURTHER INFORMATION CONTACT: Mr. Conrad Chin, Sector Policies and Programs Division, Office of Air Quality Planning and Standards (D243-02), Environmental Protection Agency, Research Triangle Park, North Carolina 27711, telephone number:
(919)541-1512; fax number:
(919)541-3207; e-mail address: *chin.conrad@epa.gov.* SUPPLEMENTARY INFORMATION: *Outline.* The information in this preamble is organized as follows: I. General Information A. Does this action apply to me? B. What should I consider as I prepare my comments to EPA? C. Where can I get a copy of this document? D. When would a public hearing occur? II. Background Information for This Proposed Rule A. What is the statutory authority for NESHAP? B. What area source categories are affected by the proposed NESHAP? C. What are the processes and emissions sources at iron and steel foundries? III. Summary of This Proposed Rule A. What are the applicability provisions and compliance dates? B. What emissions standards are in the form of pollution prevention management practices? C. What are the requirements for small iron and steel foundries? D. What are the requirements for large iron and steel foundries? IV. Rationale for This Proposed Rule A. How did EPA subcategorize iron and steel foundries? B. What is the performance of control technologies for metal melting furnaces? C. How did EPA determine the GACT requirements for metal HAP from small iron and steel foundries? D. How did EPA determine the GACT requirements for metal HAP from large iron and steel foundries? E. How did EPA determine the GACT requirements for organic HAP from iron and steel foundries? F. How did EPA select the proposed compliance requirements? V. Summary of Impacts of This Proposed Rule VI. Proposed Exemption From Title V Permit Requirements VII. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review B. Paperwork 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 Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer Advancement Act J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations I. General Information A. Does this action apply to me? The regulated category and entities potentially affected by this proposed action include: Category NAICS code 1 Examples of regulated entities Industry 331511 Iron foundries. Iron and steel plants. Automotive and large equipment manufacturers. 331512 Steel investment foundries. 331513 Steel foundries (except investment). 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 affected by this action. To determine whether your facility would be regulated by this action, you should examine the applicability criteria in 40 CFR 63.10880 of subpart ZZZZZ (National Emission Standards for Hazardous Air Pollutants for Iron and Steel Foundries Area Sources). If you have any questions regarding the applicability of this action to a particular entity, consult either the air permit authority for the entity or your EPA regional representative as listed in 40 CFR 63.13 of subpart A (General Provisions). B. What should I consider as I prepare my comments to EPA? Do not submit information containing CBI to EPA through *www.regulations.gov* or e-mail. Send or deliver information identified as CBI only to the following address: Roberto Morales, OAQPS Document Control Officer (C404-02), Environmental Protection Agency, Office of Air Quality Planning and Standards, Research Triangle Park, North Carolina 27711, Attention Docket ID EPA-HQ-OAR-2006-0359. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. C. Where can I get a copy of this document? In addition to being available in the docket, an electronic copy of this proposed action will also be available on the Worldwide Web
(WWW)through EPA's Technology Transfer Network (TTN). A copy of this proposed action will be posted on the TTN's policy and guidance page for newly proposed or promulgated rules at the following address: *http://www.epa.gov/ttn/oarpg/.* The TTN provides information and technology exchange in various areas of air pollution control. D. When would a public hearing occur? If anyone contacts EPA requesting to speak at a public hearing concerning this proposed rule by September 27, 2007, we will hold a public hearing on October 2, 2007. If you are interested in attending the public hearing, contact Ms. Pamela Garrett at
(919)541-7966 to verify that a hearing will be held. If a public hearing is held, it will be held at 10 a.m. at the EPA's Environmental Research Center Auditorium, Research Triangle Park, NC, or an alternate site nearby. II. Background Information for This Proposed Rule A. What is the statutory authority for NESHAP? Section 112(d) of the Clean Air Act
(CAA)requires us to establish national emission standards for hazardous air pollutants (NESHAP) for both major and area sources of hazardous air pollutants
(HAP)that are listed for regulation under CAA section 112(c). A major source emits or has the potential to emit 10 tons per year
(tpy)or more of any single HAP or 25 tpy or more of any combination of HAP. An area source is a stationary source that is not a major source. Section 112(k)(3)(B) of the CAA calls for EPA to identify at least 30 air toxics that pose the greatest potential health threat in urban areas, and section 112(c)(3) requires EPA to regulate the area source categories that represent 90 percent of the emissions of the 30 “listed” air toxics. We implement these requirements through the Integrated Urban Air Toxics Strategy (64 FR 38715, July 19, 1999). A primary goal of the Strategy is to achieve a 75 percent reduction in cancer incidence attributable to HAP emitted from stationary sources. We added iron foundries and steel foundries to the Integrated Urban Air Toxics Strategy Area Source Category List on June 26, 2002 (67 FR 43113). The inclusion of these two source categories to the section 112(c)(3) area source category list is based on EPA's use of 1990 as the baseline year for that listing. Both of these source categories were listed as contributing a percentage of the total area source emissions for the following “urban” HAP: Compounds of chromium, lead, manganese, and nickel. Under CAA section 112(d)(5), we may elect to promulgate standards or requirements for area sources “which provide for the use of generally available control technologies or management practices by such sources to reduce emissions of hazardous air pollutants.” Additional information on the definition of generally available control technology
(GACT)is found in the Senate report on the legislation (Senate Report Number 101-228, December 20, 1989), which indicates GACT means: * * * methods, practices and techniques which are commercially available and appropriate for application by the sources in the category considering economic impacts and the technical capabilities of the firms to operate and maintain the emissions control systems. Consistent with the legislative history, we can consider costs and economic impacts in determining GACT, which is particularly important when developing regulations for source categories that may have few establishments and many small businesses. Determining what constitutes GACT involves considering the control technologies and management practices that are generally available to the area sources in the source category. We also consider the standards applicable to major sources in the same industrial sector to determine if the control technologies and management practices are transferable and generally available to area sources. In appropriate circumstances, we may also consider technologies and practices at area and major sources in similar categories to determine whether such technologies and practices could be considered generally available for the area source category at issue. Finally, as noted above, in determining GACT for a particular area source category, we consider the costs and economic impacts of available control technologies and management practices on that category. Iron and steel foundries may emit small quantities of mercury compounds, dioxins, and HAP organics from furnaces that melt scrap containing tramp materials such as mercury switches and chlorinated plastics. Organic HAP emissions also result from the use of binder and coating formulations that contain HAP components. As a result, we are proposing pollution prevention management practices for the control of HAP (organics, metal compounds, and mercury) in the charge materials used by iron and steel foundries. Another pollution prevention management practice would require the use of non-methanol binder formulations in certain applications. We are also proposing that foundries keep a record of the annual quantity and composition of each HAP-containing chemical binder or coating material used to make molds and cores. These records may assist area source foundry owners or operators in their pursuit of pollution prevention opportunities. We are proposing these national emission standards in response to a court-ordered deadline that requires EPA to issue standards for 10 source categories listed pursuant to section 112(c)(3) and
(k)by December 15, 2007 ( *Sierra Club* v. *U.S. Environmental Protection Agency,* no. 01-1537, D.D.C., March 2006). Other rulemakings will include standards for the remaining source categories. B. What area source categories are affected by the proposed NESHAP? The Iron Foundries area source category includes any facility engaged in the production of final shape castings from grades of iron. The Steel Foundries area source category includes any facility engaged in producing final shape steel castings by the melting, alloying, and molding of pig iron and steel scrap. The proposed area source NESHAP combines the requirements for both area source categories into one rule because the processes are similar and many foundries produce both iron and steel castings. The U.S. Census Bureau industry statistics indicate that there were 1,015 ferrous foundries operating in the U.S. in 2002. In 1998, we conducted a detailed survey of all known iron and steel foundries and received responses from approximately 600 foundries. This list of 600 foundries was updated in 2006 based on information received from the industry trade organization and through direct contact with foundry owners and operators; numerous foundries closed between 1998 and 2006. Based on this information, we have detailed, process-specific information on approximately 510 iron and steel foundries that are currently operating in the United States. Approximately 80 of these facilities are major sources subject to the NESHAP for Iron and Steel Foundries in 40 CFR part 63, subpart EEEEE. We have identified a total of 427 iron and steel foundries that are area sources and for which we have detailed data. Based on a comparison of the Census Bureaus statistics, the detailed industry survey responses, and the trends in the iron and steel foundry industry, we estimate that there may be up to 300 additional iron and steel foundries operating in the United States for which we do not have information regarding their process operations. We expect that the vast majority of these foundries are small operations with melt production less than 10,000 tpy. Based on the updated industry database, area source iron and steel foundries are located in 43 of the contiguous 48 States; 27 of these States have at least 5 iron and steel foundries. The States that have the greatest number of area source iron and steel foundries include Ohio, Pennsylvania, Wisconsin, and California; each of these States has more than 30 iron and steel foundries. A few of the States have regulations for particulate matter
(PM)that impact iron and steel foundry operations. The State and local regulations often have a sliding scale that allows small melting capacity furnaces to have much higher PM emission per ton of metal melted than larger furnaces. C. What are the processes and emissions sources at iron and steel foundries? Iron and steel foundries manufacture castings by pouring molten iron or steel melted in a furnace into a mold of a desired shape. The primary processing units of interest at iron and steel foundries, because of their potential to generate metal HAP emissions, are metal melting furnaces. HAP metal compounds may also be emitted from a variety of ancillary sources at the foundry such as metal inoculation, pouring, and grinding stations. Iron and steel foundries may also release organic HAP from cooling and shakeout lines, mold and core making lines, and mold and core coating lines, depending on the type of molding system and chemical binders used. There are three primary types of furnaces used to melt scrap metal at iron and steel foundries—cupolas, electric arc furnaces (EAF), and electric induction furnaces (EIF). Cupolas are used exclusively to produce molten iron; EAF are used predominately to produce molten steel, but are used at a few iron and steel foundries to produce molten iron. EIF are used to produce either molten iron or molten steel. Cupolas and EAF typically have larger melting capacities than EIF; the vast majority of area source iron and steel foundries use EIF. Cupolas are continuous blast furnaces. Almost all emissions from a cupola are contained in the flow of air exiting the stack of the furnace, which contains PM and organic compounds in addition to carbon monoxide (CO). The metal HAP in PM emissions from cupolas are primarily compounds of lead and manganese, with other HAP such as compounds of cadmium, chromium, mercury, and nickel present in lesser amounts. These HAP originate as impurities or trace elements in the scrap metal fed to the furnace. Most cupolas control PM emissions by dedicated baghouses or wet scrubbers. EAF and EIF metal melting furnaces operate in batch mode; an operating cycle consisting of charging, melting, backcharging (in some cases), and tapping. PM emissions from EAF and EIF contain similar HAP metal compounds as cupola furnaces, but may also contain significant amounts of compounds of chromium or nickel if stainless steel or nickel alloy castings are produced. Emissions from EIF are often uncontrolled, but baghouses, cyclones, and wet scrubbers are used to control PM emissions from EIF at certain iron and steel foundries. PM emissions from EAF are typically controlled by baghouses. Other potential emission sources of HAP metals at iron and steel foundries include inoculation, pouring, and grinding stations. The total quantity of metal HAP emitted from these sources is small in comparison with the emissions from the metal melting furnaces. Capture and control of inoculation and pouring emissions are difficult due to the need to access the molten metal during these operations. Consequently, inoculation and pouring emissions are typically fugitive emission sources within the foundry. Metal grinding typically generates coarse PM emissions, which are often captured and controlled to improve the workplace environment. This coarse PM does not pose a significant air emission source, as these particles do not generally transport from the foundry building. The majority of organic HAP emissions from iron and steel foundry operations are organic HAP contained in either chemical binder or coating formulations that may partially evaporate or are otherwise emitted during the chemical application process. Organic HAP are also generated by incomplete combustion of organic material in the mold and core sand, such as binder chemicals and seacoal, when molten metal comes into contact with organic materials. III. Summary of This Proposed Rule This section presents a summary of the requirements of this proposed rule and proposed regulatory alternatives. Additional details and the rationale for the proposed requirements are provided in section IV of this preamble. A. What are the applicability provisions and compliance dates? The NESHAP would apply to each new and existing iron and steel foundry that is an area source. The compliance dates for existing area source standards would depend on whether the foundry is determined to be small or large. We are proposing to define a “small iron and steel foundry” as an iron and steel foundry that has an annual metal melt production of 10,000 tons or less. An iron and steel foundry that has an annual metal melt production greater than 10,000 tons would be classified as a large foundry. Each foundry would determine its initial classification as a small or large foundry using production data for calendar year 2008. All foundries would be required to comply with the pollution prevention management practices for metallic scrap, removal of mercury switches, and binder formulations no later than 1 year after the date of publication of the final rule in the **Federal Register** . A large foundry would be required to comply with applicable emissions limitations and operation and maintenance requirements no later than 2 years after initial classification. 1 The owner or operator of a new area source foundry would be required to comply with the rule requirements by the date of publication of the final rule in the **Federal Register** or upon startup, whichever is later. 1 If additional time is needed to install controls, the owner or operator of an existing source can, pursuant to 40 CFR 63.6(i)(4), request from the permitting authority up to a 1-year extension of the compliance date. See CAA section 112(i)(3)(B). After the initial classification, a small foundry that exceeds the 10,000 ton annual production threshold during the preceding calendar year must notify the Administrator and comply with the applicable requirements for a large foundry within 2 years. For example, if a small foundry produces more than 10,000 tons of melted metal from January 1 through December 31, 2009, that foundry would be required to comply with the requirements for a large foundry by January 2012. If a facility is initially classified as a large foundry (or a small foundry becomes a large foundry), that facility must meet the applicable requirements for a large foundry for at least 3 years, even if its annual production falls below 10,000 tons of melted metal. After 3 years, the foundry may reclassify the facility as a small foundry provided the annual production for the preceding calendar year was 10,000 tons of melted metal or less. A large foundry that becomes small must notify the Administrator and comply with the applicable requirements for small foundries immediately. If a large foundry becomes small and then its production exceeds 10,000 for a subsequent calendar year, the foundry must notify the Administrator and comply with the applicable requirements for large foundries immediately. We are also co-proposing an alternative plant size threshold that would define a “small iron and steel foundry” as an iron and steel foundry that has an annual metal melt production of 15,000 tons or less. An iron and steel foundry that has an annual metal melt production greater than 15,000 tons would be classified as a large foundry. The proposed rule requirements under this alternative plant size threshold would not differ from the proposed rule requirements described above. B. What emissions standards are in the form of pollution prevention management practices? 1. Metallic Scrap The proposed material specification requirements are based on pollution prevention and require removal of HAP-generating materials from metallic scrap before melting. All foundries would prepare and operate according to written material specifications for one of two equivalent compliance options. One compliance option would require foundries to prepare and operate pursuant to written material specifications for the purchase and use of only metal ingots, pig iron, slitter, or other materials that do not include metallic scrap from motor vehicle bodies, engine blocks, oil filters, oily turnings, lead components, chlorinated plastics, or free liquids. The term “free liquids” is defined as material that fails the paint filter test by EPA Method 9095B (incorporated by reference—see 40 CFR 63.14) in EPA Publication SW-846, “Test Methods for Evaluating Solid Waste, Physical/Chemical Methods”. The second compliance option would require foundries to prepare and operate pursuant to written material specifications for the purchase and use of scrap that has been depleted (to the extent practicable) of organics and HAP metals in the charge materials used by the foundry. For scrap charged to a scrap preheater or metal melting furnace that is not equipped with an afterburner, the materials specifications must include requirements for metal scrap to be depleted (to the extent practicable) of used oil filters, chlorinated plastic parts, accessible lead-containing components, and free liquids. For scrap charged to a cupola metal melting furnace that is equipped with an afterburner, the material specifications must include requirements for metal scrap to be depleted (to the extent practicable) of chlorinated plastics, accessible lead-containing components, and free liquids. Either material specification option will achieve a similar HAP reduction impact. Foundries may have certain scrap subject to one option and other scrap subject to another option provided the metallic scrap remains segregated until charge make-up. 2. Mercury Switch Removal The proposed standards for mercury are based on pollution prevention and require a foundry owner or operator who melts scrap from motor vehicles either to purchase (or otherwise obtain) the motor vehicle scrap only from scrap providers participating in an EPA-approved program for the removal of mercury switches or to fulfill the alternative requirements described below. Foundries participating in an approved program must maintain records identifying each scrap provider and documenting the scrap provider's participation in the EPA-approved mercury switch removal program. A proposed equivalent compliance option is for the foundry to prepare and operate pursuant to an EPA-approved site-specific plan that includes specifications to the scrap provider that mercury switches must be removed from motor vehicle bodies at an efficiency comparable to that of the EPA-approved mercury switch removal program (see below). An equivalent compliance option is provided for facilities that do not use motor vehicle scrap that contains mercury switches. We expect most facilities that use motor vehicle scrap will choose to comply by purchasing motor vehicle scrap only from scrap providers who participate in a program for removal of mercury switches that has been approved by the Administrator. The National Vehicle Mercury Switch Recovery Program (NVMSRP) 2 would be an approved program under this proposed standard. Facilities choosing to use the NVMSRP as a compliance option would have to assume all of the responsibilities for steelmakers as described in the Memorandum of Understanding. 2 For details see: *http://www.epa.gov/mercury/switch.htm* . In particular, see the signed Memorandum of Understanding. Foundries could also obtain scrap from scrap providers participating in other programs. To do so, the facility owner or operator would have to submit a request to the Administrator for approval to comply by purchasing scrap from scrap providers that are participating in another switch removal program and demonstrate to the Administrator's satisfaction that the program meets the following specified criteria:
(1)There is an outreach program that informs automobile dismantlers of the need for removal of mercury switches and provides training and guidance on switch removal,
(2)the program has a goal for the removal of at least 80 percent of the mercury switches, and
(3)the program sponsor must submit annual progress reports on the number of switches removed and the estimated number of motor vehicle bodies processed (from which a percentage of switches removed is easily derivable). Facilities that purchase motor vehicle scrap from scrap providers that do not participate in an EPA-approved mercury switch removal program would have to prepare and operate pursuant to and in conformance with a site-specific plan for the removal of mercury switches, and the plan must include provisions for obtaining assurance from scrap providers that mercury switches have been removed. The plan would be submitted to the Administrator for approval and would demonstrate how the facility will comply with specific requirements that include:
(1)A means of communicating to scrap purchasers and scrap providers the need to obtain or provide motor vehicle scrap from which mercury switches have been removed and the need to ensure the proper disposal of the mercury switches,
(2)provisions for obtaining assurance from scrap providers that motor vehicle scrap provided to the facility meets the scrap specifications,
(3)provisions for periodic inspection, site visits, or other means of corroboration to ensure that scrap providers and dismantlers are implementing appropriate steps to minimize the presence of mercury switches in motor vehicle scrap,
(4)provisions for taking corrective actions if needed, and
(5)requiring each motor vehicle scrap provider to provide an estimate of the number of mercury switches removed from motor vehicle scrap sent to the facility during the previous year and the basis for the estimate. The Administrator would be able to request documentation or additional information from the owner or operator at any time. The site-specific plan must establish a goal for the removal of at least 80 percent of the mercury switches. All documented and verifiable mercury-containing components removed from motor vehicle scrap would count towards the 80 percent goal. An equivalent compliance option would be provided for foundries that do not utilize motor vehicle scrap that contains mercury. The option would require the facility to certify that the only materials they are charging from motor vehicle scrap are materials recovered for their specialty alloy content, such as chromium in certain exhaust systems, and these materials are known not to contain mercury. Records would be required to document conformance with the material specifications for metallic scrap, restricted scrap, and mercury switches. Each foundry would be required to submit semiannual reports that clearly identify any deviation from the scrap management requirements. These reports can be submitted as part of the semiannual reports required by 40 CFR 63.10 of the general provisions. 3. Binder Formulations For each furfuryl alcohol warm box mold or core making line, new and existing foundries would be required to use a binder chemical formulation that does not use methanol as a specific ingredient of the catalyst formulation. This requirement would not apply to the resin portion of the binder system. This proposed rule includes recordkeeping requirements to document conformance with this requirement. C. What are the requirements for small iron and steel foundries? This proposed rule requires small iron and steel foundries to comply with the pollution prevention management practices for metallic scrap, mercury switches, and binder formulations described above. The owner or operator would be required to submit an initial notification of applicability no later than 120 calendar days after the final rule is published in the **Federal Register** (or within 120 days after the foundry becomes subject to the standard; see 40 CFR 63.9(b)(2)). The foundry would also be required to submit an initial written notification to the Administrator that identifies their facility as a small (or large) foundry; this notification would be due no later than 1 year after the date of publication of the final rule in the **Federal Register** . Subsequent notifications would be required within 30 days for a change in process or operations that reclassifies the status of the facility and its compliance obligations. A small foundry would also be required to submit a notification of compliance status according to the requirements in 40 CFR 63.9(h) of the General Provisions (40 CFR part 63, subpart A). The notification of compliance status would include certifications of compliance for the pollution prevention management practices. This proposed rule also requires small foundries to keep records of monthly metal melt production and report any deviation from the pollution prevention management practices in the semiannual report required by 40 CFR 63.10 of the NESHAP general provisions. We are also proposing to require small foundries to keep a record of the annual quantity and composition of each HAP-containing chemical binder or coating material used to make molds and cores. These records must be copies of purchasing records, Material Data Safety Sheets, or other documentation that provide information on binder materials. The purpose of this requirement is to encourage foundries to investigate and use nonHAP binder and coating materials wherever feasible. D. What are the requirements for large iron and steel foundries? This proposed NESHAP requires large iron and steel foundries to comply with the pollution prevention management practices described in section III.B of this preamble. In addition, large iron and steel foundries would be required to operate capture and collection systems for metal melting furnaces and comply with emissions limitations, operation and maintenance, monitoring, testing, and recordkeeping and reporting requirements. We are also co-proposing an alternative under which we would not subcategorize between large and small foundries. Under this alternative, all foundries would be required to comply with the pollution prevention management practices described in section III.B of this preamble, but no foundries would be subject to the requirements described in section III.D of this preamble, such as the requirements for capture and collection systems, emissions limitations, and associated monitoring, recordkeeping, and reporting. 1. Emissions Limitations Large foundries would be required to comply with emissions limits for metal melting furnaces. A metal melting furnace includes cupolas, EAF, EIF, or other similar devices (excluding holding furnaces, argon oxygen decarburization vessels, or ladles that receive molten metal from a metal melting furnace, to which metal ingots or other materials may be added to adjust the metal chemistry). The proposed emissions limits for metal melting furnaces are: • 0.8 pounds of PM per ton of metal melted (lb/ton of PM) or 0.06 pounds of total metal HAP per ton of metal melted (lb/ton of total metal HAP) for each metal melting furnace at an existing iron and steel foundry. • 0.1 lb/ton of PM or 0.008 lb/ton of total metal HAP for each metal melting furnace at a new iron and steel foundry. The owner or operator of a foundry may choose to comply with these emissions limits utilizing emissions averaging as specified in this proposed rule so that the production-weighted average emissions from all metal melting furnaces at the foundry for any calendar month meet the applicable emissions limit. Operating parameter limits would apply to the control device applied to emissions from a metal melting furnace. For a wet scrubber, a foundry would maintain the 3-hour average pressure drop and scrubber water flow rate at or above the minimum levels established during the initial or subsequent performance test. For an electrostatic precipitator, a foundry would maintain the voltage and secondary current (or total power input) to the control device at or above the level established during the initial or subsequent performance test. For a baghouse, a foundry would maintain the pressure drop across each baghouse cell within the range established during the initial or subsequent performance test. The proposed NESHAP also includes a fugitive emissions opacity limit of 20 percent for each building or structure housing iron and steel foundry operations. Foundry operations covered by the fugitive emissions opacity limit would include all process equipment and practices used to produce metal castings for shipment including mold or core making and coating; scrap handling and preheating; metal melting and inoculation; pouring, cooling, and shakeout; shotblasting, grinding and other metal finishing operations; and sand handling. 2. Operation and Maintenance Requirements The owner or operator would be required to prepare and operate by an operation and maintenance (O&M) plan for each control device used to comply with the standards. Any other O&M, preventative maintenance, or similar plan which satisfies the specified requirements could be used to comply with the requirements for an O&M plan. 3. Monitoring Requirements We are proposing that large iron and steel foundries install and operate continuous parameter monitoring systems
(CPMS)to measure and record operating parameters of wet scrubbers used to comply with PM or total metal HAP emissions limit. For electrostatic precipitators, the owner or operator may measure and record the voltage and secondary current (or total power input) using a CPMS or manually record the parameter(s) at least once a shift. For baghouses, the owner or operator of an existing foundry would conduct periodic baghouse inspections and manually check and record the pressure drop across each baghouse cell at least once a day or measure and record the pressure drop using a CPMS. All CPMS would be operated and maintained according to the O&M plan. As an alternative means of compliance, the owner or operator of an existing area source can use a bag leak detection system to demonstrate continuous compliance with a PM or total metal HAP emissions limit. Bag leak detection systems are required for positive or negative pressure baghouses at a new area source foundry. If a bag leak detection system is used, the owner or operator must prepare and operate pursuant to a monitoring plan for each bag leak detection system; specific requirements for the plan are included in this proposed rule. For additional information on bag leak detection systems that operate on the triboelectric effect, see “Fabric Filter Bag Leak Detection Guidance”, U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards, September 1997, EPA-454/R-98-015, National Technical Information Service
(NTIS)publication number PB98164676. This document is available from the NTIS, 5385 Port Royal Road, Springfield, VA 22161. Monthly inspections of the equipment that is important to the performance of the capture system are also required. The owner or operator must repair any defect or deficiency in the capture system before the next scheduled inspection and record the results of each inspection and the date of any repair. If a large foundry complies with the emissions limits for furnaces using emissions averaging, the proposed NESHAP requires the owner or operator to demonstrate compliance on a monthly basis. The facility would determine the weighted average emissions from all metal melting furnaces at the foundry using an equation included in this proposed rule. The owner or operator would maintain records of the monthly calculations and report any exceedance in the semiannual report. 4. Performance Tests We propose that each large foundry conduct a performance test to demonstrate initial compliance with the PM or total metal HAP emissions limit and the opacity limit for fugitive emissions within 180 days of promulgation and submit the results in the notification of compliance status. In lieu of conducting an initial performance test to demonstrate compliance with the applicable PM or total metal HAP limit for metal melting furnaces, the owner or operator of an existing foundry would be allowed to submit the results of a previous performance test provided the test was conducted within the last 5 years using the methods and procedures specified in the rule and either no process changes have been made since the test, or the test results reliably demonstrate compliance despite process changes. If the owner or operator does not have a previous performance test that meets the rule requirements, a test must be conducted within 180 days of the compliance date. Performance tests would be required for all new area source foundries. Subsequent tests for furnaces would be required every 5 years and each time an operating limit is changed or a process change occurs that is likely to increase metal HAP emissions from the furnace. Provisions are included in this proposed rule for determining compliance with PM or total metal HAP emissions limits in a lb/ton of metal melted format and for establishing control device operating parameter limits. This proposed rule also includes requirements to perform visual opacity testing every 6 months. This proposed rule describes the methods and requirements for these semiannual opacity observations. 5. Recordkeeping and Reporting Requirements The owner or operator would be required to submit an initial notification that identifies the facility as a large (or small) foundry. In addition, the owner or operator would be required to comply with certain requirements of the General Provisions (40 CFR part 63, subpart A), which are identified in Table 3 of this proposed rule. The General Provisions include specific requirements for notifications, recordkeeping, and reporting, including provisions for a startup, shutdown, and malfunction plan/reports required by 40 CFR 63.6(e). In addition to the records required by 40 CFR 63.10, all foundries would be required to maintain records to document conformance with the pollution prevention management practice emissions standards for metallic scrap, mercury switch removal, and binder formulations as well as to maintain records of annual melt production and corrective action(s). Large foundries must also prepare and operate according to the O&M plan and record monthly compliance calculations for metal melting furnaces that comply using emissions averaging, if applicable. The owner or operator would submit semiannual reports that provide summary information on excursions or exceedances (including the corrective action taken), monitor downtime incidents, and deviations from management practices or O&M requirements according to the requirements in 40 CFR 63.10. We are also proposing to require all foundries to keep a record of the annual quantity and composition of each HAP-containing chemical binder or coating material used to make molds and cores. These records must be copies of purchasing records, Material Data Safety Sheets, or other documentation that provide information on binder materials. The purpose of this requirement, among other things, is to encourage foundries to investigate and use nonHAP binder and coating materials wherever feasible. IV. Rationale for This Proposed Rule A. How did EPA subcategorize iron and steel foundries? As part of the GACT analysis, we considered whether there were differences in processes, sizes, or other factors affecting emissions and control technologies that would warrant subcategorization. Under section 112(d)(1) of the CAA, EPA “may distinguish among classes, types, and sizes within a source category or subcategory in establishing such standards * * *”. In our review of the available data, we observed significant differences between iron and steel foundries based on the total melt production capacities of the foundry. For example, foundries with melt production quantities of 10,000 tpy or less represented over 70 percent of the facilities, but only 25 percent of the nationwide emissions. Small foundries are much more likely to use EIF; 77 percent of all area source EIF are at foundries with production of 10,000 tpy or less. On the other hand, only 37 percent of the cupolas and 28 percent of the EAF at area sources are at foundries with production of 10,000 tpy or less. Based on these differences, we determined that subcategorization of iron and steel foundries by size was justified. We evaluated the impacts of requiring all metal melting furnaces to operate with either a wet scrubber or baghouse control system. Under this scenario, foundries with melt capacities of 10,000 tpy or less incurred 74 percent of the annualized control costs and represented over 99 percent of the foundries with annualized costs that exceeded 3 percent of sales; however, these foundries represented only 31 percent of the air emission reductions. We also evaluated the relative proportion of costs and emission reductions at size thresholds of 5,000, 15,000, and 20,000 tpy melting capacity. At lower capacity thresholds, the control costs for foundries above the threshold increased significantly while the emission reductions increased only slightly. At higher capacity thresholds, the control costs for foundries above the threshold decreased but the emissions reductions also decreased significantly. Detailed information about the costs and emission reductions at these other size thresholds is available in the docket (EPA-HQ-OAR-2006-0359). In light of the relative emissions reductions and costs for various thresholds, we determined that a 10,000 tpy facility-wide melting capacity was the appropriate threshold for subcategorizing large and small foundries. Consequently, we are proposing to subcategorize the iron and steel foundry industry into “small” and “large” foundries. A “small iron and steel foundry” would be defined as an iron and steel foundry that has an annual melt production of 10,000 tpy or less. A “large iron and steel foundry” would be defined as an iron and steel foundry that has an annual melt production greater than 10,000 tpy. It should be noted that this designation of small and large foundries is in no way related to the definition of “small entity” under the Regulatory Flexibility Act. Furthermore, the term “large” is relative; large area source foundries may be quite small compared to foundries that are subject to the major source rule (40 CFR part 63, subpart EEEEE). In light of limits on our information about costs, HAP emissions reductions, and foundry operations, EPA is evaluating whether, and how, to subcategorize the source categories, and what GACT is for the source categories or subcategories. Therefore, EPA is co-proposing two alternatives along with the 10,000 tpy threshold for large foundries. Under the first alternative, the threshold for large foundries would be set at 15,000 tpy. Under the second alternative, there would be no subcategorization, and all sources would be required to comply with the pollution prevention management practices described in section III.B of this preamble. We also evaluated the different types of furnaces and are considering subcategorization based on furnace type. As the different types of melting furnaces operate differently and have their own emission characteristics, subcategorization by the type of furnace would also be justified. We subcategorized by furnace type when we promulgated the major source Iron and Steel Foundries NESHAP (40 CFR part 63 subpart EEEEE). EAF and cupolas tend to be used at the larger foundries, whereas EIF are prevalent at the smaller foundries. Additionally, EAF and cupolas tend to have higher melting capacities than EIF, especially at the larger foundries. For example, 88 percent of all cupolas and EAF at foundries with melt production greater than 10,000 tpy have metal melting capacities of 4 tons per hour
(tph)or greater, whereas only 36 percent of EIF at these large foundries have metal melting capacity of 4 tph or greater. Based on the abundance of very small EIF melting furnaces, even at large foundries, we are also considering subcategorizing the EIF metal melting furnaces into “low capacity EIF” and “high capacity EIF.” High capacity EIF would be subject to requirements similar to the large foundry requirements in section III.D of this preamble, and low capacity EIF would be treated similarly to small foundries under this proposal. The threshold for classification as a high capacity EIF would be 4 or 5 tph. We request comment, along with supporting documentation, on these and other possible alternative subcategories based on plant size or furnace type. Supporting documentation must be provided in sufficient detail to allow characterization of the quality and representativeness of the data. We specifically request comment on the appropriateness of using a 5,000, 10,000, 15,000, or 20,000 tpy melting capacity as the plant size threshold for subcategorization. We also request comment on subcategorizing the melting furnaces by furnace type and size. Specifically, we request comment along with supporting documentation on subcategorizing EIF into low and high capacity furnaces using either a 4 or 5 tph melting capacity threshold. Based on the comments received, we may elect to subcategorize between large and small iron and steel foundries, between furnaces using alternative size thresholds, a combination of foundry size and furnace type, or we may elect not to subcategorize at all. B. What is the performance of control technologies for metal melting furnaces? Facility-specific and process-specific data were available for iron and steel foundries from a survey of the industry conducted in 1998. A total of 595 survey responses were originally received; the responses included the types of process units used at each foundry, the type of control device used for each process, and key design parameters of the processes and control systems. These data were updated based on additional data collected through direct facility contacts and through information provided by the industry trade organizations. After updating the data base, we have detailed information for 427 iron and steel foundries that are currently operating and that are area sources (i.e., that are not subject to the NESHAP for Iron and Steel Foundries in 40 CFR part 63, subpart EEEEE, which applies to major sources). Although this data base likely does not include every foundry in the United States, it includes a significant majority of the foundries, especially those foundries with melt production quantities of 5,000 tpy or more, and we believe it is reasonably representative of the industry's current practices and controls. In addition to the process design information, we requested foundries that had conducted emissions tests on their foundry processes and/or control systems to submit the source test results and supporting information. Performance data were available for over 70 furnaces. Although most of these data are for larger (often major source) iron and steel foundries, these data provide a reasonable basis for assessing the performance of various control approaches for metal melting furnaces. Metal HAP compounds from iron and steel foundries are emitted primarily from metal melting furnaces. These metal HAP compounds are released as filterable PM emissions, and conventional PM control systems can be used to significantly reduce the metal HAP emissions from iron and steel foundries. Fabric filters (baghouses or cartridge filters) and wet scrubbers are the predominant technologies used to control PM from metal melting furnaces. Fabric filter systems generally achieve higher PM emissions reductions than wet scrubbers, as applied in the iron and steel foundry industry. Fabric filter systems generally achieve 98 to 99.9 percent control efficiency. PM wet scrubbers as used in the iron and steel foundry industry are typically venturi-type wet scrubbers that achieve a PM reduction efficiency of 85 to 95 percent. Electrostatic precipitators and cyclone separators are also used at some iron and steel foundry operations to control metal melting furnace emissions. We have test data for only one ESP; its performance is comparable to the performance of wet scrubbers. Cyclone separators are used in limited applications, primarily for EIF; emission reduction efficiencies of cyclone separators are expected to be between 40 and 70 percent. Our review of the emissions test data for metal melting furnaces showed that although the different types of melting furnaces have widely different uncontrolled emissions, the controlled emissions from the different types of metal melting furnaces were consistent between the different types of furnaces when expressed in terms of pounds of PM emitted per ton of metal charged (lb/ton). After considering the control technologies in use at area source foundries, we considered setting an emission limit at 0.8 or 0.3 lb/ton of PM (see section IV.D of this preamble for our analysis of these emission limit options). The 0.8 lb/ton of PM limit is based on the performance of a well-designed and operated wet scrubber system at area source iron and steel foundries, taking into account process and control system variability. The 0.3 lb/ton of PM limit is based on the performance of a reasonably-designed and operated fabric filter control system at area source iron and steel foundries, taking into account process and control system variability. For new sources, we also considered a PM emission limit of 0.1 lb/ton based on the performance of the best fabric filter control systems at existing large area source iron and steel foundries, taking into account process and control system variability. In addition to these control options that are based on add-on control systems, we identified scrap management practices as a potential means of reducing HAP emissions from the metal melting furnaces. This is a pollution prevention measure that can either be applied in conjunction with add-on controls or be applied when no add-on controls are used. By reducing the amount of tramp metals and other materials in the scrap feed to the furnace, emissions of both metal HAP compounds and organic HAP can be reduced. However, it should be noted that the emissions reductions achievable by implementing scrap management as the primary HAP reduction activity are not as great as when applied in conjunction with add-on controls. C. How did EPA determine the GACT requirements for metal HAP from small iron and steel foundries? Based on the considerations of what constitutes GACT as described in section II.A of this preamble, we identified and evaluated three emissions control options for small iron and steel foundries. Option 1 is the use of scrap management practices alone. Option 2 is the use of a management system that includes scrap management practices and developing and implementing operation and maintenance plans, and meeting building opacity limits. Thus, Option 2 is aimed at reducing emissions of ancillary sources at the iron and steel foundry in addition to the metal melting furnaces. Option 3 is the enhanced management system in conjunction with a PM emissions limit of 0.8 lb/ton for the metal melting furnaces. Table 1 of this preamble summarizes the impacts of these candidate control options for iron and steel foundries having a production capacity of 10,000 tpy or less. Table 1.—National Impacts of GACT Options for Existing Iron and Steel Foundries With Annual Melt Production of 10,000 tpy or Less 1 Option Total capital cost, $ (millions) Total annual cost, $/yr (millions) Emissions reduction, (tons PM/yr) Cost effectiveness ($/ton PM) Overall Incremental Number of foundries impacted greater than 3% of revenues
(A)Impacts in terms of metal HAP emissions reduction 1 0.19 0.75 250,000 0 2 0.50 1.35 370,000 520,000 8 3 135 29.3 22.6 1,300,000 1,400,000 148 Table 1. National Impacts of GACT Options for Existing Iron and Steel Goundries with Annual Melt Produciton of 10,000 tpy or Less 1 Option Total capital cost, $ (millions) Total annual cost, $/yr (millions) Emission reductions, (tons metal HAP/year) Cost effectiveness ($/ton mental HAO) Overall Incremental Number of foundaries impacted greater than 3% of revenues
(B)Impacts in terms of PM emissions reduction 1 0.19 16 12,000 0 2 0.50 36 14,000 16,000 8 3 135 29.3 480 61,000 65,000 148 1 Costs are in 2005 dollars. The results for Option 3, as presented in Table 1 of this preamble, indicate that add-on controls are not cost-effective and impose undue economic burden for the small iron and steel foundry subcategory. While the cost-effectiveness values for the two management practice options are similar, eight foundries (all of which are small entities) have cost impacts greater than 3 percent of their revenue under Option 2. Although not presented in Table 1 of this preamble, the management practices represented by Option 2 also impose compliance costs that are between 1 and 3 percent of sales for an additional 13 iron and steel foundries, whereas the scrap management practices represented by Option 1 do not result in any impacts that exceed 1 percent of revenue. Furthermore, the PM emitted from the ancillary sources has lower content of HAP metal compounds than the PM associated with the metal melting furnaces. Therefore, the management practices in Option 2 are relatively less effective at reducing emissions of HAP metal compounds as compared to Option 1. The additional emissions reductions achieved by the management system under Option 2 do not justify the additional costs and economic burden. Therefore, we are proposing GACT for emissions of metal HAP compounds from small area source foundries is scrap management practices. See section III.B of this preamble for a summary of proposed scrap management practices. D. How did EPA determine the GACT requirements for metal HAP from large iron and steel foundries? 1. Existing Sources Based on the considerations of what constitutes GACT as described in section II.A of this preamble, we identified and evaluated four control options for existing large iron and steel foundries. Option 1 is the use of a management system that includes scrap management practices, developing and implementing operation and maintenance plans and start-up, shutdown, and malfunction plans, and meeting building opacity limits. Option 2 is the management system in conjunction with a PM emissions limit of 0.8 lb/ton for the metal melting furnaces. Option 3 is the management practices in conjunction with a PM emissions limit of 0.3 lb/ton. Table 2 of this preamble presents the national impacts of control options for existing large iron and steel foundries with a production capacity greater than 10,000 tpy. Table 2.—National Impacts of GACT Options for Existing Iron and Steel Foundries With Annual Melt Production Greater Than 10,000 tpy 1 Option Total capital cost, $ (millions) Total annual cost, $/yr (millions) Emissions reduction, (tons PM/yr) Cost effectiveness ($/ton PM) Overall Incremental Number of foundries impacted greater than 3% of revenues
(A)Impacts in terms of metal HAP emissions reduction 1 0.90 3.7 240,000 0 2 47 10.3 34 300,000 310,000 1 3 91 15.5 43 360,000 580,000 2 Table 2.—National Impacts of GACT Options for Existing Iron and Steel Founries with Annual Melt Production Greater than 10,000 TYP 1 Option Total capital cost, $ (millions) Total annual cost, $/yr (millions) Emissions reduction, (tons metal HAP/yr) Cost effectiveness ($/ton metal HAP) Overall Incremental Number of foundries impacted greater than 3% of revenues
(B)Impacts in terms of PM emissions reduction 1 0.90 88 10,000 0 2 47 10.3 1,060 9,700 9,700 1 3 91 15.5 1,210 12,800 35,000 2 1 Costs are in 2005 U.S. dollars. As seen in Table 2 of this preamble, none of the control options evaluated for the large iron and steel foundry subcategory resulted in a substantial number of foundries with economic impacts exceeding 3 percent of revenues. The management practices represented in Option 1 are cost-effective for large iron and steel foundries; however, Option 1 effects minimal emissions reductions. Option 2 (an emissions limit of 0.8 lb/ton) has similar cost-effectiveness as Option 1, but achieves much greater emissions reductions, primarily by requiring controls on previously uncontrolled furnaces. The incremental cost-effectiveness when going from Option 2 to Option 3 is poor, indicating that it is not cost-effective to require existing large iron and steel foundries to achieve a 0.3 lb/ton or lower PM emission limit. This poor incremental cost-effectiveness results because a significant percentage of foundries would have to retrofit their existing control system under Option 3, and the cost-effectiveness of this retrofit is very poor. Consequently, when subcategorizing foundries by production thresholds, we are proposing Option 2 (management systems and PM emissions limit of 0.8 lb/ton) as GACT for existing large iron and steel foundries. 2. New Sources The available emissions data for existing large area source iron and steel foundries were reviewed. The best-performing metal melting controls for this subcategory were all baghouses, regardless of furnace type. For each type of metal melting furnace, the best-performing baghouse control systems achieved a PM emission limitation of 0.1 lb/ton. Therefore, when subcategorizing foundries by production thresholds, we are proposing that GACT is a PM emission limit of 0.1 lb/ton for new large iron and steel foundries. E. How did EPA determine the GACT requirements for organic HAP from iron and steel foundries? Iron and steel foundries were not specifically listed under the Integrated Urban Air Toxics Strategy for any organic HAP. However, iron and steel foundries have the potential to emit organic HAP from a variety of sources at the facility, including the metal melting furnace; pouring, cooling, and shake-out lines; mold and core making, and mold and core coating. Reductions in the organic content of binder systems, for example, can reduce emissions from both mold and core making as well as from pouring, cooling, and shake-out. We reviewed pollution prevention measures applicable to reduce organic HAP. Preventing pollution before it is generated is environmentally sound and preferable to controlling emissions after they are created. Low emitting binders and other pollution prevention technologies have demonstrated reductions in organic HAP emissions. However, there is no pollution prevention technology that is universally applicable for all iron and steel foundries due to the vast variety of casting production requirements encountered by the industry. Each technology must be evaluated on a case-by-case basis. This proposed area source rule provides an opportunity for EPA to promote pollution prevention. We identified several pollution prevention measures which are feasible and appropriate for this industry. For example, the proposed scrap management program can also reduce emissions of organic HAP by ensuring that the scrap is depleted of chlorinated plastics at all times and that the scrap is depleted, to the extent practicable, of post-consumer oil filters and other oily material unless an adequate organic control system is used (e.g., an afterburner on a cupola). Additionally, we identified an alternative furfuryl alcohol warm box catalyst system that does not contain methanol. This alternative catalyst formulation requires no equipment re-tooling and provides performance comparable to the methanol-containing formulation. Therefore, we are proposing that GACT for iron and steel foundries include the organic-related provisions in the scrap management program for all iron and steel foundries and the use of a furfuryl alcohol warm box catalyst system that does not contain methanol for foundries that use a furfuryl alcohol warm box binder system. EPA encourages the area source foundries to learn about and investigate pollution prevention
(P2)methods and technologies that may reduce or eliminate organic HAP emissions, while maintaining their quality, productivity, and competitiveness. Therefore, as part of this proposed rule, EPA is also requiring foundries to keep copies of purchasing records, Material Safety Data Sheets, or other documentation that provides information on liquid or solid binder materials. Among other things, these records may assist area source foundry owners or operators in their pursuit of cost-effective pollution prevention opportunities. F. How did EPA select the proposed compliance requirements? We are proposing testing, monitoring, notification, and recordkeeping requirements needed to ensure compliance with the rule requirements. These provisions include scaled-down versions of requirements that have been applied to several industries, including larger iron and steel foundries that are subject to the standards for major sources in 40 CFR part 63, subpart EEEEE. In selecting these requirements, we identified the minimum information necessary to ensure emissions controls are maintained and operated properly on a continuing basis (Option 1). We also evaluated more enhanced monitoring requirements, such as the use of bag leak detection systems, that were required in 40 CFR part 63, subpart EEEEE (Option 2). The enhanced monitoring requirements under Option 2 increased by three the number of foundries impacted greater than 1 percent of revenue and caused one additional small business foundry to have compliance costs that exceed 3 percent of revenue. In light of the additional burdens that enhanced monitoring would pose for small foundries, we are not proposing enhanced monitoring requirements. The selected monitoring option ensures compliance with the requirements of this proposed rule without posing a significant additional burden for foundries that must implement them. We are allowing up to 1 year for all existing area source foundries to comply with the pollution prevention management practices and up to 2 years after initial classification for large foundries to comply with the emissions limitations, and operation and maintenance requirements. If a small foundry exceeds the annual metal melt production threshold for a large foundry for the first time, the foundry would be required to submit a notification of reclassification within 30 days and comply with the requirements for large iron and steel foundries within 2 years. A facility that is classified as a large foundry must comply with the requirements for a large foundry for at least 3 years before reclassifying the facility as a small facility, even if the annual production falls below 10,000 tons of melted metal. All foundries would be required to provide written notification to the Administrator of a change in compliance status. Because of the uncertainty in the emissions control status of existing facilities, we are proposing that each foundry conduct a performance test for each metal melting furnace (or group of all metal melting furnaces) subject to the PM or total metal HAP emissions limit and each building or structure subject to the opacity limit for fugitive emissions. Existing foundries may choose to use the results of a previous performance test that demonstrates compliance with the applicable PM or total metal HAP emissions limit for a metal melting furnace or group of all metal melting furnaces instead of conducting a new test, provided the previous test meets the rule requirements. This proposed rule requires the owner or operator to provide written notification of the intent to use the previous test data, including (if applicable) information demonstrating that the test data is representative of current operations and processes. This notification would be submitted no later than 60 days after the compliance date for an existing foundry in order that the foundry could still conduct a test within 180 days of the compliance date if the regulatory agency determines a new test is needed. Subsequent performance tests would be required every 5 years and each time the foundry changed an operating limit or made a process change likely to increase metal HAP emissions. We are proposing subsequent tests because the proposed monitoring requirements do not provide a direct measurement of emissions. We are proposing opacity observations every 6 months to demonstrate compliance with the fugitive emissions limit. We evaluated alternative requirements, including equipment inspection and visible emission observations. These alternatives were not well correlated with the 20 percent building opacity emissions limit, and were therefore rejected. We request comment on alternative compliance requirements for the building opacity limit and the appropriate frequency of these observations. Alternatives to Method 9 observations must indicate how the suggested alternative can be related to the 20 percent opacity limit. The proposed NESHAP allows CPMS for the control devices. We are proposing to require bag leak detection systems for baghouses used at new area sources; these are typical monitoring requirements at facilities of the size and complexity of iron and steel foundries area sources. Inspection and repair requirements are also proposed to ensure proper operation and maintenance of capture systems. We are also proposing to apply the notification, testing, monitoring, operation and maintenance, recordkeeping, and reporting requirements in the part 63 General Provisions (40 CFR part 63, subpart A). The General Provisions are necessary for effective application of the standard for existing and new area sources. In the notification of compliance status required by 40 CFR 63.9(h), the owner or operator would certify that specified equipment has been installed and is operating for each regulated emissions source, the facility has complied with specific equipment standards and management practices, written plans have been prepared, and whether the plant is certifying compliance with emissions limits based on a previous performance test. Periodic startup, shutdown, and malfunction reports must be submitted as required by 40 CFR 63.6, and semiannual reports must be submitted as required by 40 CFR 63.10. The proposed NESHAP also includes recordkeeping requirements to supplement the requirements in 40 CFR 63.10. These records are needed for EPA to determine compliance with specific rule requirements. The testing, monitoring, notification, recordkeeping, and reporting requirements are necessary and sufficient to ensure compliance with the proposed requirements for existing and new area sources. V. Summary of Impacts of This Proposed Rule We estimate that the proposed standard (10,000 tpy production capacity threshold) will reduce emissions of HAP metal compounds by 35 tpy and will reduce PM emissions by 1,074 tpy from the baseline. Additionally, the proposed standard is expected to reduce emissions of organic HAP by 32 tpy. The total capital cost of the proposed standard is estimated at $47 million. The annual operating, maintenance, monitoring, recordkeeping, and reporting costs of the proposed standard are estimated at $6.1 million per year. The total annualized cost of the proposed standard, including the annualized cost of capital equipment, is estimated at $10.5 million. Under the co-proposed alternative that sets a higher size threshold for large foundries, the estimated emission reductions from baseline are 29 tpy of metal HAP, 32 tpy of organic HAP, and 905 tpy of PM; the total capital cost of this alternative is estimated at $34 million and the total annualized cost of this alternative, including the annualized cost of capital equipment, is estimated at $7.9 million. Under the co-proposed alternative that does not subcategorize large foundries, the estimated emission reductions from baseline are 3.4 tpy of metal HAP, 32 tpy of organic HAP, and 64 tpy of PM; there are no capital costs under this alternative and the total annualized cost is estimated at $1.0 million. Additional information on our impact estimates on the sources is available in the docket. (See Docket Number EPA-HQ-OAR-2006-0359.) The proposed standard is estimated to impact a total of 427 area source iron and steel foundries. When subcategorizing foundries by production thresholds, we estimate that 96 to 124 of these foundries will be large iron and steel foundries and 303 to 331 foundries will be small iron and steel foundries (depending on the production threshold). Approximately 45 percent of the large iron and steel foundries are owned by small entities whereas 85 percent of the small iron and steel foundries are owned by small entities. The secondary impacts would include solid waste generated as a result of the PM emissions collected and energy impacts associated with operation of control devices. At a 10,000 tpy production capacity threshold, we estimate that 1,110 tpy of solid waste would be generated and an additional 4,490 megawatts per hour (MW-hr) of electrical energy would be consumed each year as a result of the proposed standard. Under the co-proposed alternative that sets a higher size threshold for large foundries, we estimate that 930 tpy of solid waste would be generated and an additional 3,680 megawatts per hour (MW-hr) of electrical energy would be consumed each year. Under the co-proposed alternative that does not subcategorize large foundries, there are no secondary impacts. VI. Proposed Exemption From Title V Permit Requirements Section 502(a) of the CAA provides that the Administrator may exempt an area source category from title V if he determines that compliance with title V requirements is “impracticable, infeasible, or ” on the area source category. In December 2005, in a national rulemaking, EPA interpreted the term “unnecessarily burdensome” in CAA section 502 and developed a four-factor test for determining whether title V is unnecessarily burdensome for a particular source category, such that an exemption from title V is appropriate. See 70 FR 75320, December 19, 2005 (“Exemption Rule”). The four factors that EPA identified in the Exemption Rule for determining whether title V is “unnecessarily burdensome” on a particular source category include:
(1)Whether title V would result in significant improvements to the compliance requirements, including monitoring, recordkeeping, and reporting, that are proposed for an area source category (70 FR 75323);
(2)whether title V permitting would impose significant burdens on the area source category and whether the burdens would be aggravated by any difficulty the sources may have in obtaining assistance from permitting agencies (70 FR 75324);
(3)whether the costs of title V permitting for the area source category would be justified, taking into consideration any potential gains in compliance likely to occur for such sources (70 FR 75325); and
(4)whether there are implementation and enforcement programs in place that are sufficient to assure compliance with the NESHAP for the area source category, without relying on title V permits (70 FR 75326). In discussing the above factors in the Exemption Rule, we explained that we considered on “a case-by-case” basis the extent to which one or more of the four factors supported title V exemptions for a given source category, and then we assessed whether considered together those factors demonstrated that compliance with title V requirements would be ‘unnecessarily burdensome’ on the category, consistent with section 502(a) of the CAA. See 70 FR 75323. Thus, in the Exemption Rule, we explained that not all of the four factors must weigh in favor of exemption for EPA to determine that title V is unnecessarily burdensome for a particular area source category. Instead, the factors are to be considered in combination, and EPA determines whether the factors, taken together, support an exemption from title V for a particular source category. In the Exemption Rule, EPA also indicated that, consistent with the guidance provided by the legislative history of section 502(a), EPA would consider whether exempting the area source category would adversely affect public health, welfare or the environment in deciding whether to exempt an area source category. See 70 FR 15254-15255. We applied the four-factor test to determine whether title V is unnecessarily burdensome on the Iron Foundries and Steel Foundries area source categories. Starting with the first factor, which is to determine whether permits would result in significant improvements to the compliance requirements for the area source categories, we compared the title V monitoring, recordkeeping, and reporting requirements of title V permitting rules (40 CFR 70.6 and 40 CFR 71.6) to those requirements in the proposed NESHAP. As noted above (see section III of this preamble), this proposed rule establishes different monitoring, recordkeeping, and reporting requirements for small and large foundries. Specifically, this proposed rule requires all foundries to comply with the pollution prevention management practices for metallic scrap, mercury switches, and binder formulations. All foundries would be required to keep records of information that demonstrate compliance with the management practices for metallic scrap and mercury switch removal requirements. Records to document the use of binder chemical formulations that do contain methanol as a specific ingredient of the catalyst formulation for each furfuryl alcohol warm box or core making line may be the Material Data Safety Sheet (provided it contains appropriate information), a certified product data sheet, or a manufacturer's HAP data sheet. We are proposing that the area source facilities keep records of the annual quantity and composition of each HAP-containing chemical binder or coating material used to make molds and cores. This proposed rule also requires all foundries to keep monthly production records to document annual metal melt production. In addition to the pollution prevention management practices, large foundries would be required to comply with emissions limits, control device parameter operating limits, monitoring requirements, and operating and maintenance requirements. A CPMS would be required to measure and record operating parameters for a wet scrubber every 15 minutes and determine and record the 3-hour average pressure drop and water flow rate. If an electrostatic precipitator is used, the owner or operator would be required to measure the hourly average voltage and secondary current (or total power input) using a CPMS or check and record the secondary current (or total power input) at least once a shift. For a baghouse, this proposed rule requires a CPMS to measure and record the baghouse pressure drop across each cell using a CPMS or by checking the pressure drop once a day and recording the results. Foundries would also make periodic inspections of each baghouse and record the results of each inspection. Alternatively, the owner or operator of an existing foundry may install and operate bag leak detection systems. Bag leak detection systems would be required for any new foundry. Large foundries would be required to make monthly inspections of capture systems. Performance tests for furnaces would be required every 5 years and every 6 months for fugitive emissions from buildings and structures housing foundry operations; the results would be reported in the next semiannual report. The proposed NESHAP also requires foundries to prepare and follow an operation and maintenance plan that identifies monitoring procedures and schedules. If a facility elected to use emissions averaging to demonstrate compliance, the foundry would be required to demonstrate compliance once each calendar month by calculating the weighted average emissions for the group of all metal melting furnaces at the foundry using an equation in the rule. This proposed rule requires records of the monthly calculations. This proposed rule, therefore, contains both continuous and noncontinuous monitoring requirements, which constitute periodic monitoring that will assure compliance with the proposed rule. We also considered the extent to which title V could enhance compliance through additional recordkeeping or reporting, including title V requirements in 40 CFR 70.6 and 40 CFR 71.6 for a semiannual report, deviation reports, and an annual compliance certification. All foundries would be required to record specific information to demonstrate conformance with the pollution prevention management practices and keep records of monthly production data. All foundries also would be required to submit a notification that classifies the facility as a small foundry or a large foundry and to submit subsequent notifications for any change in classification. Small foundries would be required to submit an initial notice of applicability and a notification of compliance status. Records would be required to demonstrate conformance with the pollution prevention management standards for metallic scrap, mercury switches, and binder formulations. Small foundries also would be required to report any deviation from the pollution prevention management practices in the semiannual report required by 40 CFR 63.10. In addition to the records required by 40 CFR 63.10 of the general provisions, large foundries would be required to keep records to demonstrate conformance with the pollution prevention management standards for metallic scrap, mercury switches, and binder formulations; operation and maintenance plans; capture system inspections and repairs; control device monitoring and inspections; emissions averaging (if applicable); bag leak detection system settings and alarms (if applicable); and corrective actions. The semiannual report submitted by large foundries would include summary information on the number, duration, and cause of excursions or exceedances and the corrective action taken, on monitor downtime incidents, and deviations from pollution prevention management practices or operation and maintenance requirements. The proposed NESHAP requires large foundries to comply with applicable notification, recordkeeping, and reporting requirements in the general provisions (40 CFR part 63, subpart A) including requirements for startup, shutdown, and malfunction plans, reports, and records in 40 CFR 63.6(e)(3); see Table 3 of this proposed rule. When a startup, shutdown, and malfunction report must be submitted, it must consist of a letter containing the name, title, and signature of the owner or operator or other responsible official who is certifying its accuracy. The information in the reports required for area source foundries (both large and small) is similar to the information that must be provided in the semiannual reports required under 40 CFR 70.6(a)(3) and 40 CFR 71.6(a)(3). This proposed rule does not require an annual compliance certification report, which is a requirement of a title V permit. See 40 CFR 70.5(c)(9)(iii) and 40 CFR 71.6(c)(5)(i). EPA believes that the annual certification reporting requirement is not necessary because the initial compliance certifications, recordkeeping requirements, and semiannual reports are adequate to determine compliance for new or existing sources. The monitoring, recordkeeping, and reporting requirements in the proposed NESHAP for the Iron Foundries and Steel Foundries area source categories are substantially equivalent to such requirements under title V. Therefore, we conclude that title V would not result in significant improvements to the compliance requirements we are proposing for these area source categories. We evaluated factor two to determine whether title V permitting would impose a significant burden on the area source categories and whether that burden would be aggravated by any difficulty the source may have in obtaining assistance from the permitting agency. Subjecting any source to title V permitting imposes certain burdens and costs that do not exist outside of the title V program. EPA estimated that the average annual cost of obtaining and complying with a title V permit was $7,700 per year per source, including fees, or $38,000 per source for a (5-year) permit period. See Information Collection Request
(ICR)for Part 70 Operating Permit Regulations, January 2000, EPA ICR Number 1587.05. There are certain activities associated with the part 70 and 71 rules that are mandatory and impose burdens on the source. They include reading and understanding permit program guidance and regulations; obtaining and understanding permit application forms; answering follow-up questions from permitting authorities after the application is submitted; reviewing and understanding the permit; collecting records; preparing and submitting monitoring reports on a 6-month or more frequent basis; preparing and submitting prompt deviation reports, as defined by the State, which may include a combination of written, verbal, and other communications methods; collecting information, preparing, and submitting the annual compliance certification; preparing applications for permit revisions every 5 years; and, as needed, preparing and submitting applications for permit revisions. In addition, although not required by the permit rules, many sources obtain the contractual services of professional scientists and engineers (consultants) to help them understand and meet the permitting program's requirements. The ICR for part 70 provides information on the overall burdens and costs, as well as the relative burdens of each activity described here. Also, for a more comprehensive list of requirements imposed on part 70 sources (hence, burden on sources), see the requirements of 40 CFR 70.3, 70.5, 70.6, and 70.7. In considering the second factor for the 427 existing iron and steel foundries (319 of which are owned by small entities), we examined the potential economic implications for the source category. At a cost of $38,000 per source, the cost to the area source category would be about $16.2 million. The cost of permits for this area source category would exceed the estimated total annualized cost of the standards ($10.5 million). Although our economic analysis of the impacts of this proposed rule on small entities does not include the cost of title V permitting, we believe that such additional costs would result in adverse impacts for many small entities and perhaps on the industry as a whole. We believe an additional cost of $38,000 would create a significant risk of closure for approximately 110 foundries, nearly all of which are owned by small entities, as the $38,000 cost of title V permitting alone would exceed 3 percent of revenues for these foundries. We also looked at the economic resources of facilities in this source category. While some facilities are large, sophisticated operations with expertise in regulatory and permitting requirements, the majority of facilities in this area source category are small entities which may not have this expertise. Due to the sheer number of facilities, we suspect that the cost impact could be aggravated by difficulties in obtaining assistance from overburdened permitting authorities. The third factor, which is closely related to the second factor, is whether the costs of title V permitting for these area sources would be justified, taking into consideration any potential gains in compliance likely to occur for such sources. We explained above under the second factor that the economic and non-economic costs of compliance with title V would impose a significant burden on approximately 110 area source iron and steel foundries. In addition, we do not think the costs for the existing or new sources would lead to any gains in compliance within the category. As discussed above for factor one, we determined that the compliance requirements of this NESHAP are substantially equivalent to the requirements of title V. Furthermore, as discussed below for factor four, there are adequate implementation and enforcement programs in place that are sufficient to assure compliance with the NESHAP. We conclude, therefore, that the costs of title V are not justified for the existing and new sources in this category. The fourth factor we considered is whether there are implementation and enforcement programs in place that are sufficient to assure compliance with this NESHAP without relying on title V permits. We believe that the State programs are sufficient to assure compliance with these NESHAP. We also note that EPA retains authority to enforce these NESHAP at any time under CAA sections 112, 113 and 114. We conclude that title V permitting is “unnecessary” to assure compliance with this proposed NESHAP because the statutory requirements for implementation and enforcement of the NESHAP by the delegated States and EPA are sufficient to assure compliance without title V permits. We also note that small business assistance programs required by CAA section 507 may be used to assist area sources that have been exempted from title V permitting. In addition, States and EPA often conduct voluntary compliance assistance, outreach, and education programs (compliance assistance programs), which are not required by statute. These additional programs can be used to supplement and enhance the success of compliance with this area source NESHAP. In light of all of the above, we conclude that there are implementation and enforcement programs in place that are sufficient to assure compliance with the NESHAP without relying on title V permitting. In applying this factor in the Exemption Rule, where EPA had deferred action on the title V exemption for several years, we had enforcement data available to demonstrate that States were not only enforcing the provisions of the area source NESHAP that we exempted, but that the States were also providing compliance assistance to ensure that the area sources were in the best position to comply with the NESHAP. See 70 FR 75325-75326. We do not have similar data available for this proposed rule, but we have no reason to think that States will be less diligent in enforcing this NESHAP. See 70 FR 75326. In fact, States must have adequate programs to enforce the HAP regulations and provide assurances that they will enforce all NESHAP before EPA will delegate the program. See 40 CFR part 63, subpart E. In light of the above, we conclude that there are implementation and enforcement programs in place that are sufficient to assure compliance with the final rule without relying on title V permitting. Considering the factors in combination supports our proposed finding that title V is unnecessarily burdensome on these area source categories. We conclude that title V would not result in significant improvements to the compliance requirements applicable to these area source categories and that there are adequate implementation and enforcement programs in place to assure compliance with the NESHAP. We also conclude that the cost of title V permitting would be burdensome; we also find that the cost is not justified because there would be little to no potential gains in compliance within the category if title V was required. Thus, we conclude that title V permitting is “unnecessarily burdensome” for the iron foundries and steel foundries area source categories. In addition to evaluating whether compliance with title V requirements is “unnecessarily burdensome”, EPA also considered, consistent with guidance provided by the legislative history of CAA section 502(a), whether exempting these area source categories from title V requirements would adversely affect public health, welfare, or the environment. We see no reason to believe that exemption of this area source category from title V requirements would adversely affect public health, welfare, or the environment because these national standards would achieve a significant reduction in HAP and other emissions that would improve public health, welfare, and the environment. For the foregoing reasons, we propose to exempt iron foundries and steel foundries area source categories from title V permitting requirements. VII. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is a “significant regulatory action” because it may “raise novel legal or policy issues.” Accordingly, EPA submitted this action to the Office of Management and Budget
(OMB)for review under Executive Order 12866 and any changes made in response to OMB recommendations have been documented in the docket for this action. B. Paperwork Reduction Act The information requirements in this proposed rule have been submitted for approval to OMB under the Paperwork Reduction Act, 44 U.S.C. 3501 *et seq.* The information collection request
(ICR)document prepared by EPA has been assigned EPA ICR number 2267.01 The recordkeeping and reporting requirements in this proposed rule are based on the requirements in EPA's National Program for Mercury Switch Removal (a voluntary agreement with participating industries) and the NESHAP General Provisions (40 CFR part 63, subpart A). The recordkeeping and reporting requirements in the General Provisions are mandatory pursuant to section 114 of the CAA (42 U.S.C. 7414). All information (other than emissions data) submitted to EPA pursuant to the information collection requirements for which a claim of confidentiality is made is safeguarded according to CAA section 114(c) and the Agency's implementing regulations at 40 CFR part 2, subpart B. All foundries would be required to submit an initial notification that classifies their facility as a small or large foundry and a subsequent notification for any change in classification. All foundries also would be required to maintain monthly production data to support their classification as a large or small foundry. The proposed NESHAP requires small area source foundries to submit an initial notification of applicability and a notification of compliance status according to the requirements in the General Provisions (40 CFR part 63, subpart A). Small area source foundries also report any deviation from the pollution prevention management standards in the semiannual report required by 40 CFR 63.10 of the general provisions. Large area source foundries would be required to prepare and follow an O&M plan, conduct initial performance tests and follow-up tests every 5 years, monitor control device operating parameters, conduct opacity tests every 6 months for fugitive emissions, inspect and repair capture systems, and keep records to document compliance with the rule requirements. The owner or operator of an existing affected source would be allowed to certify compliance with the emissions limits based on the results of prior performance tests that meet the rule requirements; the owner or operator would be required to provide advance notification of the intent to use a prior performance test instead of conducting a new test. If compliance with the emissions limits for metal melting furnaces is demonstrated through emissions averaging, the owner or operator would be required to demonstrate compliance for each calendar month using a calculation procedure in the rule. The owner or operator of a large iron and steel foundry would be subject to all requirements in the General Provisions (40 CFR part 63, subpart A), including the requirements in 40 CFR 63.6(e) for startup, shutdown, and malfunction records and reports and the recordkeeping and reporting requirements in 40 CFR 63.10. The semiannual report would include summary information on excursions or exceedances, monitor downtime incidents, and deviations from management practices and operation and maintenance requirements. The annual burden for this information collection averaged over the first 3 years of this ICR is estimated to total 5,990 labor hours per year at a cost of $418,295 for the 427 area sources, with annualized capital costs of $8,490 and no O&M costs. No new area sources are estimated during the next 3 years. These estimates represent the maximum burden that would be imposed by the proposed standards (based on a subcategorization using a production capacity threshold of 10,000 tpy for the definition of “small iron and steel foundry”). Because this proposal represents estimates of the maximum burden, we did not estimate the ICR burden associated with the co-proposed standards for this proposed rule. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, 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 part 63 are listed in 40 CFR part 9. To comment on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, including the use of automated collection techniques, EPA has established a public docket for this action, which includes this ICR, under Docket ID number EPA-HQ-OAR-2006-0897. Submit any comments related to the ICR for this proposed rules to EPA and OMB. See “Addresses” section at the beginning of this notice for where to submit comments to EPA. Send comments to OMB at the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW., Washington, DC 20503, Attention: Desk Officer for EPA. Since OMB is required to make a decision concerning the ICR between 30 and 60 days after September 17, 2007, a comment to OMB is best assured of having its full effect if OMB receives it by October 17, 2007. This final rule will respond to any OMB or public comments on the information collection requirements contained in this proposal. C. Regulatory Flexibility Act The Regulatory Flexibility Act generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule would not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions. For the purposes of assessing the impacts of the proposed rule on small entities, small entity is defined as:
(1)A small business that meets the Small Business Administration size standards for small businesses found at 13 CFR 121.201 (less than 500 employees for NAICS codes 331511, 331512, and 331513);
(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 the proposed rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. The proposed rule is estimated to impact a total of 427 area source iron and steel foundries; 319 of these foundries are small entities. We estimate that 124 of these foundries would be large iron and steel foundries (metal melt production greater than 10,000 tpy), and 303 foundries would be small iron and steel foundries (metal melt production of 10,000 tpy or less). Approximately 45 percent of the large iron and steel foundries are owned by small entities whereas 85 percent of the small iron and steel foundries are owned by small entities. Our analysis shows that small entity compliance costs, as assessed by the foundry's cost-to-sales ratio, are expected to range from 0.01 to 3.5 percent. The analysis also shows that of the 60 foundries owned by small entities subject to the requirements for large foundries (i.e., exceeding 10,000 tpy melt production), only one small entity may incur economic impacts exceeding 3 percent of its revenue; see Table 2 of this preamble. This proposed rule minimizes the impact on small entities by applying special provisions for small foundries that melt low quantities of metal (less than 10,000 tpy). Small iron and steel foundries would be required to prepare and follow pollution prevention management practices for metallic scrap and binder formulations, submit one-time notifications, monitor their metal melting rate on a monthly basis, report deviations if they occur, and keep certain records. Although this proposed rule contains requirements for new area sources, we are not specifically aware of any new area sources being constructed now or planned in the next 3 years, and consequently, we did not estimate any impacts for new sources. We continue to be interested in the potential impacts of the proposed action on small entities and welcome comments on issues related to such impacts. 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, 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 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 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. EPA has determined that this proposed 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 one year. This proposed rule is not expected to impact State, local, or tribal governments. Thus, this proposed rule is not subject to the requirements of sections 202 and 205 of the UMRA. EPA has determined that this proposed rule contains no regulatory requirements that might significantly or uniquely affect small governments. This proposed rule contains no requirements that apply to such governments, and impose no obligations upon them. Therefore, this proposed rule is not subject to 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.” This proposed rule does not have federalism implications. It would 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. This proposed rule does not impose any requirements on State and local governments. Thus, Executive Order 13132 does not apply to this proposed rule. In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA specifically solicits comment on this proposed rule from State and local officials. 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.” This proposed rule does not have tribal implications, as specified in Executive Order 13175. It would 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. This proposed rule imposes no requirements on tribal governments. Thus, Executive Order 13175 does not apply to this proposed rule. EPA specifically solicits additional comment on this proposed rule from tribal officials. G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that:
(1)Is determined to be “economically significant” as defined under Executive Order 12866, and
(2)concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, 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 Agency. EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This proposed rule is not subject to the Executive Order because it is based on technology performance and not on health or safety risks. H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use This proposed rule is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. We have concluded that this proposed rule is not likely to have any adverse energy effects because energy requirements would not be significantly impacted by the additional pollution controls or other equipment that are required by this proposed rule. I. National Technology Transfer Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) of 1995 (Pub. L. 104-113, Section 12(d), 15 U.S.C. 272 note) directs EPA to use voluntary consensus standards
(VCS)in its regulatory activities, unless to do so would be inconsistent with applicable law or otherwise impractical. The VCS are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by VCS bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency does not use available and applicable VCS. This proposed rule involves technical standards. The proposal cites the following standards: EPA Methods 1, 1A, 2, 2A, 2C, 2D, 2F, 2G, 3, 3A, 3B, 4, 5, 5B, 5D, 5F, 5I, 9, and 29 in 40 CFR part 60, appendix A; and EPA Method 9095B, “Paint Filter Liquids Test,” in “Test Methods for Evaluating Solid Waste, Physical/Chemical Methods,” EPA Publication SW-846 (incorporated by reference—see 40 CFR 63.14). Consistent with the NTTAA, EPA conducted searches to identify VCS in addition to the EPA methods. No applicable VCS were identified for EPA Methods 1A, 2A, 2D, 2F, 2G, 5B, 5D, 5F, 9, 29, or 9095B. The search and review results are in the docket for this rule. One VCS was identified as applicable to this proposed rule. The standard ASME PTC 19.10-1981, “Flue and Exhaust Gas Analyses,” (incorporated by reference—see 40 CFR 63.14) is cited in this proposed rule for its manual method for measuring the oxygen, carbon dioxide, and CO content of the exhaust gas. This part of ASME PTC 19.10-1981 is an acceptable alternative to EPA Method 3B. The search for emissions measurement procedures identified 13 other VCS. EPA determined that these 13 standards identified for measuring emissions of the HAP or surrogates subject to emission standards in this proposed rule were impractical alternatives to EPA test methods for the purposes of this proposed rule. Therefore, EPA does not intend to adopt these standards for this purpose. The reasons for the determinations for the 13 methods are discussed in a memorandum in the docket for this proposed rule. For the methods required or referenced by this proposed rule, a source may apply to EPA for permission to use alternative test methods or alternative monitoring requirements in place of any required testing methods, performance specifications, or procedures under 40 CFR 63.7(f) and 40 CFR 63.8(f) of subpart A of the general provisions. EPA welcomes comments on this aspect of the proposed rulemaking and, specifically, invites the public to identify potentially-applicable VCS and to explain why such standards should be used in this regulation. J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations Executive Order 12898 (59 FR 7629, February 16, 1994) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. EPA has determined that this proposed rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it increases the level of environmental protection for all affected populations without having any disproportionately high and adverse human health or environmental effects on any population, including any minority or low-income population. The nationwide standards would reduce HAP emissions and thus decrease the amount of emissions to which all affected populations are exposed. List of Subjects in 40 CFR Part 63 Environmental protection, Air pollution control, Hazardous substances, Incorporations by reference, Reporting and recordkeeping requirements. Dated: September 6, 2007. Stephen L. Johnson, Administrator. For the reasons stated in the preamble, title 40, chapter I, part 63 of the Code of Federal Regulations is proposed to be amended as follows: PART 63—[AMENDED] 1. The authority citation for part 63 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* Subpart A—[Amended] 2. Section 63.14 is amended by revising paragraphs (i)(1) and (k)(1)(iii) to read as follows: § 63.14 Incorporations by reference.
(i)* * *
(1)ANSI/ASME PTC 19.10-1981, “Flue and Exhaust Gas Analyses [Part 10, Instruments and Apparatus],” IBR approved for §§ 63.309(k)(1)(iii), 63.865(b), 63.3166(a)(3), 63.3360(e)(1)(iii), 63.3545(a)(3), 63.3555(a)(3), 63.4166(a)(3), 63.4362(a)(3), 63.4766(a)(3), 63.4965(a)(3), 63.5160(d)(1)(iii), 63.9307(c)(2), 63.9323(a)(3), 63.11148(e)(3)(iii), 63.11155(e)(3), 63.11162(f)(3)(iii) and (f)(4), 63.11163(g)(1)(iii) and (g)(2), 63.11410(j)(1)(iii), Table 5 to subpart DDDDD of this part, and Table 1 to subpart ZZZZZ of this part.
(k)* * *
(1)* * *
(iii)Method 9095B, “Paint Filter Liquids Test,” dated November 2004 and in Update III, IBR approved for §§ 63.7700(b) and 63.7765 of subpart EEEEE of this part and §§ 63.10885(a)(1) and 63.10906 of subpart ZZZZZ of this part. 3. Part 63 is amended by adding subpart ZZZZZ to read as follows: Subpart ZZZZZ—National Emission Standards for Hazardous Air Pollutants for Iron and Steel Foundries Area Sources Applicability and Compliance Dates Sec. 63.10880 Am I subject to this subpart? 63.10881 What are my compliance dates? 63.10882 How does this subpart apply to small iron and steel foundries and large iron and steel foundries? Pollution Prevention Management Practices 63.10885 What are my management practices for metallic scrap and mercury switches? 63.10886 What are my management practices for binder formulations? Requirements for Small Iron and Steel Foundries 63.10890 What are my management practices and compliance requirements? Requirements for Large Iron and Steel Foundries 63.10895 What are my standards and management practices? 63.10896 What are my operation and maintenance requirements? 63.10897 What are my monitoring requirements? 63.10898 What are my performance test requirements? 63.10899 What are my recordkeeping and reporting requirements? 63.10900 What parts of the General Provisions apply to me? Other Requirements and Information 63.10905 Who implements and enforces this subpart? 63.10906 What definitions apply to this subpart? Tables to Subpart ZZZZZ of Part 63 Table 1 to Subpart ZZZZZ of Part 63—Performance Test Requirements for Large Iron and Steel Foundries Table 2 to Subpart ZZZZZ of Part 63—Establishment of Operating Limits for Large Iron and Steel Foundries Table 3 to Subpart ZZZZZ of Part 63—Applicability of General Provisions to Large Iron and Steel Foundries Table 4 to Subpart ZZZZZ of Part 63—Compliance Certifications for Large Iron and Steel Foundries Subpart ZZZZZ—National Emission Standards for Hazardous Air Pollutants for Iron and Steel Foundries Area Sources Applicability and Compliance Dates § 63.10880 Am I subject to this subpart?
(a)You are subject to this subpart if you own or operate an iron and steel foundry that is an area source of hazardous air pollutant
(HAP)emissions.
(b)This subpart applies to each new or existing affected source. The affected source is each iron and steel foundry.
(1)An affected source is existing if you commenced construction or reconstruction of the affected source before September 17, 2007.
(2)An affected source is new if you commenced construction or reconstruction of the affected source on or after September 17, 2007.
(c)On and after the date of publication of the final rule in the **Federal Register** , if your iron and steel foundry becomes a major source as defined in § 63.2, you must meet the requirements of 40 CFR part 63, subpart EEEEE.
(d)This subpart does not apply to research and development facilities, as defined in section 112(c)(7) of the Clean Air Act.
(e)You are exempt from the obligation to obtain a permit under 40 CFR part 70 or 40 CFR part 71, provided you are not otherwise required by law to obtain a permit under 40 CFR 70.3(a) or 40 CFR 71.3(a). Notwithstanding the previous sentence, you must continue to comply with the provisions of this subpart.
(f)You must determine the initial applicability of the requirements of this subpart to a small foundry or a large foundry based on your facility's metal melt production for calendar year 2008. If the metal melt production for calendar year 2008 is 10,000 tons or less, your area source is a small foundry. If your metal melt production for calendar year 2008 is greater than 10,000 tons, your area source is a large foundry. You must submit a written notification to the Administrator that identifies your area source as a small foundry or a large foundry no later than 1 year after the date the final rule is published in the **Federal Register** . § 63.10881 What are my compliance dates?
(a)If you own or operate an existing affected source, you must achieve compliance with the applicable provisions of this subpart by the dates in paragraphs (a)(1) and
(2)of this section.
(1)Except as provided in paragraph
(d)of this section, not later than 1 year after the date of publication of the final rule in the **Federal Register** for the pollution prevention management practices in §§ 63.10885 and 63.10886.
(2)Except as provided in paragraph
(d)of this section, not later than 2 years after the date of your large foundry's notification of the initial determination required in § 63.10880(f) for the standards and management practices in § 63.10895.
(b)If you have a new affected source for which the initial startup date is on or before the date of publication of the final rule in the **Federal Register** , you must achieve compliance with the provisions of this subpart not later than the date of publication of the final rule in the **Federal Register** .
(c)If you own or operate a new affected source for which the initial startup date is after the date of publication of the final rule in the **Federal Register** , you must achieve compliance with the provisions of this subpart upon startup of your affected source.
(d)Following the initial determination for a small foundry or large foundry required in § 63.10880(f),
(1)If the annual metal melt production of your small foundry exceeds 10,000 tons during the preceding calendar year, you must notify the Administrator within 30 days and comply with the requirements in paragraphs (d)(1)(i) or
(ii)of this section, as applicable.
(i)If your small foundry has never been classified as a large foundry, you must comply with the requirements for a large foundry no later than 2 years after the date of your foundry's notification that the annual production exceeded 10,000 tons.
(ii)If your small foundry had previously been classified as a large foundry, you must comply with the requirements for a large foundry no later than the date of your foundry's most recent notification that the annual production exceeded 10,000 tons.
(2)If your facility is initially classified as a large foundry (or your small foundry subsequently becomes a large foundry), you must comply with the requirements for a large foundry for at least 3 years before reclassifying your facility as a small foundry, even if your annual production falls below 10,000 tons of melted metal. After 3 years, you may reclassify your facility as a small foundry provided your annual production for the preceding calendar year was 10,000 tons of melted metal or less. If you reclassify your large foundry as a small foundry, you must comply with the requirements for a small foundry no later than the date you notify the Administrator of the reclassification. § 63.10882 How does this subpart apply to small iron and steel foundries and large iron and steel foundries?
(a)If you own or operate a new or existing affected source that is a small iron and steel foundry as defined in § 63.10906, you must comply with the requirements in § 63.10890. The requirements in § 63.10890 include the pollution prevention management practices in §§ 63.10885 and 63.10886.
(b)If you own or operate a large iron and steel foundry as defined in § 63.10906, you must comply with the requirements in §§ 63.10895 through 63.10900. The requirements in § 63.10895 include the pollution prevention management practices in §§ 63.10885 and 63.10886. Pollution Prevention Management Practices § 63.10885 What are my management practices for metallic scrap and mercury switches?
(a)*Metallic scrap management program.* For each segregated metallic scrap storage area, bin or pile, you must comply with the materials acquisition requirements in paragraph (a)(1) or
(2)of this section. You must keep a copy of the material specifications onsite and readily available to all personnel with material acquisition duties, and provide a copy to each of your scrap vendors. You may have certain scrap subject to paragraph (a)(1) of this section and other scrap subject to paragraph (a)(2) of this section at your facility provided the metallic scrap remains segregated until charge make-up.
(1)*Restricted metallic scrap.* You must prepare and operate at all times according to written material specifications for the purchase and use of only metal ingots, pig iron, slitter, or other materials that do not include post-consumer automotive body scrap, post-consumer engine blocks, post-consumer oil filters, oily turnings, lead components, chlorinated plastics, or free liquids. For the purpose of this subpart, “free liquids” is defined as material that fails the paint filter test by EPA Method 9095B, “Paint Filter Liquids Test” (Revision 2, November 2004), as published in EPA Publication SW-846 “Test Methods for Evaluating Solid Waste, Physical/Chemical Methods” (incorporated by reference—see § 63.14). The requirements of this paragraph (a)(1) do not apply to the routine recycling of baghouse bags or other internal process or maintenance materials in the furnace.
(2)*General iron and steel scrap.* You must prepare and operate at all times according to written material specifications for the purchase and use of only iron and steel scrap that has been depleted (to the extent practicable) of organics and HAP metals in the charge materials used by the iron and steel foundry. The materials specifications must include at minimum the information specified in paragraph (a)(2)(i) or
(ii)of this section.
(i)For scrap charged to a scrap preheater or metal melting furnace that is not equipped with an afterburner, metallic scrap materials must be depleted (to the extent practicable) of the presence of used oil filters, chlorinated plastic parts, accessible lead-containing components (such as batteries and wheel weights), and free liquids.
(ii)For scrap charged to a cupola metal melting furnace that is equipped with an afterburner, metallic scrap materials must be depleted (to the extent practicable) of the presence of chlorinated plastics, accessible lead-containing components (such as batteries and wheel weights), and free liquids.
(b)*Mercury requirements.* For each scrap provider, contract, or shipment, you must procure all motor vehicle scrap pursuant to one of the alternatives in paragraphs (b)(1), (2), or
(3)of this section. You may have one scrap provider, contract, or shipment subject to one alternative and others subject to another alternative.
(1)*Site-specific plan for mercury switches.* You must comply with the requirements in paragraphs (b)(1)(i) through
(v)of this section.
(i)You must include a requirement in your scrap specifications for removal of mercury switches from vehicle bodies used to make the scrap.
(ii)You must prepare and operate according to a plan demonstrating how your facility will implement the scrap specification in paragraph (b)(1)(i) of this section for removal of mercury switches. You must submit the plan to the Administrator for approval. The Administrator may change the approval status of the plan upon 90-days written notice based upon the semiannual report or other information. The plan must include:
(A)A means of communicating to scrap purchasers and scrap providers the need to obtain or provide motor vehicle scrap from which mercury switches have been removed and the need to ensure the proper disposal of the mercury switches removed as required by the Resource Conservation and Recovery Act (RCRA);
(B)Provisions for obtaining assurance from scrap providers that motor vehicle scrap provided to the facility meets the scrap specification;
(C)Provisions for periodic inspection, site visits, or other means of corroboration to ensure that scrap providers and dismantlers are implementing appropriate steps to minimize the presence of mercury switches in motor vehicle scrap and that they are properly disposing of the mercury switches removed, including the minimum frequency such means of corroboration will be implemented; and
(D)Provisions for taking corrective actions if needed, based on the results of procedures implemented in paragraph (b)(1)(ii)(C) of this section.
(iii)You must require each motor vehicle scrap provider to provide an estimate of the number of mercury switches removed from motor vehicle scrap sent to the facility during the previous year and the basis for the estimate. The Administrator may request documentation or additional information at any time.
(iv)You must establish a goal for the removal of at least 80 percent of the mercury switches. Although a site-specific plan approved under paragraph (b)(1) of this section may require only the removal of convenience light switch mechanisms, the Administrator will credit all documented and verifiable mercury-containing components removed from motor vehicle scrap (such as sensors in anti-locking brake systems, security systems, active ride control, and other applications) when evaluating progress towards the 80 percent goal.
(v)You must submit semiannual progress reports to the Administrator that provide the number of mercury switches removed or the weight of mercury recovered from the switches, the number of vehicles processed, an estimate of the percent of mercury switches recovered, and certification that the recovered mercury switches were recycled at RCRA-permitted facilities. The Administrator may change the approval status of a site-specific plan following 90-days notice based on the progress reports or other information.
(2)*Alternative for approved mercury programs.* You must certify in your notification of compliance status that you participate in and purchase motor vehicle scrap only from scrap providers who participate in a program for removal of mercury switches that has been approved by the Administrator based on the criteria in paragraphs (b)(2)(i) through
(iii)of this section.
(i)There is an outreach program that informs the dismantlers of the need for removal of mercury switches and provides training and guidance for removing mercury switches;
(ii)The program has a goal for the removal of at least 80 percent of mercury switches. Although a program approved under paragraph (b)(2) of this section may require only the removal of convenience light switch mechanisms, the Administrator will credit all documented and verifiable mercury-containing components removed from motor vehicle scrap (such as sensors in anti-locking brake systems, security systems, active ride control, and other applications) when evaluating progress towards the 80 percent goal; and
(iii)The program sponsor agrees to submit progress reports to the Administrator no less frequently than once every year that provide the number of mercury switches removed or the weight of mercury recovered from the switches, the number of vehicles processed, an estimate of the percent of mercury switches recovered, and certification that the recovered mercury switches were recycled at RCRA-permitted facilities. The Administrator may change the approval status of a program following 90-days notice based on the progress report or other information.
(3)*Alternative for specialty metal scrap.* You must certify in your notification of compliance status that the only materials from motor vehicles in the scrap are materials recovered for their specialty alloy (including, but not limited to, chromium, nickel, molybdenum, or other alloys) content (such as certain exhaust systems) and, based on the nature of the scrap and purchase specifications, that the type of scrap is not reasonably expected to contain mercury switches. § 63.10886 What are my management practices for binder formulations? For each furfuryl alcohol warm box mold or core making line at a new or existing iron and steel foundry, you must use a binder chemical formulation that does not use methanol as a specific ingredient of the catalyst formulation. This requirement does not apply to the resin portion of the binder system. Requirements for Small Iron and Steel Foundries § 63.10890 What are my management practices and compliance requirements?
(a)You must comply with the pollution prevention management practices for metallic scrap and mercury switches in § 63.10885 and binder formulations in § 63.10886.
(b)You must submit an initial notification of applicability according to § 63.9(b)(2).
(c)You must submit a notification of compliance status according to § 63.9(h)(1)(i). You must send the notification of compliance status before the close of business on the 30th day after the applicable compliance date specified in § 63.10881. The notification must include the following compliance certifications, as applicable:
(1)“This facility has prepared, and will operate by, written material specifications for metallic scrap according to § 63.10885(a)(1)” and/or “This facility has prepared, and will operate by, written material specifications for general iron and steel scrap according to § 63.10885(a)(2).”
(2)“This facility has prepared, and will operate by, written material specifications for the removal of mercury switches and a site-specific plan implementing the material specifications according to § 63.10890(b)(1)” and/or “This facility participates in and purchases motor vehicles scrap only from scrap providers who participate in a program for removal of mercury switches that has been approved by the Administrator according § 63.10890(b)(2)” and/or “This facility complies with the alternative requirements in § 63.10890(b)(3) for specialty metal scrap and will recover only materials from motor vehicles for their specialty alloy content that are not reasonably expected to contain mercury switches.” No mercury switch certification is required if your facility does not purchase any motor vehicles scrap.
(3)“This facility complies with the no methanol requirement for the catalyst portion of each binder chemical formulation for a furfuryl alcohol warm box mold or core making line according to § 63.10886.”
(d)You must maintain records of the information specified in paragraphs (d)(1) through
(7)of this section according to the requirements in § 63.10(b)(1).
(1)Records supporting your initial notification of applicability and your notification of compliance status according to § 63.10(b)(2)(xiv).
(2)Records of your written materials specifications according to § 63.10885(a) and records that demonstrate compliance with the requirements for restricted metallic scrap in § 63.10885(a)(1) or general scrap in § 63.10885(a)(2).
(3)If you are subject to the requirements for a site-specific plan for mercury switch removal in § 63.10885(b)(1), you must:
(i)Maintain records of the number of mercury switches removed or the weight of mercury recovered from the switches and properly managed, the number of vehicles processed, and an estimate of the percent of mercury switches recovered; and
(ii)Submit semiannual reports of the number of mercury switches removed or the weight of mercury recovered from the switches and properly managed, the number of vehicles processed, an estimate of the percent of mercury switches recovered, and certification that the recovered mercury switches were recycled at RCRA-permitted facilities. The semiannual reports must include certification that you have conducted inspections, site visits, or taken other means of corroboration as required under § 63.10885(b)(1)(ii)(C). You must identify which alternative in paragraph § 63.10885(b) applies to each scrap provider, contract, or shipment. You may include this information in the semiannual reports required under paragraph
(d)of this section.
(4)If you are subject to the alternative for approved mercury programs under paragraph (b)(2) of this section, you must maintain records identifying each scrap provider and documenting the scrap provider's participation in an approved mercury switch removal program.
(5)Records to document use of binder chemical formulation that does not contain methanol as a specific ingredient of the catalyst formulation for each furfuryl alcohol warm box mold or core making line as required by § 63.10886. These records must be the Material Safety Data Sheet (provided that it contains appropriate information), a certified product data sheet, or a manufacturer's hazardous air pollutant data sheet.
(6)Records of the annual quantity and composition of each HAP-containing chemical binder or coating material used to make molds and cores. These records must be copies of purchasing records, Material Safety Data Sheets, or other documentation that provide information on the binder or coating materials used.
(7)Records of metal melt production for each calendar year.
(e)You must submit semiannual reports to the Administrator according to the requirements in § 63.10(e). The report must clearly identify any deviation from the pollution prevention management practices in §§ 63.10885 or 63.10886 and the corrective action taken.
(f)Beginning January 1, 2010, if the annual metal melt production for your small foundry exceeds 10,000 tons during the preceding year, you must submit a notification of foundry reclassification to the Administrator within 30 days and you must comply with the requirements for large foundries by the applicable dates in § 63.10881(d)(1)(i) or (d)(1)(ii).
(g)You must comply with the following requirements of General Provisions (40 CFR part 63, subpart A): §§ 63.1 through 63.5; § 63.6(a), (b), (c), and (e)(1); § 63.9; § 63.10(a), (b)(1), (b)(2)(xiv), (b)(3), (d)(1), (d)(4), and (f); and §§ 63.13 through 63.16. Requirements for Large Iron and Steel Foundries § 63.10895 What are my standards and management practices?
(a)You must operate a capture and collection system for each metal melting furnace at a new or existing iron and steel foundry. Each capture and collection system must meet accepted engineering standards, such as those published by the American Conference of Governmental Industrial Hygienists.
(b)You must not discharge to the atmosphere emissions from any metal melting furnace or group of all metal melting furnaces that exceed the applicable limit in paragraph (b)(1) or
(2)of this section.
(1)For an existing iron and steel foundry, 0.8 pounds of particulate matter
(PM)per ton of metal charged (lb/ton of PM) or 0.06 pounds of total metal HAP per ton of metal charged (lb/ton of total metal HAP).
(2)For a new iron and steel foundry, 0.1 lb/ton of PM or 0.008 lb/ton of total metal HAP.
(c)If you own or operate a new or existing iron and steel foundry, you must comply with each control device parameter operating limit in paragraphs (c)(1) through
(3)of this section that applies to you.
(1)For each wet scrubber applied to emissions from a metal melting furnace, you must maintain the 3-hour average pressure drop and scrubber water flow rate at or above the minimum levels established during the initial or subsequent performance test.
(2)For each electrostatic precipitator applied to emissions from a metal melting furnace, you must maintain the voltage and secondary current (or total power input) to the control device at or above the level established during the initial or subsequent performance test.
(3)For each baghouse applied to emissions from a metal melting furnace that is subject to the monitoring and inspection requirements in § 63.10897(c), you must maintain the pressure drop across each baghouse cell within the range established during the initial or subsequent performance test.
(d)If you own or operate a new or existing iron and steel foundry, you must not discharge to the atmosphere fugitive emissions from a building or structure housing any iron and steel foundry operations that exhibit opacity greater than 20 percent (6-minute average).
(e)You must comply with the pollution prevention management practices in §§ 63.10885 and 63.10886. § 63.10896 What are my operation and maintenance requirements?
(a)You must prepare and follow a written operation and maintenance (O&M) plan for each control device used to comply with the requirements of this subpart. You must maintain a copy of the O&M plan at the facility and make it available for review upon request. At a minimum, each plan must contain the following information:
(1)General facility and contact information;
(2)Positions responsible for inspecting, maintaining, and repairing emissions control devices which are used to comply with this subpart;
(3)Description of items, equipment, and conditions that will be inspected, including an inspection schedule for the items, equipment, and conditions. For baghouses, the O&M plan must include:
(i)If the baghouse is subject to the monitoring requirements in § 63.10897(c), information on how the baghouse system will be operated and maintained, including monitoring of pressure drop across baghouse cells and frequency of visual inspections of the baghouse interior and baghouse components such as dust removal and bag cleaning mechanisms and fans; or
(ii)If the baghouse is subject to the monitoring requirements in § 63.10897(d), the site-specific monitoring plan for each bag leak detection system required in § 63.10897(d)(2).
(4)Identity and estimated quantity of the replacement parts that will be maintained in inventory; and
(5)Procedures for operating and maintaining a continuous parameter monitoring system
(CPMS)in accordance with manufacturer's specifications.
(b)You may use any other O&M, preventative maintenance, or similar plan which addresses the requirements in paragraph (a)(1) through
(5)of this section to demonstrate compliance with the requirements for an O&M plan. § 63.10897 What are my monitoring requirements?
(a)For each wet scrubber applied to emissions from a metal melting furnace, you must use a continuous parameter monitoring system
(CPMS)to measure and record the 3-hour average pressure drop and scrubber water flow rate.
(b)For each electrostatic precipitator applied to emissions from a metal melting furnace, you must measure and record the hourly average voltage and secondary current (or total power input) using a CPMS or check and record the voltage and secondary current (or total power input) at least once a shift.
(c)Except as specified in paragraph
(d)of this section, you must comply with the monitoring and inspection requirements in paragraphs (c)(1) through
(8)of this section for each baghouse applied to emissions from a metal melting furnace. You must record the date and results of each inspection.
(1)Measure and record the pressure drop across each baghouse cell each day.
(2)Confirm that dust is being removed from hoppers through weekly visual inspections or other means of ensuring the proper functioning of removal mechanisms.
(3)Check the compressed air supply for pulse-jet baghouses each day.
(4)Monitor cleaning cycles to ensure proper operation using an appropriate methodology.
(5)Check bag cleaning mechanisms for proper functioning through monthly visual inspection or equivalent means.
(6)Make monthly visual checks of bag tension on reverse air and shaker-type baghouses to ensure that bags are not kinked (kneed or bent) or lying on their sides. You do not have to check for shaker-type baghouses using self-tensioning (spring-loaded) devices.
(7)Confirm the physical integrity of the baghouse through quarterly visual inspections of the baghouse interior for air leaks.
(8)Inspect fans for wear, material buildup, and corrosion through quarterly visual inspections, vibration detectors, or equivalent means.
(d)If you own or operate an existing affected source, you may install, operate, and maintain a bag leak detection system for each negative pressure baghouse or positive pressure baghouse as an alternative to the baghouse monitoring and inspection requirements in paragraph
(c)of this section. If you own or operate a new affected source, you must install, operate, and maintain a bag leak detection system for each negative pressure baghouse or positive pressure baghouse. You must install, operate, and maintain each bag leak detection system according to the requirements in paragraphs (d)(1) through
(3)of this section.
(1)Each bag leak detection system must meet the requirements in paragraphs (d)(1)(i) through
(vii)of this section.
(i)The system must be certified by the manufacturer to be capable of detecting emissions of particulate matter at concentrations of 10 milligrams per actual cubic meter (0.00044 grains per actual cubic foot) or less.
(ii)The bag leak detection system sensor must provide output of relative particulate matter loadings and the owner or operator shall continuously record the output from the bag leak detection system using a strip chart recorder, data logger, or other means.
(iii)The system must be equipped with an alarm that will sound when an increase in relative particulate loadings is detected over the alarm set point established in the operation and maintenance plan, and the alarm must be located such that it can be heard by the appropriate plant personnel.
(iv)The initial adjustment of the system must, at minimum, consist of establishing the baseline output by adjusting the sensitivity (range) and the averaging period of the device, and establishing the alarm set points. If the system is equipped with an alarm delay time feature, you also must adjust the alarm delay time.
(v)Following the initial adjustment, do not adjust the sensitivity or range, averaging period, alarm set point, or alarm delay time. Except, once per quarter, you may adjust the sensitivity of the bag leak detection system to account for seasonable effects including temperature and humidity according to the procedures in the monitoring plan required by paragraph (d)(2) of this section.
(vi)For negative pressure baghouses, induced air baghouses, and positive pressure baghouses that are discharged to the atmosphere through a stack, the bag leak detector sensor must be installed downstream of the baghouse and upstream of any wet scrubber.
(vii)Where multiple detectors are required, the system's instrumentation and alarm may be shared among detectors.
(2)You must prepare a site-specific monitoring plan for each bag leak detection system to be incorporated in your O&M plan. You must operate and maintain each bag leak detection system according to the plan at all times. Each plan must address all of the items identified in paragraphs (d)(2)(i) through
(vi)of this section.
(i)Installation of the bag leak detection system.
(ii)Initial and periodic adjustment of the bag leak detection system including how the alarm set-point will be established.
(iii)Operation of the bag leak detection system including quality assurance procedures.
(iv)Maintenance of the bag leak detection system including a routine maintenance schedule and spare parts inventory list.
(v)How the bag leak detection system output will be recorded and stored.
(vi)Procedures for determining what corrective actions are necessary in the event of a bag leak detection alarm as required in paragraph (d)(3) of this section.
(3)In the event that a bag leak detection system alarm is triggered, you must initiate corrective action to determine the cause of the alarm within 1 hour of the alarm, initiate corrective action to correct the cause of the problem within 24 hours of the alarm, and complete corrective action as soon as practicable, but no later than 10 calendar days from the date of the alarm. You must record the date and time of each valid alarm, the time you initiated corrective action, the correction action taken, and the date on which corrective action was completed. Corrective actions may include, but are not limited to:
(i)Inspecting the bag house for air leaks, torn or broken bags or filter media, or any other condition that may cause an increase in emissions.
(ii)Sealing off defective bags or filter media.
(iii)Replacing defective bags or filter media or otherwise repairing the control device.
(iv)Sealing off a defective baghouse department.
(v)Cleaning the bag leak detection system probe, or otherwise repairing the bag leak detection system.
(vi)Shutting down the process producing the particulate emissions.
(e)You must make monthly inspections of the equipment that is important to the performance of the total capture system (i.e., pressure sensors, dampers, and damper switches). This inspection must include observations of the physical appearance of the equipment (e.g., presence of holes in the ductwork or hoods, flow constrictions caused by dents or accumulated dust in the ductwork, and fan erosion). You must repair any defect or deficiency in the capture system before the next scheduled inspection. You must record the date and results of each inspection and the date of repair of any defect or deficiency.
(f)You must install, operate, and maintain each CPMS or other measurement device according to your O&M plan. You must record all information needed to document conformance with these requirements.
(g)In the event of an exceedance of an established emissions limitation (including operating limit), you must restore operation of the emissions source (including the control device and associated capture system) to its normal or usual manner or operation as expeditiously as practicable in accordance with good air pollution control practices for minimizing emissions. The response shall include minimizing the period of any startup, shutdown or malfunction and taking any necessary corrective actions to restore normal operation and prevent the likely recurrence of the exceedance. You must record the date and time correction action was initiated, the correction action taken, and the date corrective action was completed.
(h)If you choose to comply with an emissions limit in § 63.10895(b) using emissions averaging, you must calculate and record for each calendar month the pounds of PM or total metal HAP per ton of metal melted from the group of all metal melting furnaces at your foundry. You must calculate and record the weighted average pounds per ton emissions rate for the group of all metal melting furnaces at the foundry determined from the performance test procedures in § 63.10898(d) and (e).
(i)Except for, as applicable, monitoring malfunctions, associated repairs, and required quality assurance or control activities (including, as applicable, calibration checks and required zero and span adjustments), you must conduct all continuous monitoring (or must collect data at all required intervals) at all times that the emissions source is operating. Data recorded during monitoring malfunctions, associated repairs, and required quality assurance or quality control activities shall not be used for the purposes of this subpart, including data averages and calculations, or fulfilling a minimum data availability requirement, if applicable. You must use all the data collected during all other periods in assessing the operation of the control device and associated control system. A monitoring malfunction is any sudden, infrequent, and not reasonably preventable failure of the monitoring to provide valid data. Monitoring failures that are caused in part by poor maintenance or careless operation are not malfunctions. § 63.10898 What are my performance test requirements?
(a)You must conduct a performance test to demonstrate initial compliance with the applicable emissions limits for each metal melting furnace or group of all metal melting furnaces that is subject to an emissions limit in § 63.10895(b) and for each building or structure housing foundry operations that is subject to the opacity limit for fugitive emissions in § 63.10895(d). You must conduct the test within 180 days of your compliance date and report the results in your notification of compliance status.
(1)If you own or operate an existing iron and steel foundry, you may choose to submit the results of a prior performance test for PM or total metal HAP that demonstrates compliance with the applicable emissions limit for a metal melting furnace or group of all metal melting furnaces provided the test was conducted within the last 5 years using the methods and procedures specified in this subpart and either no process changes have been made since the test, or you can demonstrate that the results of the performance test, with or without adjustments, reliably demonstrate compliance despite such process changes.
(2)If you own or operate an existing iron and steel foundry and you choose to submit the results of a prior performance test according to paragraph (a)(1) of this section, you must submit a written notification to the Administrator of your intent to use the previous test data no later than 60 days after your compliance date. The notification must contain a full copy of the performance test and contain information to demonstrate, if applicable, that either no process changes have been made since the test, or that the results of the performance test, with or without adjustments, reliably demonstrate compliance despite such process changes.
(b)You must conduct subsequent performance tests to demonstrate compliance with the applicable emissions limit § 63.10895(b) for a metal melting furnace or group of all metal melting furnaces no less frequently than every 5 years and each time you elect to change an operating limit or make a process change likely to increase HAP emissions.
(c)You must conduct each performance test according to the requirements in § 63.7(e)(1), Table 1 to this subpart, and paragraphs
(d)through
(g)of this section.
(d)To determine compliance with the applicable PM or total metal HAP emissions limit in § 63.10895(b) for a metal melting furnace in a lb/ton of metal charged format, compute the process-weighted mass emissions (E <sup>p</sup> ) for each test run using Equation 1 of this section: EP17SE07.000 Where: E <sup>p</sup> = Process-weighted mass emissions of PM or total metal HAP, lb/ton; C = Concentration of PM or total metal HAP, gr/dscf; Q = Volumetric flow rate of stack gas, dscf/hr; T = Total time during a test run that a sample is withdrawn from the stack during melt production cycle, hr; P = Total amount of metal charged during the test run, tons; and K = Conversion factor, 7,000 grains per pound.
(e)To determine compliance with the applicable emissions limit in § 63.10895(b) for a group of all metal melting furnaces using emissions averaging,
(1)Determine and record the monthly average charge rate for each metal melting furnace at your iron and steel foundry for the previous calendar month; and
(2)Compute the mass-weighted PM or total metal HAP using Equation 2 of this section. EP17SE07.001 Where: E <sup>C</sup> = The mass-weighted PM or total metal HAP emissions for the group of all metal melting furnaces at the foundry, lb/ton; E <sup>pi</sup> = Process-weighted mass emissions of PM or total metal HAP for individual emission unit i as determined from the performance test and calculated using Equation 1 of this section, lb/ton; T <sup>ti</sup> = Total tons of metal charged for individual emission unit i for the calendar month prior to the performance test, tons; and n = The total number of metal melting furnaces at the iron and steel foundry.
(3)For an uncontrolled electric induction furnace that is not equipped with a capture system, you may assume an emissions factor of 3 pounds per ton of PM or 0.2 pounds per ton of total metal HAP per ton of metal melted in Equation 2 of this section instead of a measured test value. If the uncontrolled electric induction furnace is equipped with a capture system, you must use a measured test value.
(f)To determine compliance with the applicable PM or total metal HAP emissions limit for a metal melting furnace in § 63.10895(b) when emissions from one or more regulated furnaces are combined with other non-regulated emissions sources, you may demonstrate compliance using the procedures in paragraphs (f)(1) through
(3)of this section.
(1)Determine the PM or total metal HAP process-weighted mass emissions for each of the regulated streams prior to the combination with other exhaust streams or control device.
(2)Measure the flow rate and PM or total metal HAP concentration of the combined exhaust stream both before and after the control device and calculate the mass removal efficiency of the control device using Equation 3 of this section. EP17SE07.002 Where: E <sup>i</sup> = Mass emissions rate of PM or total metal HAP at the control device inlet, lb/hr; E <sup>o</sup> = Mass emissions rate of PM or total metal HAP at the control device outlet, lb/hr.
(3)Meet the applicable emissions limit based on the calculated PM or total metal HAP process-weighted mass emissions for the regulated emissions source using Equation 4 of this section: EP17SE07.003 Where: E <sup>p1released</sup> = Calculated process-weighted mass emissions of PM (or total metal HAP) predicted to be released to the atmosphere from the regulated emissions source, lb/ton; and E <sup>p1i</sup> = Process-weighted mass emissions of PM (or total metal HAP) in the uncontrolled regulated exhaust stream, lb/ton.
(g)To determine compliance with an emissions limit for situations when multiple sources are controlled by a single control device, but only one source operates at a time or other situations that are not expressly considered in paragraphs
(d)through
(f)of this section, you must submit a site- specific test plan to the Administrator for approval according to the requirements in § 63.7(c)(2) and (3).
(h)You must conduct each opacity test for fugitive emissions according to the requirements in § 63.6(h)(5) and Table 1 to this subpart.
(i)You must conduct subsequent performance tests to demonstrate compliance with the opacity limit in § 63.10895(d) no less frequently than every 6 months and each time you make a process change likely to increase fugitive emissions.
(j)In your performance test report, you must certify that the capture system operated normally during the performance test.
(k)You must establish operating limits during the initial performance test according to the requirements in Table 2 of this subpart. You may use a previous performance test conducted prior to September 17, 2007 to establish an operating limit provided the test meets the requirements in paragraph (a)(1) of this section.
(l)You may change the operating limits for a wet scrubber, electrostatic precipitator, or baghouse if you meet the requirements in paragraphs (l)(1) through
(3)of this section.
(1)Submit a written notification to the Administrator of your plan to conduct a new performance test to revise the operating limit.
(2)Conduct a performance test to demonstrate compliance with the applicable emissions limitation in § 63.10895(b).
(3)Establish revised operating limits according to the applicable procedures in Table 2 to this subpart. § 63.10899 What are my recordkeeping and reporting requirements?
(a)In addition to the records required by 40 CFR 63.10, you must maintain records of the information specified in paragraphs (a)(1) through
(12)of this section according to the requirements in § 63.10(b)(1).
(1)Records of your written materials specifications according to § 63.10885(a) and records that demonstrate compliance with the requirements for restricted metallic scrap in § 63.10885(a)(1) or general scrap in § 63.10885(a)(2).
(2)If you are subject to the requirements for a site-specific plan for mercury switch removal in § 63.10885(b)(1), you must:
(i)Maintain records of the number of mercury switches removed or the weight of mercury recovered from the switches and properly managed, the number of vehicles processed, and an estimate of the percent of mercury switches recovered; and
(ii)Submit semiannual reports of the number of mercury switches removed or the weight of mercury recovered from the switches and properly managed, the number of vehicles processed, an estimate of the percent of mercury switches recovered, and certification that the recovered mercury switches were recycled at RCRA-permitted facilities. The semiannual reports must include certification that you have conducted inspections, site visits, or taken other means of corroboration as required under § 63.10885(b)(1)(ii)(C). You must identify which alternative in § 63.10885(b) applies to each scrap provider, contract, or shipment. You may include this information in the semiannual reports required under paragraph
(b)of this section.
(3)If you are subject to the alternative for approved mercury programs under § 63.10885(b)(2), you must maintain records identifying each scrap provider and documenting the scrap provider's participation in an approved mercury switch removal program.
(4)Records to document use of binder chemical formulation that does not contain methanol as a specific ingredient of the catalyst formulation for each furfuryl alcohol warm box mold or core making line as required by § 63.10886. These records must be the Material Safety Data Sheet (provided that it contains appropriate information), a certified product data sheet, or a manufacturer's hazardous air pollutant data sheet.
(5)Records of the annual quantity and composition of each HAP-containing chemical binder or coating material used to make molds and cores. These records must be copies of purchasing records, Material Safety Data Sheets, or other documentation that provide information on the binder or coating materials used.
(6)Records of monthly metal melt production for each calendar year.
(7)Operation and maintenance plan as required by § 63.10896(a) and records that demonstrate compliance with plan requirements.
(8)If you use emissions averaging, records of monthly metal melting rate for each furnace at your iron and steel foundry, and records of the calculated pounds of PM or total metal HAP per ton of metal melted for the group of all metal melting furnaces required by § 63.10897(h).
(9)Records of baghouse monitoring and inspections required by § 63.10897(c) or, if applicable, records for bag leak detection systems as follows:
(i)Records of the bag leak detection system output;
(ii)Records of bag leak detection system adjustments, including the date and time of the adjustment, the initial bag leak detection system settings, and the final bag leak detection system settings; and
(iii)The date and time of all bag leak detection system alarms, and for each valid alarm, the time you initiated corrective action, the corrective action taken, and the date on which corrective action was completed.
(10)Records of capture system inspections and repairs as required by § 63.10897(e).
(11)Records demonstrating conformance with your O&M plan and specifications for the operation of CPMS as required by § 63.10897(f).
(12)Records of corrective action(s) for exceedances and excursions as required by § 63.10897(h).
(b)You must submit semiannual reports to the Administrator according to the requirements in § 63.10(e). The reports must include, at a minimum, the following information as applicable:
(1)Summary information on the number, duration, and cause (including unknown cause, if applicable) of excursions or exceedances, as applicable, and the corrective action taken;
(2)Summary information on the number, duration, and cause (including unknown cause, if applicable) for monitor downtime incidents (other than downtime associated with zero and span or other calibration checks, if applicable); and
(3)Summary information on any deviation from the pollution prevention management practices in §§ 63.10885 and 63.10886 and the operation and maintenance requirements in § 63.10896 and the corrective action taken. § 63.10900 What parts of the General Provisions apply to me?
(a)If you own or operate a new or existing affected source, you must comply with the requirements of the General Provisions (40 CFR part 63, subpart A) according to Table 3 of this subpart.
(b)Your notification of compliance status required by § 63.9(h) must include each applicable certification of compliance, signed by a responsible official, in Table 4 of this subpart. Other Requirements and Information § 63.10905 Who implements and enforces this subpart?
(a)This subpart can be implemented and enforced by EPA or a delegated authority such as your State, local, or tribal agency. If the EPA Administrator has delegated authority to your State, local, or tribal agency, then that agency, in addition to the EPA, has the authority to implement and enforce this subpart. You should contact your EPA Regional Office to find out if implementation and enforcement of this subpart is delegated to your State, local, or tribal agency.
(b)In delegating implementation and enforcement authority of this subpart to a State, local, or tribal agency under 40 CFR part 63, subpart E, the authorities contained in paragraph
(c)of this section are retained by the EPA Administrator and are not transferred to the State, local, or tribal agency.
(c)The authorities that cannot be delegated to State, local, or tribal agencies are specified in paragraphs (c)(1) through
(4)of this section.
(1)Approval of an alternative non-opacity emissions standard under 40 CFR 63.6(g).
(2)Approval of an alternative opacity emissions standard under § 63.6(h)(9).
(3)Approval of a major change to test methods under § 63.7(e)(2)(ii) and (f). A “major change to test method” is defined in § 63.90.
(4)Approval of a major change to monitoring under § 63.8(f). A “major change to monitoring” under is defined in § 63.90.
(5)Approval of a major change to recordkeeping and reporting under § 63.10(f). A “major change to recordkeeping/reporting” is defined in § 63.90. § 63.10906 What definitions apply to this subpart? Terms used in this subpart are defined in the Clean Air Act, in § 63.2, and in this section. *Bag leak detection system* means a system that is capable of continuously monitoring relative particulate matter
(dust)loadings in the exhaust of a baghouse to detect bag leaks and other upset conditions. A bag leak detection system includes, but is not limited to, an instrument that operates on triboelectric, electrodynamic, light scattering, light transmittance, or other effect to continuously monitor relative particulate matter loadings. *Binder chemical* means a component of a system of chemicals used to bind sand together into molds, mold sections, and cores through chemical reaction as opposed to pressure. *Capture system* means the collection of components used to capture gases and fumes released from one or more emissions points and then convey the captured gas stream to a control device or to the atmosphere. A capture system may include, but is not limited to, the following components as applicable to a given capture system design: duct intake devices, hoods, enclosures, ductwork, dampers, manifolds, plenums, and fans. *Cupola* means a vertical cylindrical shaft furnace that uses coke and forms of iron and steel such as scrap and foundry returns as the primary charge components and melts the iron and steel through combustion of the coke by a forced upward flow of heated air. *Deviation* means any instance in which an affected source or an owner or operator of such an affected source:
(1)Fails to meet any requirement or obligation established by this subpart including, but not limited to, any emissions limitation (including operating limits), management practice, or operation and maintenance requirement;
(2)Fails to meet any term or condition that is adopted to implement an applicable requirement in this subpart and that is included in the operating permit for any iron and steel foundry required to obtain such a permit; or
(3)Fails to meet any emissions limitation (including operating limits) or management standard in this subpart during startup, shutdown, or malfunction, regardless of whether or not such failure is permitted by this subpart. *Electric arc furnace* means a vessel in which forms of iron and steel such as scrap and foundry returns are melted through resistance heating by an electric current flowing through the arcs formed between the electrodes and the surface of the metal and also flowing through the metal between the arc paths. *Electric induction furnace* means a vessel in which forms of iron and steel such as scrap and foundry returns are melted though resistance heating by an electric current that is induced in the metal by passing an alternating current through a coil surrounding the metal charge or surrounding a pool of molten metal at the bottom of the vessel. *Exhaust stream* means gases emitted from a process through a conveyance as defined in this subpart. *Foundry operations* means all process equipment and practices used to produce metal castings for shipment. *Foundry operations* include: mold or core making and coating; scrap handling and preheating; metal melting and inoculation; pouring, cooling, and shakeout; shotblasting, grinding, and other metal finishing operations; and sand handling. *Free liquids* means material that fails the paint filter test by EPA Method 9095B (incorporated by reference—see § 63.14). That is, if any portion of the material passes through and drops from the filter within the 5-minute test period, the material contains free liquids. *Furfuryl alcohol warm box mold or core making line* means a mold or core making line in which the binder chemical system used is that system commonly designated as a furfuryl alcohol warm box system by the foundry industry. *Iron and steel foundry* means a facility or portion of a facility that melts scrap, ingot, and/or other forms of iron and/or steel and pours the resulting molten metal into molds to produce final or near final shape products for introduction into commerce. Research and development facilities and operations that only produce non-commercial castings are not included in this definition. *Large iron and steel foundry* means an iron and steel foundry with a metal melt production greater than 10,000 tons per year. *Metal charged* means the quantity of scrap metal, pig iron, metal returns, alloy materials, and other solid forms of iron and steel placed into a metal melting furnace. Metal charged does not include the quantity of fluxing agents or, in the case of a cupola, the quantity of coke that is placed into the metal melting furnace. *Metal melting furnace* means a cupola, electric arc furnace, electric induction furnace, or similar device that converts scrap, foundry returns, and/or other solid forms of iron and/or steel to a liquid state. This definition does not include a holding furnace, an argon oxygen decarburization vessel, or ladle that receives molten metal from a metal melting furnace, to which metal ingots or other material may be added to adjust the metal chemistry. *Metal melt production* means the quantity of metal melted in a metal melting furnace or group of all metal melting furnaces at the iron and steel foundry. For the purposes of this subpart, metal melt production is determined on the basis on the quantity of metal charged to each metal melting furnace; the sum of the metal melt production rates for each furnace is the total metal melt production of the foundry. *Mold or core making line* means the collection of equipment that is used to mix an aggregate of sand and binder chemicals, form the aggregate into final shape, and harden the formed aggregate. This definition does not include a line for making green sand molds or cores. *Responsible official* means responsible official as defined in § 63.2. *Scrap preheater* means a vessel or other piece of equipment in which metal scrap that is to be used as melting furnace feed is heated to a temperature high enough to eliminate volatile impurities or other tramp materials by direct flame heating or similar means of heating. Scrap dryers, which solely remove moisture from metal scrap, are not considered to be scrap preheaters for purposes of this subpart. *Scrubber blowdown* means liquor or slurry discharged from a wet scrubber that is either removed as a waste stream or processed to remove impurities or adjust its composition or pH *Small iron and steel foundry* means an iron and steel foundry that has a metal melt production of 10,000 tons per year or less. *Total metal HAP* means, for the purposes of this subpart, the sum of the concentrations of compounds of antimony, arsenic, beryllium, cadmium, chromium, cobalt, lead, manganese, mercury, nickel, and selenium as measured by EPA Method 29 (40 CFR part 60, appendix A). Tables to Subpart ZZZZZ of Part 63 As required in § 63.10898(c), you must conduct performance tests according to the test methods and procedures in the following table. Table 1 to Subpart ZZZZZ of Part 63.—Performance Test Requirements for Large Iron and Steel Foundries For . . . You must . . . According to the following requirements . . . 1. Each metal melting furnace subject to a PM or total metal HAP limit in § 63.10895(b) a. Select sampling port locations and the number of traverse points in each stack or duct using EPA Method 1 or 1A (40 CFR part 60, appendix A) Sampling sites must be located at the outlet of the control device (or at the outlet of the emissions source if no control device is present) prior to any releases to the atmosphere. b. Determine volumetric flow rate of the stack gas using Method 2, 2A, 2C, 2D, 2F, or 2G (40 CFR part 60, appendix A) c. Determine dry molecular weight of the stack gas using EPA Method 3, 3A, or 3B (40 CFR part 60, appendix A) 1 d. Measure moisture content of the stack gas using EPA Method 4 (40 CFR part 60, appendix A) e. Determine PM concentration using EPA Method 5, 5B, 5D, 5F, or 5I, as applicable or total metal HAP concentration using EPA Method 29 (40 CFR part 60, appendix A) i. Collect a minimum sample volume of 60 dscf of gas during each PM sampling run. The PM concentration is determined using only the front-half (probe rinse and filter) of the PM catch. ii. For Method 29, only the measured concentration of the listed metal HAP analytes that are present at concentrations exceeding one-half the quantification limit of the analytical method are to be used in the sum. If any of the analytes are not detected or are detected at concentrations less than one-half the quantification limit of the analytical method, the concentration of those analytes is assumed to be zero for the purposes of calculating the total metal HAP. iii. A minimum of three valid test runs are needed to comprise a PM or total metal HAP performance test. iv. For cupola metal melting furnaces, sample PM or total metal HAP only during times when the cupola is on blast. v. For electric arc and electric induction metal melting furnaces, sample PM or total metal HAP only during normal melt production conditions, which may include, but are not limited to the following operations: charging, melting, alloying, refining, slagging, and tapping. vi. Determine and record the total combined weight of tons of metal charged during the duration of each test run. You must compute the process-weighted mass emissions of PM according to Equation 1 of § 63.10898(d) for an individual furnace or Equation 2 of § 63.10898(e) for the group of all metal melting furnaces at the foundry. 2. Fugitive emissions from buildings or structures housing any iron and steel foundry emissions sources subject to opacity limit in § 63.10895(f) Using a certified observer, conduct each opacity test according to EPA Method 9 (40 CFR part 60, appendix A) and 40 CFR 63.6(h)(5) i. The certified observer may identify a limited number of openings or vents that appear to have the highest opacities and perform opacity observations on the identified openings or vents in lieu of performing observations for each opening or vent from the building or structure. Alternatively, a single opacity observation for the entire building or structure may be performed, if the fugitive release points afford such an observation. ii. During testing intervals when PM or total metal HAP performance tests, if applicable, are being conducted, conduct the opacity test such that the opacity observations are recorded during the PM or total metal HAP performance tests. 1 You may also use as an alternative to EPA Method 3B (40 CFR part 60, appendix A), the manual method for measuring the oxygen, carbon dioxide, and carbon monoxide content of exhaust gas, ANSI/ASME PTC 19.10-1981, “Flue and Exhaust Gas Analyses” (incorporated by reference—see § 63.14). As required in § 63.10898(k), you must establish operating limits using the procedures in the following table. Table 2 to Subpart ZZZZZ of Part 63.—Procedures for Establishing Operating Limits for Large Iron and Steel Foundries For . . . You must . . . 1. Each wet scrubber subject to the operating limits in § 63.10895(c)(1) for pressure drop and scrubber water flow rate Using the CPMS required in § 63.10897(a), measure and record the pressure drop and scrubber water flow rate in intervals of no more than 15 minutes during each PM or total metal HAP test run. Compute and record the average pressure drop and average scrubber water flow rate for each valid sampling run in which the applicable emissions limit is met. 2. Each electrostatic precipitator subject to operating limits in § 63.10895(c)(2) for voltage and secondary current (or total power input) Measure and record voltage and secondary current (or total power input) manually or by CPMS every 15 minutes during each PM or total metal HAP test run. Compute and record the minimum hourly average voltage and secondary current (or total power input) from all the readings for each valid sampling run in which the applicable emissions limit is met. 3. Each baghouse subject to the operating limit in § 63.10895(c)(3) for pressure drop Measure and record the minimum and maximum pressure drop across each baghouse cell during each PM or total metal HAP test run. Compute and record the average minimum and maximum pressure drop values for the three runs. As required in § 63.10900(a), you must meet each requirement in the following table that applies to you. Table 3 to Subpart ZZZZZ of Part 63.—Applicability of General Provisions to Large Iron and Steel Foundries Citation Subject Applies to large iron and steel foundry? Explanation 63.1 Applicability Yes. 63.2 Definitions Yes. 63.3 Units and abbreviations Yes. 63.4 Prohibited activities Yes. 63.5 Construction/Reconstruction Yes. 63.6(a)-(g) Compliance with standards and maintenance requirements Yes. 63.6(h) Opacity and visible emissions standards Yes. 63.6(i)(i)-(j) Compliance extension and Presidential compliance exemption Yes. 63.7(a)(3), (b)-(h) Performance testing requirements Yes. 63.7(a)(1)-(a)(2) Applicability and performance test dates No Subpart ZZZZZ specifies applicability and performance test dates. 63.8(a)(1)-(a)(3),(b), (c)(1)-(c)(3), (c)(6)-(c)(8), (d), (e), (f)(1)-(f)(6),(g)(1)-(g)(4) Monitoring requirements Yes. 63.8(a)(4) Additional monitoring requirements for control devices in § 63.11 No. 63.8(c)(4) Continuous monitoring system
(CMS)requirements No. 63.8(c)(5) Continuous opacity monitoring system
(COMS)Minimum Procedures No. 63.8(g)(5) Data reduction No. 63.9 Notification requirements Yes. 63.10(a), (b)(1)-(b)(2)(xii)-(b)(2)(xiv), (b)(3), (d)(1)-(2), (e)(1)-(2),
(f)Recordkeeping and reporting requirements Yes. 63.10(c)(1)-(6), (c)(9)-(15) Additional records for continuous monitoring systems No. 63.10(c)(7)-(8) Records of excess emissions and parameter monitoring exceedances for CMS Yes. 63.10(d)(3) Reporting opacity or visible emissions observations Yes. 63.10(e)(3) Excess emissions reports Yes. 63.10(e)(4) Reporting COMS data No. 63.11 Control device requirements No. 63.12 State authority and delegations Yes. 63.13-63.16 Addresses of State air pollution control agencies and EPA regional offices. Incorporation by reference. Availability of information and confidentiality. Performance track provisions Yes. As required by § 63.10900(b), your notification of compliance status must include certifications of compliance according to the following table. Table 4 to Subpart ZZZZZ of Part 63.—Compliance Certifications for Large Iron and Steel Foundries For . . . Your notification of compliance status required by § 63.9(h) must include this certification of compliance, signed by a responsible official: Each new or existing affected source subject to scrap management requirements in § 63.10885(a)(1) or
(2)“This facility has prepared, and will operate by, written material specifications for metallic scrap according to § 63.10885(a)(1)” or “This facility has prepared, and will operate by, written material specifications for general iron and steel scrap according to § 63.10890(a)(2).” Each new or existing affected source subject to mercury switch removal requirements in § 63.10885(b) “This facility has prepared, and will operate by, written material specifications for the removal of mercury switches and a site-specific plan implementing the material specifications according to § 63.10890(b)(1)” or “This facility participates in and purchases motor vehicles scrap only from scrap providers who participate in a program for removal of mercury switches that has been approved by the Administrator according to § 63.10890(b)(2)” or “This facility complies with the alternative requirements in § 63.10890(b)(3) for specialty metal scrap and will recover only materials from motor vehicles for their specialty alloy content that are not reasonably expected to contain mercury switches.” Each new or existing affected source subject to § 63.10886 “This facility complies with the no methanol requirement for the catalyst portion of each binder chemical formulation for a furfuryl alcohol warm box mold or core making line according to § 63.10886.” Each new or existing affected source subject to § 63.10895(a) “This facility operates a capture and collection system for each emissions source subject to this subpart according to § 63.10895(a).” Each existing affected source subject to § 63.10895(b) “This facility complies with the PM or total metal HAP emissions limit in § 63.10895(b) for each metal melting furnace or group of all metal melting furnaces based on a previous performance test in accordance with § 63.10898(a)(1).” Each new or existing affected source subject to 63.10896(a) “This facility has prepared and will operate by an operation and maintenance plan according to § 63.10896(a).” Each new or existing affected source subject to § 63.10896(c) “This facility has prepared and will operate by an emissions averaging plan according to § 63.10896(c).” Each new or existing affected source subject to § 63.10897(d) “This facility has prepared and will operate by a site-specific monitoring plan for each bag leak detection system and submitted the plan to the Administrator for approval according to § 63.10897(d)(2).” [FR Doc. E7-17972 Filed 9-14-07; 8:45 am] BILLING CODE 6560-50-P 72 179 Monday, September 17, 2007 Rules and Regulations Part IV Department of Homeland Security 8 CFR Parts 103, 212, et al. New Classification for Victims of Criminal Activity; Eligibility for “U” Nonimmigrant Status; Interim Rule DEPARTMENT OF HOMELAND SECURITY 8 CFR Parts 103, 212, 214, 248, 274a and 299 [CIS No. 2170-05; DHS Docket No. USCIS-2006-0069] RIN 1615-AA67 New Classification for Victims of Criminal Activity; Eligibility for “U” Nonimmigrant Status AGENCY: U.S. Citizenship and Immigration Services, DHS. ACTION: Interim rule with request for comments. SUMMARY: This interim rule amends Department of Homeland Security regulations to establish the requirements and procedures for aliens seeking U nonimmigrant status. The U nonimmigrant classification is available to alien victims of certain criminal activity who assist government officials in investigating or prosecuting such criminal activity. The purpose of the U nonimmigrant classification is to strengthen the ability of law enforcement agencies to investigate and prosecute such crimes as domestic violence, sexual assault, and trafficking in persons, while offering protection to alien crime victims in keeping with the humanitarian interests of the United States. This interim rule outlines the eligibility and application requirements for the U nonimmigrant classification and the benefits and limitations relating to those granted U nonimmigrant status. This interim rule also amends existing regulations to include U nonimmigrants among the nonimmigrant status holders able to seek a waiver of documentary requirements to gain admission to the United States, and to permit nonimmigrants to change status to that of a U nonimmigrant where applicable. This rule also establishes a filing fee for U nonimmigrant petitions. Aliens who have been granted interim relief from USCIS are encouraged to file for U nonimmigrant status within 180 days of the effective date of this interim rule. USCIS will no longer issue interim relief upon the effective date of this rule; however, if the alien has properly filed a petition for U nonimmigrant status, but USCIS has not yet adjudicated that petition, interim relief will be extended until USCIS completes its adjudication of the petition. DATES: *Effective date.* This rule is effective October 17, 2007. *Comment date.* Written comments must be submitted on or before November 16, 2007. ADDRESSES: You may submit comments, identified by DHS Docket No. USCIS-2006-0069 by one of the following methods: • *Federal eRulemaking Portal: http://www.regulations.gov.* Follow the instructions for submitting comments. • *Mail:* Chief, Regulatory Management Division, U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529. To ensure proper handling, please reference DHS Docket No. USCIS-2006-0069 on your correspondence. This mailing address may also be used for paper, disk, or CD-ROM submissions. • *Hand Delivery/Courier:* Regulatory Management Division, U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529. Contact Telephone Number
(202)272-8377. FOR FURTHER INFORMATION CONTACT: Laura Dawkins, U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529, telephone:
(202)272-8350. SUPPLEMENTARY INFORMATION: This supplemental information section is organized as follows: I. Public Participation II. Background and Legislative Authority III. Analysis of Requirements and Procedures Under This Interim Rule A. Eligibility Requirements for U Nonimmigrant Status 1. Victims of Qualifying Criminal Activity Who Have Suffered Physical or Mental Abuse 2. Possession of Information Concerning the Qualifying Criminal Activity 3. Helping Law Enforcement in the Investigation or Prosecution of Criminal Activity 4. Criminal Activity That Violated U.S. Law or Occurred in the United States B. Application Process 1. Filing the Petition to Request U Nonimmigrant Status 2. Initial Evidence 3. Derivative Family Members 4. Designations C. Adjudication and Post-Adjudication 1. Credible Evidence 2. Prohibitions on Disclosure of Information 3. Annual Numerical Limitation on Grants of U Nonimmigrant Status 4. Decision on Petitions 5. Benefits for U Nonimmigrants 6. Travel Outside the United States 7. Revocation of U Nonimmigrant Status 8. Removal Proceedings D. Filing and Biometric Services Fees IV. Regulatory Requirements A. Administrative Procedure Act B. Regulatory Flexibility Act C. Unfunded Mandates Reform Act of 1995 D. Small Business Regulatory Enforcement Fairness Act of 1996 E. Executive Order 12866 (Regulatory Planning and Review) F. Executive Order 13132 (Federalism) G. Executive Order 12988 (Civil Justice Reform) H. Family Assessment I. Paperwork Reduction Act I. Public Participation Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of this interim rule. U.S. Citizenship and Immigration Services (USCIS) also invites comments that relate to the economic, environmental, or federalism effects that might result from this interim rule. Comments that will provide the most assistance to USCIS in developing these procedures will reference a specific portion of the interim rule, explain the reason for any recommended change, and include data, information, or authority that support such recommended change. *Instructions:* All submissions received must include the agency name and DHS Docket No. USCIS-2006-0069. All comments received will be posted without change to *http://www.regulations.gov,* including any personal information provided. *Docket:* For access to the docket to read background documents or comments received go to *http://www.regulations.gov.* Submitted comments may also be inspected at the Regulatory Management Division, U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529. II. Background and Legislative Authority Congress created the U nonimmigrant classification in the Battered Immigrant Women Protection Act of 2000 (BIWPA). *See* Victims of Trafficking and Violence Protection Act of 2000, div. B, Violence Against Women Act of 2000, tit. V, Battered Immigrant Women Protection Act of 2000, Pub. L. 106-386, sec. 1513, 114 Stat. 1464, 1533-37 (2000), *amended by* Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA 2005), tit. VIII, Pub. L. 109-162, 119 Stat. 2960 (2006), *amended by* Violence Against Women and Department of Justice Reauthorization Act—Technical Corrections, Pub. L. 109-271, 120 Stat. 750 (2006). Alien victims may not have legal status and, therefore may be reluctant to help in the investigation or prosecution of criminal activity for fear of removal from the United States. In passing this legislation, Congress intended to strengthen the ability of law enforcement agencies to investigate and prosecute cases of domestic violence, sexual assault, trafficking of aliens and other crimes while offering protection to victims of such crimes. See BIWPA, sec. 1513(a)(2)(A). Congress also sought to encourage law enforcement officials to better serve immigrant crime victims. *Id.* The U nonimmigrant classification was established under section 1513(b) of the BIWPA. Notwithstanding the title of the legislation, the U nonimmigrant classification is available to qualified victims of crimes, without regard to gender. The U nonimmigrant classification provides temporary immigration benefits to certain victims of criminal activity who:
(1)Have suffered substantial mental or physical abuse as a result of having been a victim of criminal activity;
(2)have information regarding the criminal activity; and
(3)assist government officials in the investigation and prosecution of such criminal activity. USCIS can only grant U nonimmigrants status to 10,000 principal aliens in each fiscal year. *See* INA sec. 214(p)(2), 8 U.S.C. 1184 (p)(2). (Note: this number does not include persons eligible for U nonimmigrant derivative status—e.g. spouses, children, or parents of applicants—as discussed in Section III. C. of this rule below). Aliens granted U nonimmigrant status can remain in the United States for a period of up to four years, with possible extensions upon certification of need by certain government officials. INA sec. 214(p)(6), 8 U.S.C. 1184(p)(6). Section 1513(f) of the BIWPA provides DHS with discretion to convert the temporary U nonimmigrant status to permanent resident status if
(1)the alien has been physically present in the United States for a continuous period of at least three years since the date of admission as a U nonimmigrant; and
(2)DHS determines that the “alien's continued presence in the United States is justified on humanitarian grounds, to ensure the family unity, or is otherwise in the public interest.” To qualify for the U nonimmigrant classification: • The alien must have suffered substantial physical or mental abuse as a result of having been a victim of qualifying criminal activity; • The alien must be in possession of information about the criminal activity of which he or she has been a victim; • The alien must be of assistance to a Federal, State, or local law enforcement official or prosecutor, a Federal or State judge, the Department of Homeland Security (DHS), or other Federal, State, or local authority investigating or prosecuting criminal activity; and • The criminal activity must have violated U.S. law or occurred in the United States (including Indian country and military installations) or the territories and possessions of the United States. INA sec. 101(a)(15)(U)(i), 8 U.S.C. 1101(a)(15)(U)(i). Qualifying criminal activity is defined by statute to be “activity involving one or more of the following or any similar activity in violation of Federal, State, or local criminal law: Rape; torture; trafficking; incest; domestic violence; sexual assault; abusive sexual contact; prostitution; sexual exploitation; female genital mutilation; being held hostage; peonage; involuntary servitude; slave trade; kidnapping; abduction; unlawful criminal restraint; false imprisonment; blackmail; extortion; manslaughter; murder; felonious assault; witness tampering; obstruction of justice; perjury; or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes[.]” Id.,(iii). The list of qualifying crimes represents the myriad types of behavior that can constitute domestic violence, sexual abuse, or trafficking, or are crimes of which vulnerable immigrants are often targeted as victims. U nonimmigrant status can also extend to certain family members of the alien victim. If the alien victim is under 21 years of age, the victim's spouse, children, unmarried siblings under 18 years of age, and the victim's parents may qualify for U nonimmigrant status. INA sec. 101(a)(15)(U)(ii)(I), 8 U.S.C. 1101(a)(15)(U)(ii)(I). If the alien victim is 21 years of age or older, his or her spouse and children may also qualify for U nonimmigrant status. INA sec. 101(a)(15)(U)(ii)(II), 8 U.S.C. 1101(a)(15)(U)(ii)(II). Aliens applying for U nonimmigrant status must provide a certification from a Federal, State or Local law enforcement official demonstrating that the applicant “has been helpful, is being helpful, or is likely to be helpful” in the investigation or prosecution of the qualifying criminal activity. INA sec. 214(o), 8 U.S.C. 1184(o). The BIWPA further directs DHS to provide aliens who are eligible for U nonimmigrant status with referrals to nongovernmental organizations
(NGOs)to advise the aliens regarding their options in the United States. Id. Further, USCIS is required to provide U nonimmigrants with employment authorization. Id. Section 1513(e) of the BIWPA amended section 212(d) of the INA, 8 U.S.C. 1182(d), to provide for a waiver of inadmissibility if the Secretary of Homeland Security determines that such a waiver is in the public or national interest. 1 Finally, the BIWPA added a new paragraph (1)(E) to 8 U.S.C. 1367(a) to prohibit adverse determinations of admissibility or deportability and disclosure of information pertaining to an alien seeking U nonimmigrant status, except in certain circumstances. BIWPA sec. 1513(d) (amending section 384(a) of the Illegal Immigration and Immigrant Reform Act (IIRIRA), div. C of the Omnibus Appropriations Act of 1996, Pub. L. 104-208, 110 Stat. 3009 (1996)). 1 Unless waived, a ground of inadmissibility can preclude an alien from receiving nonimmigrant status. 8 CFR 214.1(a)(3). Section 212(a) of the INA, 8 U.S.C. 1182(a), contains a list of the grounds of inadmissibility. Following passage of the BIWPA in October 2000, USCIS implemented procedures to ensure that those aliens who appeared to be eligible for U nonimmigrant status under the BIWPA would not be removed from the United States until they had an opportunity to apply for such status. See *e.g.* , Memorandum from Michael D. Cronin, Acting Executive Associate Commissioner, Office of Field Operations, Immigration and Naturalization Service (Aug. 30, 2001); Memorandum from William R. Yates, Associate Director of Operations, USCIS, Centralization of Interim Relief for U Nonimmigrant Status Applicants (Oct. 8, 2003) ( *http://www.uscis.gov/graphics/services/tempbenefits/antitraf.htm* ); Memorandum from William R. Yates, Associate Director of Operations, USCIS, Assessment of Deferred Action in Requests for Interim Relief from U Nonimmigrant Status Eligible Aliens in Removal Proceedings (May 6, 2004) ( *http://www.uscis.gov/graphics/services/tempbenefits/antitraf.htm* ). 2 Alien victims who may be eligible for U nonimmigrant status were given the opportunity to ask USCIS for interim relief pending the promulgation of implementing regulations. Family members seeking to derive immigration benefits from such aliens were accorded the same treatment. Interim relief provides alien victims with parole, stays of removal, or assessed deferred action, as well as an opportunity to apply for employment authorization. 3 2 Copies of these documents are accessible on the public docket for this rulemaking at *www.regulations.gov,* Docket Number USCIS-2006-0069. 3 Parole is permission given by DHS that allows an alien to physically enter the United States temporarily for urgent humanitarian reasons or significant public benefit; the entry is not deemed to be an admission to the United States. INA 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A); 8 CFR 212.5. A stay of deportation or removal is an administrative decision to stop temporarily the deportation or removal of an alien who has been ordered deported or removed from the United States. See 8 CFR 241.6; 8 CFR 1241.6. Deferred action is an exercise of prosecutorial discretion that defers the removal of the alien based on the alien's case being made a lower priority for removal. Immigration and Customs Enforcement, Department of Homeland Security, Detention and Deportation Officer's Field Manual, ch. 20.8 (2005). Deferred action does not confer any immigration status upon an alien. III. Analysis of Requirements and Procedures Under This Interim Rule To implement the BIWPA and its creation of the U nonimmigrant classification, this interim rule outlines the eligibility and application requirements for the U nonimmigrant classification and the benefits and limitations relating to those granted U nonimmigrant status. Specifically, this interim rule provides definitions of relevant terms contained in the BIWPA and establishes procedures and standards for adjudicating petitions for U nonimmigrant status. It also describes the filing procedures and adjudication standards for applications for the waiver of inadmissibility created by the BIWPA that is available to those seeking U nonimmigrant status. New 8 CFR 212.17. The rule amends 8 CFR 212.1 to include U nonimmigrant status recipients among the nonimmigrant status holders able to seek a waiver of documentary requirements to gain admission to the United States. This rule also amends 8 CFR 248.2 to permit nonimmigrants to change status to that of a U nonimmigrant; 8 CFR 274a.12(a) to add U nonimmigrant status recipients to the list of aliens authorized to accept employment; 8 CFR 274a.13(a) to require an application to be filed for certain U nonimmigrants seeking evidence of employment authorization; 8 CFR 299.1 to prescribe the petition form for U nonimmigrant status; and 8 CFR 103.7 to prescribe the filing fee for U nonimmigrant petitions. As discussed below, USCIS encourages petitioners and accompanying or following to join family members who have been granted interim relief to file Form I-918 within 180 days of the effective date of this rule. After the effective date of this rule, the interim relief process will no longer be in effect, and USCIS will not consider initial requests for interim relief. After the 180-day time period, USCIS will reevaluate previous grants of deferred action, parole, and stays of removal and terminate such interim relief for those aliens who fail to file Form I-918 within the 180-day time period. However, if the alien has properly filed a Form I-918, but USCIS has not yet adjudicated that petition, interim relief will be extended until USCIS completes its adjudication of Form I-918. A. Eligibility Requirements for U Nonimmigrant Status There are four statutory eligibility requirements for U nonimmigrant status, the alien
(1)Has suffered physical or mental abuse as a result of having been a victim of certain criminal activity;
(2)possesses information concerning such criminal activity;
(3)has been helpful, is being helpful or is likely to be helpful in the investigation or prosecution of the crime; and
(4)the criminal activity violated the laws of the United States or occurred in the United States. This section of the Supplementary Information describes each statutory eligibility requirement for U nonimmigrant status and this rule's implementation of each requirement. 1. Victims of Qualifying Criminal Activity Who Have Suffered Physical or Mental Abuse The first eligibility requirement for U nonimmigrant status is that the alien must have suffered substantial physical or mental abuse as a result of having been a victim of qualifying criminal activity. INA sec. 101(a)(15)(U)(i)(I), 8 U.S.C. 1101(a)(15)(U)(i)(I). This interim rule defines the following terms that relate to this eligibility requirement: Victims of qualifying criminal activity, physical or mental abuse, and qualifying crime or qualifying criminal activity. New 8 CFR 214.14(a). These definitions are discussed below. a. Victims of Qualifying Criminal Activity The meaning of “victim of qualifying criminal activity” is provided by new 8 CFR 214.14(a)(14). Within this definition, the rule provides for indirect victims of the criminal activities in the case of deceased victims of murder and manslaughter and victims of violent criminal activity who are incapacitated or incompetent. See new 8 CFR 214.14(a)(14)(i). The definition also clarifies how victims of witness tampering, obstruction of justice, and perjury can constitute victims of qualifying criminal activity. *See* new 8 CFR 214.14(a)(14)(ii). This interim rule also excludes alien victims who are themselves culpable of criminal activity from the definition of victim, subject to certain exceptions. *See* 8 CFR 214.14(a)(14)(iii).
(i)Direct Victims This rule generally defines “victim of qualifying criminal activity” as an alien who is directly and proximately harmed by qualifying criminal activity. 8 CFR 214.14(a)(14). To formulate the general definition, USCIS drew from established definitions of “victim.” Federal statutory provisions consistently define “victim” as one who has suffered direct harm or who is directly and proximately harmed as a result of the commission of a crime. *See e.g.* , 42 U.S.C. 10603(c) (relating to terrorism); 18 U.S.C. 3663(a)(2) (relating to restitution); 18 U.S.C. 3771(e) (relating to crime victim rights); Fed. R. Crim. P. 32(a)(2) (defining victim for sentencing purposes); *see also United States* v. *Terry,* 142 F.3d 702, 710-11 (4th Cir. 1998) (reviewing the possible definitions of “victim”). The Department of Justice's (DOJ's) Attorney General Guidelines for Victim and Witness Assistance (AG Guidelines) adopts a similar definition of the term “victim.” See Attorney General Guidelines for Victim and Witness Assistance at 9 (May 2005) ( *http://www.ojp.usdoj.gov/ovc/publications/welcome.html* ). The AG Guidelines serve to guide federal investigative, prosecutorial, and correctional agencies in the treatment of crime victims and, therefore, were viewed by USCIS as an informative resource in the development of this rule's definition of victim. 4 4 The AG Guidelines, and some of the aforementioned statutes, also include pecuniary crimes within the scope of qualifying activities. The BIWPA, however, limits the qualification requirements to aliens who suffer substantial physical or mental abuse and did not expressly reference pecuniary crimes. Therefore, pecuniary crimes are not included as qualifying criminal activities for U nonimmigrant status. In addition, the AG Guidelines include business entities in the definition of “victim.” USCIS, however, only grants non-immigrant status to individuals, not to business entities and therefore limits the definition of “victim” under this rule to persons. The AG Guidelines also state that individuals whose injuries arise only indirectly from an offense are not generally entitled to rights or services as victims. AG Guidelines at 10. The AG Guidelines, however, provide DOJ personnel discretion to treat as victims bystanders who suffer unusually direct injuries as victims. USCIS does not anticipate approving a significant number of applications from bystanders, but will exercise its discretion on a case-by-case basis to treat bystanders as victims where that bystander suffers an unusually direct injury as a result of a qualifying crime. An example of an unusually direct injury suffered by a bystander would be a pregnant bystander who witnesses a violent crime and becomes so frightened or distraught at what occurs that she suffers a miscarriage.
(ii)Indirect Victims USCIS believes that the U nonimmigrant classification contemplates encompassing certain indirect victims in addition to direct victims. This is because the list of qualifying criminal activity at section 101(a)(15)(U)(iii) of the INA, 8 U.S.C. 1101(a)(15)(U)(iii), includes the crimes of murder and manslaughter, the direct targets of which are deceased. The list also includes witness tampering, obstruction of justice, and perjury, which are not crimes against a person. Therefore, this rule extends the definition of victim beyond the direct victim of qualifying criminal activity in certain circumstances. *See* new 8 CFR 214.14(a)(14)(i) & (ii). The AG Guidelines also cover those persons who are not direct victims of a crime where the direct victim is deceased as a result of the qualifying crime (e.g. murder or manslaughter), incompetent or incapacitated, or under the age of 18. AG Guidelines, at 9. In these situations, the direct victim is not available or sufficiently able to help in an investigation or prosecution of the criminal activity. *Id.* The AG Guidelines list such indirect victims to be a spouse, legal guardian, parent, child, sibling, another family member, or another person designated by the court. *Id.* Under the AG Guidelines, however, only the first available person on the list is eligible to be considered a victim. *Id.* For instance, the parent of a murder victim is only considered a victim if his or her child is unmarried. The spouse, as the first person on the list, would be deemed the victim. Drawing from the AG Guidelines in conjunction with the U classification statutory provision describing qualifying family members (section 101(a)(15)(U)(ii) of the INA, 8 U.S.C. 1101(a)(15)(U)(ii)), this rule extends the victim definition to the following list of indirect victims in the case of murder, manslaughter, or incompetent or incapacitated victims: Spouses; children under 21 years of age; 5 and, if the direct victim is or was under 21 years of age, parents and unmarried siblings under 18 years of age. *See* new 8 CFR 214.14(a)(14)(i). This rule does not extend the victim definition beyond these family members since the U nonimmigrant classification does not apply to other individuals. Unlike the AG Guidelines, the rule does not restrict the victim definition only to the first available person on the list of indirect victims. USCIS has determined that such a restrictive definition of victim would not adequately serve the purpose behind the U nonimmigrant classification. Family members of murder, manslaughter, incompetent, or incapacitated victims frequently have valuable information regarding the criminal activity that would not otherwise be available to law enforcement officials because the direct victim is deceased, incapacitated, or incompetent. By extending the victim definition to include certain family members of deceased, incapacitated, or incompetent victims, the rule encourages these family members to fully participate in the investigation or prosecution. Extending immigration benefits only to the first available person on the AG Guidelines list could separate families and lead to anomalous results. For example, in the case of a mother who is murdered and leaves behind her husband and young children, extending benefits only to the husband, as the first person on the list, could leave minor children without U nonimmigrant status protection. 5 Qualifying children also must be unmarried. See INA sec. 101(b), 8 U.S.C. 1101(b). USCIS notes, however, that while family members on the list of indirect victims under this rule may apply for U nonimmigrant status in their own right as principal petitioners, there is no requirement that they do so. For example, in the scenario described above of a mother who is murdered and leaves behind a husband and minor children, the husband and minor children could each apply as principal petitioners. In the alternative, the husband could file as a principal petitioner and the children could be included as family members on his petition, as will be discussed later in this Supplementary Information. Likewise, the children potentially could be principal petitioners and their father (the husband of the deceased), could be included as a family member on one of the children's petitions. Family members who are recognized as indirect victims and, therefore, eligible to apply for U nonimmigrant status as principal petitioners must meet all of the eligibility requirements that the direct victim would have had to meet in order to be accorded U nonimmigrant status. In the case of witness tampering, obstruction of justice, or perjury, the interpretive challenge for USCIS was to determine whom the BIWPA was meant to protect, given that these criminal activities are not targeted against a person. USCIS looked to the purpose of the BIWPA—to encourage cooperation with criminal investigations and protect vulnerable victims (BIWPA sec. 1502)—and to the federal definitions of the term “victim.” As discussed above, in order to be classified as a victim under Federal law, an individual must suffer direct and proximate harm. Therefore, USCIS considered which categories of people would suffer direct and proximate harm from witness tampering, obstruction of justice, and perjury. USCIS identified one such category as individuals who are harmed when a perpetrator commits one of the three crimes in order to avoid or frustrate the efforts of law enforcement authorities. USCIS identified another such category as individuals who are harmed when the perpetrator uses the legal system to exploit or impose control over them. Accordingly, this rule provides that a victim of witness tampering, obstruction of justice, or perjury is an alien who has been directly and proximately harmed by the perpetrator of one of these three crimes, where there are reasonable grounds to conclude that the perpetrator principally committed the offense as a means:
(1)To avoid or frustrate efforts to investigate, arrest, prosecute, or otherwise bring him or her to justice for other criminal activity; or
(2)to further his or her abuse or exploitation of or undue control over the alien through manipulation of the legal system. New 8 CFR 214.14(a)(14)(ii). In developing this definition, USCIS considered whether or not the criminal activity of witness tampering, obstruction of justice, or perjury must have been committed in relation to one of the other qualifying crimes listed in the statute. However, the text of section 101(a)(15)(U)(iii) of the INA, 8 U.S.C. 1101(a)(15)(U)(iii), listing qualifying criminal activity explicitly states that the criminal activity must involve “one or more” of the 27 categories of crimes listed. USCIS reads the phrase “one or more” to mean that each of the crimes listed thereafter may qualify independently. Therefore, this rule does not require such a nexus.
(iii)Culpability of the Victim This rule excludes a person who is culpable for the qualifying criminal activity being investigated or prosecuted from being deemed a victim. *See* new 8 CFR 214.14(a)(14)(iii). Although the statutory provision at section 101(a)(15)(U)(i) of the INA, 8 U.S.C. 1101(a)(15)(U)(i), describing who qualifies as a U nonimmigrant neither explicitly covers nor explicitly excludes culpable persons, USCIS believes that this exclusion is warranted. This exclusion does not apply to an alien who committed a crime other than the one under investigation or prosecution, even if the crimes are related. For instance, an alien who agrees to be smuggled into the United States, but is then held in involuntary servitude may still be deemed to be a victim of involuntary servitude even though he or she also may be culpable in the smuggling crime and for illegally entering the United States. USCIS has concluded that, while it is reasonable to exclude culpable individuals from being defined as a victim, it is not reasonable to exclude individuals simply based on any criminal activity in which they may have at one time engaged. USCIS notes that this approach of distinguishing between those who are culpable for the qualifying crime and those who are culpable for other crimes is supported by the AG Guidelines. *See* AG Guidelines, at 10. b. Physical or Mental Abuse This rule defines physical or mental abuse to mean injury or harm to the victim's physical person, or harm to or impairment of the emotional or psychological soundness of the victim. New 8 CFR 214.14(a)(8). In considering how to define the term physical or mental abuse, USCIS examined existing regulations that use similar terms. In particular, USCIS looked to regulations promulgated following the enactment of VAWA 1994 that allow battered spouses and children of U.S. citizens and lawful permanent residents to seek immigration status. *See* 8 CFR 204.2(c), 216.5(e)(3). These regulations use the terms “battery” and “extreme cruelty” to refer to any act or threatened act of violence that results in physical or mental injury. *See* 8 CFR 204.2(c)(2)(vi); 8 CFR 216.5(e)(3)(i). Battery and extreme cruelty are terms that the regulations use interchangeably with the term “abuse.” *See* 8 CFR 204.2(c)(1)(vi); (2)(iv); 216.5(e)(3)(i); and 216.5(e)(3)(iii). The term, “physical or mental abuse,” encompasses a wide range of physical or mental harm. Section 101(a)(15)(U)(i)(I) of the INA, 8 U.S.C. 1101(a)(15)(U)(i)(I), which establishes this as a requirement, qualifies “physical or mental abuse” with the term, “substantial.” The statutory provision does not make clear, however, whether the standard of “substantial” physical or mental abuse is intended to address the severity of the injury suffered by the victim, or the severity of the abuse inflicted by the perpetrator. USCIS has concluded that it is reasonable to consider both. Rather than define what constitutes abuse that is “substantial,” however, USCIS believes that a better approach would be to make case-by-case determinations, using factors as guidelines. This rule lists a number of factors USCIS will consider when determining whether the physical or mental abuse at issue qualifies as substantial. New 8 CFR 214.14(b)(1). These factors are: The nature of the injury inflicted or suffered; the severity of the perpetrator's conduct; the severity of the harm suffered; the duration of the infliction of the harm; and the extent to which there is permanent or serious harm to the appearance, health, or physical or mental soundness of the victim. Through these factors, USCIS will be able to evaluate the kind and degree of harm suffered by the individual applicant based upon that applicant's individual experience. No single factor is a prerequisite to establish that the abuse suffered was substantial. Also, the existence of one or more of the factors does not automatically create a presumption that the abuse suffered was substantial. USCIS recognizes the possibility that some victims will have a pre-existing physical or mental injury or condition at the time of the abuse. In evaluating whether the harm is substantial, this rule requires USCIS to consider the extent to which any pre-existing conditions were aggravated. *Id.* Some abuse may involve a series of acts or occur repeatedly over a period of time. USCIS will consider the abuse in its totality to determine whether the abuse is substantial. A series of acts taken together may be considered to constitute substantial physical or mental abuse even where no single act alone rises to that level. *Id.* c. Qualifying Criminal Activity The statutory list of qualifying criminal activity in section 101(a)(15)(U)(iii) of the INA, 8 U.S.C. 1101(a)(15)(U)(iii), is not a list of specific statutory violations, but instead a list of general categories of criminal activity. It is also a non-exclusive list. Any similar activity to the activities listed may be a qualifying criminal activity. This interim rule adopts the statutory list of criminal activity and further defines what constitutes “any similar activity.” *See* new 8 CFR 214.14(a)(9). The rule provides that for a criminal activity to be deemed similar to one specified on the statutory list, the similarities must be substantial. USCIS bases this definition on the fact that the statutory list of criminal activity is not composed of specific statutory violations. Instead, the criminal activity listed is stated in broad terms. The rule's definition of “any similar activity” takes into account the wide variety of state criminal statutes in which criminal activity may be named differently than criminal activity found on the statutory list, while the nature and elements of both criminal activities are comparable. In addition, qualifying criminal activity may occur during the commission of non-qualifying criminal activity. For varying reasons, the perpetrator may not be charged or prosecuted for the qualifying criminal activity, but instead, for the non-qualifying criminal activity. For example, in the course of investigating Federal embezzlement and fraud charges, the investigators discover that the perpetrator is also abusing his wife and children, but because there are no applicable Federal domestic violence laws, he is charged only with non-qualifying Federal embezzlement and fraud crimes. 2. Possession of Information Concerning the Qualifying Criminal Activity In passing the BIWPA, Congress wanted to encourage aliens who are victims of criminal activity to report the criminal activity to law enforcement and fully participate in the investigation and prosecution of the perpetrators of such criminal activity. BIWPA sec. 1513(a)(1)(B). The second eligibility requirement for U nonimmigrant status is that the alien must possess information about the qualifying criminal activity of which he or she is a victim. INA sec. 101(a)(15)(U)(i)(II), 8 U.S.C. 1101(a)(15)(U)(i)(II). This rule adopts this statutory requirement at new 8 CFR 214.14(b)(2). Possessing information about a crime of which the alien is not a direct or indirect victim would not satisfy this requirement and, therefore, is not included in the rule. USCIS will consider an alien victim to possess information concerning qualifying criminal activity of which he or she was a victim if he or she has knowledge of the details (i.e., specific facts) concerning the criminal activity that would assist in the investigation or prosecution of the criminal activity. *See* new 8 CFR 214.14(b)(2). The findings that Congress expressed in sections 1513(a)(1) and
(2)of the BIWPA make clear that the intent behind the creation of U nonimmigrant status was to facilitate the investigation and prosecution of criminal activity of which immigrants are targets while providing protection for victims of such criminal activity. USCIS believes that, to give effect to congressional intent, the information that the alien must possess must be related to the crime of which he or she is a victim. If not, the stated purpose of the statute is thwarted. Possession of information concerning the criminal activity necessarily means that the alien must have knowledge of it. When the alien victim is under 16 years of age, the statute does not require him or her to possess information regarding the qualifying criminal activity. Rather, the parent, guardian, or next friend of the alien victim may possess that information if the alien victim does not. INA sec. 101(a)(15)(U)(i)(II), 8 U.S.C. 1101(a)(15)(U)(i)(II). This rule reiterates this exception at new 8 CFR 214.14(b)(2). This provision specifies that the age of the alien victim on the day on which an act constituting an element of the qualifying criminal activity first occurred is the applicable age to consider for purposes of establishing whether the exception is triggered. The purpose of the exception is to allow for alternative mechanisms for possessing information when a child is at an age where he or she may be too young to adequately understand and relay traumatic and sensitive information. As such, USCIS believes that the date on which the qualifying criminal activity began is the appropriate date for triggering this exception. The rule also permits a parent, guardian, or next friend to provide information when the alien victim is incapacitated or incompetent. New 8 CFR 214.14(b)(2). Permitting certain family members or guardians to act in lieu of incapacitated or incompetent victims is supported by the AG Guidelines, at 9. This rule also defines the term “next friend.” New 8 CFR 214.14(a)(7). An individual will qualify as a next friend under this rule if he or she appears in a lawsuit to act for the benefit of an alien who is under the age of 16 or who is incapacitated or incompetent. *See Whitmore* v. *Arkansas* , 495 U.S. 149, 163-4
(1990)(describing next friend as someone dedicated to the best interests of the individual who cannot appear on his or her own behalf because of inaccessibility, mental incompetence, or other disability). The next friend is not a party to the legal proceeding and is not appointed as a guardian. 3. Helping Law Enforcement in the Investigation or Prosecution of Criminal Activity The third eligibility requirement for U nonimmigrant status is that the alien victim of qualifying criminal activity (or, in the case of an alien child under the age of 16, the parent, guardian, or next friend of the alien) has been, is being, or is likely to be helpful to a government official or authority in the investigation or prosecution of the qualifying criminal activity. INA sec. 101(a)(15)(U)(i)(III), 8 U.S.C. 1101(a)(15)(U)(i)(III). This requirement is set forth in new 8 CFR 214.14(b)(3), which further provides that the alien victim cannot refuse or fail to provide reasonably requested information and assistance in order to remain eligible for U nonimmigrant status. The rule also provides for alien victims who are incompetent or incapacitated. Additionally, this rule provides that the official or authority receiving the assistance be a “certifying agency,” as defined in new 8 CFR 214.14(a)(2). a. Helpfulness USCIS interprets “helpful” to mean assisting law enforcement authorities in the investigation or prosecution of the qualifying criminal activity of which he or she is a victim. USCIS is excluding from eligibility those alien victims who, after initiating cooperation, refuse to provide continuing assistance when reasonably requested. New 8 CFR 214.14(b)(3). USCIS believes that the statute imposes an ongoing responsibility on the alien victim to provide assistance, assuming there is an ongoing need for the applicant's assistance. USCIS bases this interpretation on the plain text of the statutory provision that sets forth this requirement. *See* INA sec. 101(a)(15)(U)(i)(III), 8 U.S.C. 1101(a)(15)(U)(i)(III). The requirement was written with several verb tenses, recognizing that an alien may apply for U nonimmigrant status at different stages of the investigation or prosecution. By allowing an individual to petition for U nonimmigrant status upon a showing that he or she may be helpful at some point in the future, USCIS believes that Congress intended for individuals to be eligible for U nonimmigrant status at the very early stages of an investigation. This suggests an ongoing responsibility to cooperate with the certifying official while in U nonimmigrant status. If the alien victim only reports the crime and is unwilling to provide information concerning the criminal activity to allow an investigation to move forward, or refuses to continue to provide assistance to an investigation or prosecution, the purpose of the BIWPA is not furthered. *See* BIWPA sec. 1513(a)(2). In addition, in order to qualify for permanent resident status on the basis of the U nonimmigrant classification, the alien must not have unreasonably refused to provide assistance in a criminal investigation or prosecution. INA sec. 245(m)(1), 8 U.S.C. 1255(m)(1). This requirement further suggests an ongoing responsibility to cooperate with the certifying official while in U nonimmigrant status. An exception to the helpfulness requirement applies to alien victims who are under 16 years of age. Such alien victims can satisfy the helpfulness requirement if their parent, guardian, or next friend provides the required assistance. INA sec. 101(a)(15)(U)(i)(III), 8 U.S.C. 1101(a)(15)(U)(III). This exception is the same exception applicable to the previous requirement that the alien victim possess information regarding the criminal activity. *See* new 8 CFR 214.14(b)(2). This rule reiterates the exception with respect to the helpfulness requirement at new 8 CFR 214.14(b)(3). The provision specifies that the age of the victim on the day on which an act constituting an element of the qualifying criminal activity first occurred is the applicable age to consider for purposes of establishing whether the exception is triggered. New 8 CFR 214.14(b)(3). It also extends the exception to individuals who are incapacitated or incompetent and allows a parent, guardian, or next friend to be helpful in those instances. *Id.* b. Certifying Agency This rule requires that the assistance in the investigation or prosecution of qualifying criminal activity be provided to a “certifying agency.” As discussed later in this Supplementary Information, an alien victim must include a certification from such agency in support of his or her request for U nonimmigrant status. INA sec. 214(p)(1), 8 U.S.C. 1184(p)(1). A “certifying agency” is one of the government officials and entities identified in the statute that is investigating or prosecuting qualifying criminal activity. INA sec. 101(a)(15)(U)(i)(III), 8 U.S.C. 1101(a)(15)(U)(i)(III). The rule defines a “certifying agency” as a Federal, State, or local law enforcement agency, prosecutor, judge, or other authority, that has responsibility for the investigation or prosecution of the qualifying criminal activities designated in the BIWPA. New 8 CFR 214.14(a)(2). This includes traditional law enforcement branches within the criminal justice system. However, USCIS also recognizes that other agencies, such as child protective services, the Equal Employment Opportunity Commission, and the Department of Labor, have criminal investigative jurisdiction in their respective areas of expertise. The rule specifies these agencies. *See id.* The rule provides that the term “investigation or prosecution,” used in the statute and throughout the rule, includes the detection or investigation of a qualifying crime or criminal activity, as well as the prosecution, conviction, or sentencing of the perpetrator of such crime or criminal activity. New 8 CFR 214.14(a)(5). Referring to the AG Guidelines, USCIS is defining the term to include the detection of qualifying criminal activity because the detection of criminal activity is within the scope of a law enforcement officer's investigative duties. AG Guidelines, at 22-23. Also referring to the AG Guidelines, USCIS is defining the term to include the conviction and sentencing of the perpetrator because these extend from the prosecution. *Id.* at 26-27. Moreover, such inclusion is necessary to give effect to section 214(p)(1) of the INA, 8 U.S.C. 1184(p)(1), which permits judges to sign certifications on behalf of U nonimmigrant status applications. INA sec. 214(p)(1), 8 U.S.C. 1184(p)(1). Judges neither investigate crimes nor prosecute perpetrators. Therefore, USCIS believes that the term “investigation or prosecution” should be interpreted broadly as in the AG Guidelines. 4. Criminal Activity That Violated U.S. Law or Occurred in the United States The fourth requirement for U nonimmigrant classification is that the qualifying criminal activity violated the laws of the United States or occurred in the United States (including in Indian country and military installations) or the territories and possessions of the United States. INA 101(a)(15)(U)(i)(IV), 8 U.S.C. 1101(a)(15)(U)(i)(IV). This requirement is adopted in new 8 CFR 214.14(b)(4). The term United States is defined in section 101(a)(38) of the INA, 8 U.S.C. 1101(a)(38), to mean the continental United States, Alaska, Hawaii, Puerto Rico, Guam, and the U.S. Virgin Islands. The BIWPA does not define the term “Indian country,” but for purposes of this rule, USCIS is adopting the definition contained in 18 U.S.C. 1151. Under this rule, “Indian country” means all land within the limits of any Indian reservation under the jurisdiction of the United States, all dependent Indian communities within the borders of the United States, and all Indian allotments. New 8 CFR 214.14(a)(4). Although 18 U.S.C. 1151 is a criminal jurisdiction statute, tribal and federal courts have applied this statutory definition to both criminal and civil matters. *See California* v. *Cabazon Band of Mission Indians,* 480 U.S. 202, 208 n.5 (1996). Similarly, the term “military installation” is not defined in the BIWPA. This rule defines that term as meaning any facility, base, camp, post, encampment, station, yard, center, port, aircraft, vehicle, or vessel under the jurisdiction of the Department of Defense, or any location under military control, including any leased facility. New 8 CFR 214.14(a)(6). To develop this definition, USCIS looked to other statutory definitions of the term. *See, e.g.* , 10 U.S.C. 2687(e) (defining the term in the context of base closures and realignments); 10 U.S.C. 2801(c)(2) (relating to military construction). A review of the federal case law reveals that this is a nebulous concept with no absolute definition. *United States* v. *Buske* , 2 M.J. 465, 467 (A.C.M.R. 1975). In order to realize the purpose of the U nonimmigrant classification, to facilitate criminal investigations and prosecutions, USCIS interpreted the term broadly to encompass a wide range of military locations. New 8 CFR 212.14(a)(11) defines the term “territories and possessions of the United States” to mean American Samoa, Swains Island, Bajo Nuevo (the Petrel Islands), Baker Island, Howland Island, Jarvis Island, Johnston Atoll, Kingman Reef, Midway Atoll, Navassa Island, Northern Mariana Islands, Palmyra Atoll, Serranilla Bank, and Wake Atoll. This definition is based on current information that the Department of Interior provided to USCIS. Although Guam, Puerto Rico, and the U.S. Virgin Islands are also considered territories or possessions of the United States, USCIS has not included them in this regulatory definition because they are already incorporated into the INA definition of United States. *See* INA sec. 101(a)(38), 8 U.S.C. 1101(a)(38). Section 101(a)(15)(U)(i)(IV) of the INA, 8 U.S.C. 1101(a)(15)(U)(i)(IV), requires that the criminal activity either violated the laws of the United States or occurred in the United States. USCIS does not believe that this distinction is based on which laws are violated—U.S. laws or foreign laws—because elsewhere in the statute, qualifying criminal activity is defined as criminal activity that is “in violation of Federal, State, or local criminal law.” *See* INA sec. 101(a)(15)(U)(iii), 8 U.S.C. 1101(a)(15)(U)(iii). Instead, USCIS believes that the distinction refers to where the violation occurred, whether inside or outside the United States. Accordingly, USCIS interprets the phrase, “occurred in the United States,” to mean qualifying criminal activity that occurred in the United States that is in violation of U.S. law. USCIS interprets the phrase, “violated the laws of the United States,” as referring to criminal activity that occurred outside the United States that is in violation of U.S. law. This rule provides that criminal activity that has occurred outside of the United States, but that fits within a type of criminal activity listed in section 101(a)(15)(U)(iii) of the INA, 8 U.S.C. 1101(a)(15)(U)(iii), will constitute a qualifying criminal activity if it violates a federal statute that specifically provides for extraterritorial jurisdiction. *See* new 8 CFR 214.14(b)(4). Such criminal activity will have “violated the laws of the United States.” Congress has enacted a variety of statutes governing criminal activity occurring outside the territorial limits of the United States. These statutes establish extraterritorial and federal, criminal jurisdiction. Statutes establishing extraterritorial jurisdiction generally require some nexus between the criminal activity and U.S. interests. For example, pursuant to 18 U.S.C. 2423(c), the United States has jurisdiction to investigate and prosecute cases involving U.S. citizens or nationals who engage in illicit sexual conduct outside the United States, such as sexually abusing a minor. *See also* 18 U.S.C. 32 (destruction of an aircraft); 15 U.S.C. 1 (extraterritorial application of the Sherman Act governing antitrust laws). This rule does not require that the prosecution actually occur, since the statute only requires an alien victim to be helpful in the investigation or the prosecution of the criminal activity. *See* INA sections 101(a)(15)(U)(i)(III) & 214(p)(1), 8 U.S.C. 1101(a)15(u)(i)(III) and 1184(p)(1). Prosecution may be impossible due to a number of factors, such as an inability to extradite the defendant. B. Application Process By statute, the petition for U nonimmigrant status must be filed by the alien victim and contain a certification of helpfulness from a certifying agency. *See* INA sec. 214(p)(1), 8 U.S.C. 1184(p)(1). Based upon these statutory requirements, this rule designates the form that petitioners must use to request U nonimmigrant status and describes the evidence that must accompany the form, including the certification of helpfulness. The rule also sets forth filing requirements and procedures. This section of the Supplementary Information discusses these requirements, as well as eligibility and filing requirements for those qualifying family members of the alien victim who also are seeking U nonimmigrant status. 1. Filing the Petition To Request U Nonimmigrant Status This interim rule designates Form I-918, “Petition for U Nonimmigrant Status,” as the form an alien victim must use to request U nonimmigrant status. *See* New 8 CFR 214.14(c)(1), This provision also requires petitioners to follow the instructions to Form I-918 for proper completion and accompany Form I-918 with initial evidence and the correct fee(s). 6 Form I-918 requests information regarding the applicant's eligibility for U nonimmigrant status and admissibility to the United States. Jurisdiction over all petitions for U nonimmigrant status rests with USCIS. The instructions to Form I-918 specify where petitioners must file (by mail) their application package. At present, USCIS has centralized the adjudication process for Forms I-918 at its Vermont Service Center. This centralization will allow adjudicators to develop expertise in handling U nonimmigrant petitions and provide for uniformity in the adjudication of these petitions. 6 A fee waiver is available for the Form I-918 filing fee. Fee waivers are governed by 8 CFR 103.7(c). The rule addresses several special considerations that may affect certain petitioners seeking to file Form I-918: Filing petitions from outside the United States; the effect of a petition on interim relief; petitioners subject to grounds of inadmissibility; petitioners in removal proceedings or subject to a final order of exclusion, deportation, or removal; changing nonimmigrant classifications; and the effect of a petition on other immigration benefits. These considerations are discussed below. a. Alien Victims of Qualifying Criminal Activity Filing Form I-918 From Outside the United States This interim rule does not require petitioners to file Form I-918 from within the United States. USCIS has determined that the statutory framework for U nonimmigrant status permits alien victims of qualifying criminal activity to apply for U nonimmigrant status classification from either inside or outside the United States. For example, the statute does not require petitioners to be physically present in the United States to qualify for U nonimmigrant status. By contrast, other nonimmigrant classifications, such as the T nonimmigrant classification (INA sec. 101(a)(15)(T), 8 U.S.C. 1101(a)(15)(T)), explicitly require an alien's physical presence in the United States as a condition of eligibility. Moreover, under section 101(a)(15)(U)(i)(IV) of the INA, 8 U.S.C. 1101(a)(15)(U)(i)(IV), qualifying criminal activity may occur outside the territorial jurisdiction of the United States under certain circumstances. USCIS recognizes that for qualifying criminal activity that occurred outside the United States, the investigation may take place either outside or inside the United States. The alien victim may be needed in the United States to assist the certifying agency in its investigation or subsequent prosecution of the criminal activity. Allowing alien victims to submit petitions from outside the United States provides the certifying agency with the necessary flexibility to further the investigation or prosecution. To apply from outside the United States, petitioners must submit a complete application package for U nonimmigrant status to the USCIS location specified in the form instructions. b. Petitioners With Interim Relief From Removal This rule does not impose a deadline for submission of U nonimmigrant status petitions. However, USCIS encourages petitioners and accompanying or following to join family members who were granted interim relief to file Form I-918 within 180 days of the effective date of this rule. After the effective date of this rule, the interim relief process will no longer be in effect, and USCIS will not consider initial requests for interim relief. After the 180-day time period following the effective date of the rule, USCIS will reevaluate previous grants of deferred action, parole, and stays of removal and terminate such interim relief for those aliens who fail to file Form I-918 within the 180-day time period. However, if the alien has properly filed a Form I-918, but USCIS has not yet adjudicated that petition, interim relief will be extended until USCIS completes its adjudication of Form I-918. USCIS believes that 180 days provides an interim relief recipient a sufficient period of time within which to file and perfect a U nonimmigrant petition, taking into account the time it may take for individuals to learn of this rule and put together a complete package requesting U nonimmigrant status. c. Petitioners Who Are Inadmissible To be eligible for U nonimmigrant status, the alien requesting status must be admissible to the United States. 8 CFR 214.1(a)(3)(i); *see also* INA sec. 214(a)(1), 8 U.S.C. 1184(a)(1). Therefore, those who are inadmissible to the United States, or who become inadmissible for conduct that occurs while their petition for U nonimmigrant status is pending, will not be eligible for U nonimmigrant status unless the ground of inadmissibility is waived by USCIS. See INA sec. 212(a), 8 U.S.C. 1182(a) (grounds of inadmissibility). USCIS has general authority to waive many grounds of inadmissibility for nonimmigrants and may prescribe conditions on their temporary admission to the United States. See INA sec. 212(d)(3)(B), 8 U.S.C. 1182(d)(3)(B). In addition, the BIWPA created a waiver specific to U nonimmigrant status. Under this waiver, the Secretary of Homeland Security has the discretion to waive any ground of inadmissibility with respect to applicants for U nonimmigrant status, except the ground applicable to participants in Nazi persecutions, genocide, acts of torture, or extrajudicial killings. INA sec. 212(d)(14), 8 U.S.C. 1182(d)(14). However, the Secretary of Homeland Security first must determine that such a waiver would be in the public or national interest. *Id.* It is important to note that the determination that a waiver would be in the public or national interest and the decision to grant a waiver are made at the discretion of the Secretary. In the immigrant context, the Board of Immigration Appeals has held that, in assessing whether an applicant has met the burden that a waiver is warranted in the exercise of discretion, the adjudicator must balance adverse factors evidencing inadmissibility as a lawful permanent resident with the social and humane considerations presented to determine if the grant of the waiver appears to be in the best interests of the United States. *Matter of Mendez-Moralez* , 21 I&N Dec. 296 (BIA 1996). More recently, in the context of a case involving a waiver of a criminal ground of inadmissibility under section 209(c) of the Act, the Attorney General determined that favorable discretion should not be exercised for waivers under section 212(h) of the Act involving violent or dangerous crimes, except in extraordinary circumstances. *Matter of Jean* , 23 I&N Dec. 373 (A.G. 2002). In view of these considerations, this rule provides a general rule that DHS will only exercise favorable discretion in U nonimmigrant status cases in which a waiver for violent or dangerous crimes or the security and related grounds under section 212(a)(3) of the Act is requested, in extraordinary circumstances. Moreover, depending on the nature and severity of the underlying offense/s to be waived, the Secretary retains the discretion to determine that the mere existence of extraordinary circumstances is insufficient. Additionally, this rule provides that the Secretary will not exercise discretion under section 212(d)(3) of the Act, 8 U.S.C. 1182(d)(3), to waive the ground of inadmissibility under section 212(a)(3)(E) applicable to participants in Nazi persecutions, genocide, acts of torture, or extrajudicial killings. New 8 CFR 212.17(b). Because Congress determined not to make a waiver available for this ground of inadmissibility in the waiver provision created for U nonimmigrant applicants at section 212(d)(14) of the Act, DHS has determined that it would not be logical to allow these applicants to be eligible for a waiver of this ground of inadmissibility under section 212(d)(3) of the Act. To apply for a waiver of inadmissibility, a petitioner must file Form I-192, “Application for Advance Permission to Enter as Nonimmigrant,” with USCIS. New 8 CFR 212.17(a); new 8 CFR 214.14(c)(2)(iv). USCIS will evaluate the application to determine whether it is in the public or national interest to exercise discretion to waive the applicable ground(s) of inadmissibility. New 8 CFR 212.17(b)(1). As with inadmissibility waiver applications for other nonimmigrant classifications, there is no appeal of a decision to deny Form I-192. New 212.17(b)(2); *see also* 8 CFR 212.4(a)(1). This rule also provides that an applicant whose waiver application is denied is not prevented from re-filing a request for a waiver. New 8 CFR 212.17(b)(2). This is to allow those petitioners whose Forms I-918 and concurrently filed Forms I-192 are denied an opportunity to have a subsequently filed Form I-192 considered in the context of other immigration benefits. USCIS has determined that implicit in its discretionary authority to grant a waiver is the authority to determine the conditions under which a waiver is granted, including revocation of previously granted waiver. Therefore, this interim rule establishes USCIS' authority to revoke its approval of a waiver of inadmissibility that was previously granted. The decision to revoke a waiver is not appealable. New 8 CFR 212.17(c). d. Petitioners Who Are in Removal, Deportation, or Exclusion Proceedings or Who Are Subject to a Final Order of Removal, Deportation, or Exclusion Aliens who are in removal proceedings under section 240 of the INA, 8 U.S.C. 1229a, or in deportation or exclusion proceedings under former sections 242 and 236 of the INA, 8 U.S.C. 1252, 1226 (as in effect before April 1, 1997), or who are the subject of a final order of removal, deportation, or exclusion, may be eligible for U nonimmigrant status. 7 Because jurisdiction over U nonimmigrant petitions rests solely with USCIS, aliens who are in removal proceedings or who are subject to a final removal order nevertheless must file their petition for U nonimmigrant status directly with USCIS. Filing a petition for U nonimmigrant status will not affect the proceedings or the order. However, in instances in which the U nonimmigrant status petitioner or a derivative family member of the petitioner listed on the Form I-918 is in removal, deportation, or exclusion proceedings before the Immigration Court or has a matter pending before the Board of Immigration Appeals (Board), 8 this rule provides that the alien may seek the agreement of DHS' Bureau of Immigration and Customs Enforcement
(ICE)9 to file a joint motion to terminate the proceedings without prejudice while a petition for U nonimmigrant status is being adjudicated by USCIS. 10 New 8 CFR 214.14(c)(1)(i) and (f)(2)(i). The joint motion to terminate must be filed with the Immigration Court or the Board, whichever has jurisdiction. *Id.* The agreement to pursue termination of the pending proceedings lies within the sole prosecutorial discretion of ICE. DHS is including a specific provision on motions to terminate in this rule to identify a mechanism that conserves prosecutorial resources with respect to a class of aliens who are providing assistance in investigating and prosecuting criminal activity. 7 An order of deportation is an order issued prior to April 1, 1997, in deportation proceedings, to an alien physically present in the United States requiring the alien to leave the United States. *See* INA sec. 242B, 8 U.S.C. 1252b
(1996)*repealed by* IIRIRA, Pub. L. 104-208, div. C., sec. 308(b)(6), 110 Stat. 3009, 3615 (effective April 1, 1997). An order of exclusion is an order issued prior to April 1, 1997, in exclusion proceedings, that refuses the admission to the United States of an alien who is physically outside the United States (or who is treated as being so). *See generally* INA sec. 236, 8 U.S.C. 1226
(1996)(amended by IIRIRA sec. 303(a), 110 Stat. at 3585). Since April 1, 1997, there has been one unified removal process for persons formerly subject to deportation and exclusion proceedings; this process may result in the issuance of a removal order by either DHS or an immigration judge. INA sec. 240(a)(3), 8 U.S.C. 1229a(a)(3) (added by IIRIRA sections 304(a)(3) & 309(d)(2), 110 Stat. at 3587-3589, 3627). During proceedings, DHS or an immigration judge makes a determination regarding whether an alien is removable from the United States. INA sec. 240(c)(1), 8 U.S.C. 1229a(c)(1). If such a determination is made, a removal order is issued ordering the alien to leave the United States. INA sec. 240(c)(5), 8 U.S.C. 1229a(c)(5). The alien must leave the United States on his or her own, or will be returned to his or her country of origin (or in some cases to a third country that agrees to accept that person) by the United States. See INA sections 240B & 241, 8 U.S.C. 1229c & 1231. 8 The Immigration Court and Board of Immigration Appeals are within the Department of Justice's Executive Office for Immigration Review. *See* 8 CFR 1003.0(a). 9 ICE counsel are authorized to represent DHS in Immigration Court and before the Board. *See* 6 U.S.C. 252(c); DHS Delegation No. 7030.2, para. 2(C). 10 While this rule specifically addresses joint motions to terminate, it does not preclude the parties from requesting a continuance of the proceeding. This rule further provides that if proceedings are terminated, and USCIS subsequently denies the petition for U nonimmigrant status, DHS may file a new Notice to Appear 11 to place the individual into proceedings again. New 8 CFR 214.14(c)(5)(ii) and (f)(6)(iii). 11 Removal proceedings are initiated when an alien is provided notice of proceedings through the service of a Notice to Appear. The contents of the Notice to Appear are prescribed in section 239(a)(1) of the Act. With respect to petitioners who are the subject of an administrative final order, this rule provides that they are not precluded from filing a petition for U nonimmigrant status directly with USCIS. New 8 CFR 214.14(c)(1)(ii) and (f)(2)(ii). However, the filing of a petition for U nonimmigrant status has no effect on ICE's authority to execute a final order. Therefore, those aliens subject to a final order of removal, deportation, or exclusion who are physically present in the United States should apply separately for a discretionary stay of removal if they wish to remain in the United States while their petition is pending with USCIS. To do so, such aliens must file Form I-246, “Application for Stay of Removal,” as provided in 8 CFR 241.6(a) and 8 CFR 1241.6(a). For those petitioners who are subject to a final order of removal and are detained in ICE's custody while USCIS adjudicates their petition, rules of detention still apply. Under the post-order detention rules, an alien who has been subject to post-order detention for more than six months (dating from the beginning of the removal period as described in INA § 241(a)(1)) may request release from detention. See 8 CFR 241.13. If, after six months of post-order detention, the alien can provide “good reason to believe there is no significant likelihood of removal * * * in the reasonably foreseeable future,” the alien, with certain exceptions, will be released on an order of supervision. 8 CFR 241.13(a); see *Zadvydas* v. *Davis* , 533 U.S. 678, 701 (2001); Clark v. Martinez, 543 U.S. 371, 386 (2005). However, under this rule, the time during which a stay of removal is in effect will extend the period of detention reasonably necessary to bring about the petitioner's eventual removal. New 8 CFR 214.14(c)(1)(ii) and (f)(2)(ii). As the petitioner has, of his or her own choosing, requested that his or her removal be stayed, the reasonably necessary period for removal justifiably is extended. ICE will have a full and fair period to effect removal if USCIS denies the petition. See 8 CFR 241.4. If USCIS grants the petition for U nonimmigrant status, an order of exclusion, deportation, or removal issued by the Secretary will be canceled by operation of law as of the date of the grant. New 8 CFR 214.14(c)(5)(i) & (f)(6). However, if USCIS subsequently revokes approval of the petition, DHS may place the petitioner in removal proceedings. In cases where an order of exclusion, deportation, or removal was issued by an immigration judge or the Board, the alien may seek cancellation of such order by filing, with the immigration judge or the Board, a motion to reopen and terminate removal proceedings. ICE counsel may agree, as a matter of discretion, to join such a motion to overcome any applicable time and numerical limitations of 8 CFR 1003.2 and 1003.23. *Id.* e. Aliens Seeking Change of Nonimmigrant Classification Aliens who currently are in a nonimmigrant status may seek to change their classification to the U nonimmigrant classification. Section 248 of the INA, 8 U.S.C. 1258, and implementing regulations at 8 CFR 248 govern change of nonimmigrant classification. These provisions permit nonimmigrants to change status to another nonimmigrant classification, unless they fall within certain nonimmigrant classifications. INA sec. 248(a)(1)-(4), 8 U.S.C. 1258(a)(1)-(4); 8 CFR 248.2. For example, aliens classified under sections 101(a)(15)(C), (D), (K), or
(S)of the INA, 8 U.S.C. 1101(a)(15)(C), (D), (K), or (S), as well as certain aliens classified under section 101(a)(15)(J) of the INA, 8 U.S.C. 1101(a)(15)(J), may not change nonimmigrant status. VAWA 2005 amended section 248 of the INA, 8 U.S.C. 1258, so that even aliens within the excepted classifications may seek a change of nonimmigrant status if the status sought is U nonimmigrant status. INA sec. 248(b), 8 U.S.C. 1258(b). This rule adopts this statutory amendment in revised 8 CFR 248.2(b) and makes structural modifications to 8 CFR 248.2 to accommodate the revisions. The rule also clarifies that the procedures for applying for U nonimmigrant status, even when changing nonimmigrant status, are contained in new 8 CFR 214. Revised 8 CFR 248.1(a). f. Aliens Seeking Other Immigration Benefits Aliens seeking U nonimmigrant status are free to seek any other immigration benefit or status for which they are eligible. INA sec. 214(p)(5), 8 U.S.C. 1184(p)(5). Therefore, nothing in this rule limits a qualified petitioner from applying for U nonimmigrant status as well as other immigration benefits, including immigrant status. However, USCIS will only grant one nonimmigrant or immigrant status at a time. Where multiple applications or petitions are filed and pending at the same time, USCIS will grant the status for the application or petition that is approved first. USCIS will deny any remaining petitions or applications for status. 2. Initial Evidence This rule requires petitioners filing Form I-918 to accompany the petition with supporting documentation, or “initial evidence,” in order for USCIS to consider the request for U nonimmigrant status complete. New 8 CFR 214.14(c)(1). If all required initial evidence is not submitted with the petition or does not demonstrate eligibility, USCIS, in its discretion, may deny the application for lack of initial evidence or for ineligibility, or request that the missing or insufficient initial evidence be submitted within a specified period of time as determined by USCIS. 8 CFR 103.2(b)(8)(ii). This rule provides the following list of required initial evidence: • Form I-918, Supplement B, “U Nonimmigrant Status Certification,” properly and timely executed; • Any additional evidence the petitioner wants USCIS to consider to establish further that: —The petitioner is a victim of qualifying activity; —The petitioner has suffered substantial physical or mental abuse as a result of having been a victim of qualifying criminal activity; —The petitioner possesses information concerning the qualifying criminal activity of which he or she was a victim; —The petitioner has been, is being, or is likely to be helpful to a certifying agency; —The criminal activity is qualifying and occurred in the United States, including in Indian country and military installations, or the territories and possessions of the United States, or violated a U.S. federal law that provides for extraterritorial jurisdiction to prosecute the offense in a U.S. Federal court; • A statement by the petitioner describing the facts of the victimization; and • If the petitioner is inadmissible, Form I-192, “Application for Advance Permission to Enter as Non-Immigrant.” New 8 CFR 214.14(c)(2). a. U Nonimmigrant Status Certification This rule designates Form I-918, Supplement B, “U Nonimmigrant Status Certification,” as the form that petitioners must obtain from a certifying official of a certifying agency. New 8 CFR 214.14(c)(2)(i). Form I-918, Supplement B must be prepared by the certifying agency conducting an investigation or prosecution of the qualifying criminal activity in accordance with the instructions to the form, and must have been signed by the certifying official within the six months immediately preceding the submission of Form I-918. *Id.* USCIS is setting a six-month requirement to seek a balance between encouraging the filing of petitions and preventing the submission of stale certifications. USCIS believes that this requirement provides petitioners enough time to prepare the necessary paperwork for the petition package, while also precluding the situation where petitioners delay filing the package until some time after the certification is signed, and they cease to be helpful to the certifying agency. If a petitioner requested and received interim relief prior to the effective date of this rule, USCIS will consider the evidence submitted to meet the certification requirements for interim relief purposes in lieu of Form I-918, Supplement B. New 8 CFR 214.14(c)(1). This rule defines “certifying official” as the head of the certifying agency or any person(s) in a supervisory role who has been specifically designated by the head of the certifying agency to issue U nonimmigrant status certifications on behalf of that agency, or a Federal, State, or local judge. New 8 CFR 214.14(a)(3). USCIS believes that this definition is reasonable and necessary to ensure the reliability of certifications. It also should encourage certifying agencies to develop internal policies and procedures so that certifications are properly vetted. Under this rule, the certifying official must affirm the following in the certification:
(1)That the person signing the certificate is the head of the certifying agency or person(s) in a supervisory role who has been specifically designated with the authority to issue U nonimmigrant status certifications on behalf of that agency, or a Federal, State, or local judge;
(2)that the agency is a Federal, State, or local law enforcement agency, prosecutor, judge, or other authority that has responsibility for the detection, investigation, prosecution, conviction, or sentencing of qualifying criminal activity;
(3)that the petitioner has been a victim of qualifying criminal activity that the certifying official's agency is investigating or prosecuting;
(4)that the petitioner possesses information concerning the qualifying criminal activity of which he or she has been a victim;
(5)that the petitioner has been, is being, or is likely to be helpful to an investigation or prosecution of that qualifying criminal activity; and
(6)that the qualifying criminal activity violated U.S. law, or occurred in the United States, its territories and possessions, Indian country, or at military installations abroad. New 8 CFR 214.14(c)(2)(i). The certification also should provide relevant, specific details about the nature of the crime being investigated or prosecuted and describe, in detail, the petitioner's helpfulness to the case. USCIS developed the requirements for Form I-918, Supplement B based upon the eligibility requirements petitioners must meet and the purposes for which the certification will be used. USCIS determined that since the certifying agency is the primary point of contact between the petitioner and the criminal justice system, the certifying agency is in the best position to verify certain factual information. In addition, USCIS does not believe that petitioners are in the best position to know the specific violation of U.S. law the certifying agency is investigating or prosecuting, or what specific statute provides the certifying agency with the extraterritorial jurisdiction to investigate or prosecute criminal activity that occurred outside the United States. Therefore, USCIS determined that information regarding the eligibility requirements should be addressed by the certifying agency on Form I-918, Supplement B. USCIS will use Form I-918, Supplement B in the course of adjudicating whether the eligibility requirements have been met. b. Additional Evidence To Satisfy the Eligibility Requirements While USCIS will give a properly executed certification on Form I-918, Supplement B, significant weight, USCIS will not consider such certification to be conclusory evidence that the petitioner has met the eligibility requirements. USCIS believes that it is in the best position to determine whether a petitioner meets the eligibility requirements as established and defined in this rule. In addition to Form I-918, Supplement B, this interim rule permits the petitioner to provide any additional evidence that is relevant and credible to help demonstrate that the petitioner meets each of the eligibility requirements. New 8 CFR 214.14(c)(2)(ii) and (iii). For petitioners with interim relief, USCIS will consider evidence previously submitted with the request for interim relief as part of the petition package. Petitioners with interim relief may file additional evidence with Form I-918 to supplement this previously submitted evidence. New 8 CFR 214.14(c)(1). Evidence to further establish that the petitioner is a victim of qualifying criminal activity may include: trial transcripts, court documents, news articles, police reports, orders of protection, and affidavits of other witnesses, such as medical personnel. Evidence to further establish the nature of the abuse suffered may include such documentation as reports and affidavits from police, judges, other court officials, medical personnel, school officials, clergy, social workers, and other social service agency personnel. Petitioners who have obtained an order of protection against the perpetrator or taken other legal steps to protect themselves against the perpetrator should submit copies of the relating legal documents. A combination of documents such as a photograph of the visibly injured applicant supported by affidavits of individuals who have personal knowledge of the facts regarding the criminal activity may be relevant as well. Evidence to further establish that the petitioner possesses information about the qualifying criminal activity may include documents establishing that he or she has knowledge of the details of the criminal activity. Examples of relevant evidence include: reports and affidavits from police, judges, and other court officials. In cases where the petitioner is a child under the age of 16, or is incapacitated or incompetent, this requirement can be satisfied by the parent, guardian, or next friend submitting the necessary evidence on behalf of the petitioner. Such person must provide evidence of his or her qualifying relationship to the petitioner and evidence establishing the age, incapacity, or incompetence of the petitioner. Examples of such evidence include: birth certificates, court documents demonstrating recognition of an individual as the petitioner's next friend, medical records, or reports of licensed medical professionals demonstrating the incapacity or incompetence of the applicant. Evidence to further establish that the petitioner has provided the necessary assistance in the investigation or prosecution of qualifying criminal activity may include such documentation as: Trial transcripts, court documents, police reports, news articles, copies of reimbursement forms for travel to and from court, and affidavits of other witnesses or officials. If USCIS has reason to believe that there is a question about the petitioner's helpfulness to, or continuing cooperation with, the investigation or prosecution, USCIS may contact the certifying official for further explanation. In cases where the petitioner is a child under the age of 16 or is incapacitated or incompetent, this requirement can be satisfied by the parent, guardian, or next friend submitting the necessary evidence on behalf of the petitioner. Such person must provide evidence of their qualifying relationship to the petitioner and evidence that the petitioner is a child under the age of 16, incapacitated, or incompetent. Evidence that was submitted to satisfy the possession of information requirement will satisfy this requirement and need not be submitted twice. Examples of evidence to further establish that the criminal activity is qualifying and violated U.S. law or occurred in the United States include: A copy of the statutory provision(s) showing the elements of the offense or factual information about the crime demonstrating that it is similar to the list of qualifying criminal activity contained in section 101(a)(15)(U)(iii) of the INA, 8 U.S.C. 1101(a)(15)(U)(iii). If the criminal activity occurred outside the United States, the additional evidence submitted may include a copy of the statutory provision(s) providing for the extraterritorial jurisdiction and documentation showing that the criminal activity violated federal law and is prosecutable in a federal court. c. Statement by the Petitioner In support of Form I-918, this rule requires the petitioner to submit a separate statement describing the facts of his or her victimization. 8 CFR 214.14(c)(2)(iii). USCIS is requiring that the petitioner submit a statement because USCIS believes that it is important to learn about the facts of the victimization from the petitioner in his or her own words. This statement should include the following information: The nature of the criminal activity, when the criminal activity occurred, who was responsible, the events surrounding the criminal activity, how the criminal activity came to be investigated or prosecuted, and what substantial physical and/or mental abuse was suffered as a result of having been the victim of the criminal activity. The statement also may include information supporting any of the other eligibility requirements. When the petitioner is under the age of 16, incapacitated, or incompetent, a parent, guardian, or next friend must submit a statement in lieu of the petitioner that contains as much information surrounding the criminal activity and physical and/or mental abuse as possible. d. Petitioners Who Are Inadmissible As stated earlier in this Supplementary Information, this rule requires petitioners seeking a waiver of inadmissibility to file Form I-192, “Application for Advance Permission to Enter as Nonimmigrant.” New 8 CFR 212.17(a). USCIS has listed the Form I-192 in this rule as initial evidence which must be filed concurrently with Form I-918, along with a separate filing fee. New 8 CFR 214.14(c)(2)(iv). Form I-192 is an established form to waive grounds of inadmissibility for aliens seeking immigration benefits. *See* , *e.g.* , 8 CFR 212.4 (general authority for waivers in nonimmigrant cases); 8 CFR 212.16 (providing for use of Form I-192 in T nonimmigrant status cases). 3. Derivative Family Members Section 101(a)(15)(U)(ii) of the INA, 8 U.S.C. 1101(a)(15)(U)(ii), permits certain family members accompanying or following to join the alien victim to obtain U nonimmigrant status, regardless of whether or not they are in the United States or overseas. USCIS refers to such family members as derivatives, and the alien victim as the principal. Which family members are considered “qualifying” depends on the age of the principal. If the principal is under 21 years of age, qualifying family members include the principal's spouse, children, unmarried siblings under 18 years of age (on the filing date of the principal's petition), and parents. INA sec. 101(a)(15)(U)(ii)(I), 8 U.S.C. 1101(a)(15)(U)(ii)(I). If the principal is 21 years of age or older, qualifying family members include the spouse and children of the principal. INA sec. 101(a)(15)(U)(ii)(II), 8 U.S.C. 1101(a)(15)(U)(ii)(II). This rule provides the eligibility requirements and petition procedures for qualifying family members seeking derivative status. *See* new 8 CFR 214.14(f). a. Eligibility New 8 CFR 214.14(f)(1) sets forth two eligibility requirements for derivative U nonimmigrant status. First, the alien must be a qualifying family member. New 8 CFR 214.14(f)(1)(i). Second, the alien must be admissible to the United States. New 8 CFR 214.14(f)(1)(ii); *see also* INA sec. 214(a)(1), 8 U.S.C. 1184(a)(1); 8 CFR 214.1(a)(3)(i). Generally, in order to be considered a qualifying family member, the relationship between the principal petitioner and the family member must exist at the time Form I-918 was filed. New 8 CFR 214.14(f)(4). The relationship must continue to exist at the time the petition for derivative status is adjudicated, and at the time of the qualifying family member's subsequent admission to the United States. *Id.* Otherwise, the family member would not meet section 101(a)(15)(U)(ii) of the INA, 8 U.S.C. 1101(a)(15)(U)(ii), describing who qualifies as a family member. Note that parents are only considered qualifying family members if the principal is under 21 years of age and a “child.” New 8 CFR 214.14(f)(1). Although the statutory language at section 101(a)(15)(U)(ii), 8 U.S.C. 1101(a)(15)(U)(ii), naming parents as qualifying family members does not specify that the principal must be a child under the age of 21 for the parents to qualify, USCIS believes that this qualification is required by section 101(b)(2) of the INA, 8 U.S.C. 1101(b)(2). This provision defines the term, “child,” as an unmarried person under 21 years of age. INA sections 101(b)(1), 8 U.S.C. 1101(b)(1). A special rule applies to unmarried siblings under age 18 of petitioners who are under 21 years of age. For such siblings, the statute provides that the siblings' age on the date that Form I-918 is filed is controlling. INA sec. 101(a)(15)(U)(ii)(I), 8 U.S.C. 1101(a)(15)(U)(ii)(I). Therefore, in new 8 CFR 214.14(f)(4)(ii), if the principal petitioner was under 21 years of age, and requested U nonimmigrant status for an unmarried sibling under the age of 18 at the time Form I-918 was filed, USCIS will continue to consider such sibling as a qualifying family member for purposes of U nonimmigrant status at the time of adjudication even if circumstances change. This rule also provides that children born to the principal petitioner after Form I-918 has been filed will be eligible for derivative U nonimmigrant status. New 8 CFR 214.14(f)(4)(i). This rule excludes certain qualifying family members from eligibility. Section 204(a)(1)(L) of the INA, 8 U.S.C. 1154(a)(1)(L), prohibits an alien victim from petitioning for derivative U nonimmigrant status on behalf of a qualifying family member who committed battery or extreme cruelty or trafficking against the alien victim which established his or her eligibility for U nonimmigrant status. The rule incorporates this prohibition at new 8 CFR 214.14(f)(1). USCIS has interpreted the prohibition as applying to qualifying family members who committed qualifying criminal activity in a family violence or trafficking context. In making this determination, USCIS considered the plain text of section 204(a)(1)(L) of the INA, 8 U.S.C. 1154(a)(1)(L), and found it to be unclear regarding its intended application. In addition to trafficking, the statute lists battery and extreme cruelty as disqualifying activity even though those terms are not listed as qualifying criminal activity in section 101(a)(15)(U)(iii) of the INA, 8 U.S.C. 1101(a)(15)(U)(iii), and are not included in the standard of harm necessary to establish eligibility for U nonimmigrant status. However, when the terms battery or extreme cruelty are used in other contexts in the INA, they are used to refer to harm occurring as a result of domestic violence or child abuse. *See* INA sections 204(a)(1)(A) & (B), 216(c)(4)(C), 240A(b)(2), 8 U.S.C. 1154(a)(1)(A) & (B), 1186(c)(4)(C), 1229b. USCIS believes it is reasonable to conclude that by using these terms, Congress intended to prohibit approval of petitions for U nonimmigrant status where the petition is based on qualifying criminal activity for which the qualifying family member is responsible that occurred in a family violence or trafficking context. b. Filing Procedures This rule requires that a principal petitioner for U nonimmigrant status or a principal alien who has been granted U nonimmigrant status must petition for derivative status on behalf of qualifying family members by submitting a Form I-918, Supplement A, “Petition for Qualifying Family Member of U-1 Recipient,” for each qualifying family member. New 8 CFR 214.14(f)(2). Principal petitioners can file Form I-918, Supplement A either at the same time or after filing his or her Form I-918. *Id* . Principal aliens who have already received U nonimmigrant status may file Form I-918, Supplement A at any time while maintaining U nonimmigrant status. *Id* . This provides principals with maximum flexibility to request derivative status for qualifying family members. This rule further requires that Form I-918, Supplement A must be accompanied by supporting evidence (“initial evidence”) and the fees required by the instructions to the form. *Id* . If the principal petitioner files Form I-918, Supplement A while his or her Form I-918 is pending adjudication with USCIS, the principal petitioner must accompany Form I-918, Supplement A with a copy of his or her Form I-918. *Id* . If the principal already has been granted U nonimmigrant status, then he or she must accompany Form I-918, Supplement A with a copy of the Form I-94 he or she received when the Form I-918 was approved. *Id* . This will be considered evidence of the principal's U nonimmigrant status. Requiring evidence of the principal's pending petition or status will enable USCIS to match up the derivative petition with the principal's petition. New 8 CFR 214.14(f)(3) sets forth the initial evidence that must accompany each Form I-918, Supplement A:
(1)Evidence of the family member's qualifying relationship with the principal; and
(2)if the alien is inadmissible under section 212(a) of the INA, 8 U.S.C. 1182(a), Form I-192, with fee. Such initial evidence corresponds to the two eligibility requirements for derivative U nonimmigrant status. 4. Designations This rule amends 8 CFR 214.1(a)(1) to codify the derivative subclassifications established by section 101(a)(15)(U) of the INA, 8 U.S.C. 1101(a)(15)(U). *See* new 8 CFR 214.1(a)(1)(ix). In addition, the rule provides for the following designations for qualifying family members of the principal applicant (U-1): Spouse (U-2), child (U-3), the child's parents (U-4), and siblings (U-5). New 8 CFR 214.14(f)(1). This rule likewise adds these designations to current 8 CFR 214.1(a)(2), to add to the list of designations assigned to all other nonimmigrant classifications. These designations are a matter of administrative convenience, providing a shorthand notation for identifying the principal petitioner and each derivative based upon the relationship to the principal. C. Adjudication and Post-Adjudication The statutory provisions establishing U nonimmigrant status contain a number of parameters guiding the adjudication of U nonimmigrant petitions. Specifically, in determining whether to grant U nonimmigrant status, the statute requires that the adjudicator consider any credible evidence relevant to the petition. *See* INA sec. 214(p)(4), 8 U.S.C. 1184(p)(4). In addition, the statute protects information relating to applicants for U nonimmigrant status from disclosure. 8 U.S.C. 1367(a)(2). Moreover, the statute precludes adjudicators from making adverse determinations on inadmissibility or deportability with respect to petitions for U nonimmigrant status based on information provided by the perpetrator of abuse and criminal activity. 8 U.S.C. 1367(a)(1)(E). The number of grants of U nonimmigrant status that may be made in a fiscal year is limited by an annual cap of 10,000. INA sec. 214(p)(2), 8 U.S.C. 1184(p)(2). In this section of the Supplementary Information , these parameters are discussed, as well as the steps that follow a decision to grant or deny a petition for U nonimmigrant status. 1. Credible Evidence This rule adopts the statutory requirement that any credible evidence relevant to the petition must be considered in the adjudication of petitions for U nonimmigrant status. New 8 CFR 214.14(c)(4) & (f)(5). As in the case of all other immigration benefits, the burden of establishing eligibility for U nonimmigrant status rests with the petitioner. *Id* . USCIS will consider all evidence de novo and will not be bound by any of its prior determinations made during the course of adjudicating an application for interim relief on any essential element of U nonimmigrant status. *Id* . A grant of interim relief means only that the alien presented *prima facie* evidence that he or she was eligible for U nonimmigrant status and does not constitute a binding determination that any given eligibility requirement had been proven. In adjudicating Form I-918, USCIS will review all evidence submitted in conjunction with the interim relief application along with any additional evidence submitted by the petitioner in conjunction with his or her Form I-918, including the certification, Form I-918, Supplement B. This rule also provides that USCIS may review documentation submitted by the alien in conjunction with any other applications he or she has made for immigration benefits in the past. *Id* . This will enable USCIS to review the petition for U nonimmigrant status in the context of the petitioner's past immigration history and verify that statements made in his or her petition are consistent with information he or she provided to USCIS in the past. In addition, this rule provides that USCIS may investigate any aspect of the petition. *Id* . This means that if, during its adjudication of Form I-918, USCIS has reason to believe that there is a question about the petitioner's helpfulness to, or continuing cooperation with, the investigation or prosecution, or any other aspect of the petition, USCIS may contact the certifying official for further explanation. USCIS then will be able to verify the veracity of the contents of the petition and safeguard the integrity of the U nonimmigrant status program. 2. Prohibitions on Disclosure of Information Information concerning U nonimmigrant petitioners is protected against disclosure in two ways. *See* 8 U.S.C. 1367. First, adverse determinations of admissibility or deportability cannot be made based on information obtained solely from the perpetrator of substantial physical or mental abuse and the criminal activity. 8 U.S.C. 1367(a)(1)(E). Second, the disclosure of information relating to the beneficiary of a pending or approved petition for U nonimmigrant status is prohibited except in certain circumstances. 8 U.S.C. 1367(a)(2). The statute allows information to be released to a sworn officer or employee of DHS, the Department of Justice, the Department of State, or a bureau or agency of either of those Departments, for legitimate Department, bureau, or agency purposes. *Id* . There are eight specific exemptions from the general nondisclosure rule:
(1)At the discretion of the Secretary of Homeland Security or Attorney General, officials may disclose information in the same manner and circumstances as census information may be disclosed by the Secretary of Commerce under 13 U.S.C. 8.
(2)At the discretion of the Secretary of Homeland Security or Attorney General, officials may provide for the disclosure of information to law enforcement officials to be used solely for a legitimate law enforcement purpose.
(3)In connection with judicial review of a determination, information may be disclosed in a manner that protects the confidentiality of such information.
(4)Information may be disclosed if all the crime victims in the case are adults, and they have waived the general restrictions on disclosure of information provided by 8 U.S.C. 1367(a)(2).
(5)Information may be disclosed to Federal, State, and local public and private agencies providing benefits, to be used solely to make determinations of eligibility for benefits pursuant to 8 U.S.C. 1641(c).
(6)Information may be disclosed after a petition for U nonimmigrant status has been finally denied.
(7)Information may be disclosed on closed cases to the chairmen and ranking members of the Committee on the Judiciary of the Senate, or the Committee on the Judiciary of the House of Representatives, for the exercise of congressional oversight authority, provided the disclosure is made in a manner that protects the confidentiality of the information and omits personally identifying information (including locational information about individuals).
(8)With prior written consent from the principal petitioner or derivative family member, information may be disclosed to nonprofit, nongovernmental victims' service providers for the sole purpose of assisting the victim in obtaining victim services from programs with expertise working with immigrant victims. 8 U.S.C. 1367(b). Appropriate disciplinary action must be taken and a monetary penalty of up to $5,000 may be imposed on anyone who willfully uses, publishes, or permits information to be disclosed in violation of the nondisclosure provisions. 8 U.S.C. 1367(c). This rule incorporates the prohibitions and restrictions on information relating to U nonimmigrant petitions into new 8 CFR 214.14(e). Within the bounds of the statutory prohibitions and restrictions against disclosure of information relating to a U nonimmigrant petitioner, USCIS may provide information taken from the petition about any Federal, State or local crimes to investigative agencies that have a reason to know based on a legitimate law enforcement purpose. Possible agencies or bureaus to which information may be disclosed include: The Federal Bureau of Investigation (FBI); the U.S. Attorney's Office or the Civil Rights or Criminal Divisions of the Department of Justice; or U.S. Immigration and Customs Enforcement (ICE). As part of the adjudication process, USCIS also may contact the certifying agency for the purpose of assessing whether the petitioner is, has been, or is likely to be helpful to the investigation or prosecution of the qualifying criminal activity. Because the certifying agency has submitted a certification on behalf of the petitioner and, therefore, has already been informed about the fact of the petition as well as the facts upon which the petition is based, USCIS has determined that contacting the certifying agency would not violate the statutory prohibitions and restrictions against disclosure. USCIS recognizes the sensitive nature of application information and takes seriously its obligation to protect confidentiality. USCIS will make any disclosure to an investigative agency in a manner that provides the maximum confidentiality under the circumstances. In addition to disclosures to investigative agencies, DHS may have an obligation to provide portions of petitions for U nonimmigrant status to federal prosecutors for disclosure to defendants in pending criminal proceedings. This obligation stems from constitutional requirements that pertain to the government's duty to disclose information, including exculpatory evidence or impeachment material, to defendants. See U.S. Const. amend. V & VI; Brady v. Maryland, 373 U.S. 83, 87 (1963); Giglio v. United States, 405 U.S. 150, 154 (1972). Accordingly, this rule incorporates this requirement at new 8 CFR 214.14(e)(1)(ix). 3. Annual Numerical Limitation on Grants of U Nonimmigrant Status Before USCIS may grant U nonimmigrant status, it must consider the statutory cap on the number of aliens who may receive a grant of status each fiscal year. *See* INA sec. 214(p)(2), 8 U.S.C.1184(p)(2). No more than 10,000 principal aliens may be granted U nonimmigrant status in a given fiscal year (October 1 through September 30). INA sec. 214(p)(2)(A), 8 U.S.C. 1184(p)(2)(A). This numerical limitation does not apply to spouses, children, parents, and unmarried siblings who are accompanying or following to join the principal alien victim. INA sec. 214(p)(2)(B), 8 U.S.C. 1184(p)(2)(B). USCIS anticipates that within the first few fiscal years after publication of this regulation, it will receive petitions for U nonimmigrant status from more than 10,000 principal aliens. USCIS is cognizant of the fact that law enforcement agencies and prosecutors need a stable mechanism through which to regularize the status of victims and witnesses, but is equally cognizant of the fact that Congress saw fit to limit the number of aliens who may be granted U nonimmigrant status in any given fiscal year. USCIS has determined that to balance the statutorily imposed numerical cap against the dual goals of enhancing law enforcement's ability to investigate and prosecute criminal activity and providing protection to alien victims of crime, it will create a waiting list should the cap be reached in a given fiscal year before all petitions are adjudicated. USCIS's goal is to respect the intent of the numerical limitation imposed by Congress while still allowing the legislation to achieve maximum efficacy. USCIS believes that this rule's waiting list methodology will provide a stable mechanism through which victims cooperating with law enforcement agencies can regularize their immigration status. Under this rule, once the numerical limit has been reached in a particular fiscal year, all pending and subsequently submitted petitions will continue to be reviewed in the normal process to determine eligibility. *See* new 8 CFR 214.14(d)(2). USCIS will deny petitions that are not approvable. Eligible petitioners who are not granted U-1 nonimmigrant status due solely to the numerical limits will be notified by USCIS that they have been placed on a waiting list. *Id* . Each fiscal year, as new numbers for U-1 nonimmigrant status become available, USCIS will grant U nonimmigrant status to petitioners on the waiting list. *Id* . Petitioners on the waiting list will be given priority based on the date the petition was properly filed. *Id* . Petitioners on the waiting list must continue to meet the eligibility requirements for U nonimmigrant status and be admissible at the time status is granted. *Id* . After USCIS has granted U nonimmigrant status to petitioners on the waiting list, USCIS will continue to grant petitions, up to the annual limit, to new petitioners in the order in which each petition was properly filed. *Id* . This rule also provides that, USCIS will give petitioners on the waiting list deferred action or parole until the start of the next fiscal year. *Id* . Those petitioners will be eligible to apply for employment authorization. *Id* . The rule further provides that petitioners on the waiting list will not accrue unlawful presence under section 212(a)(9)(B) of the INA, 8 U.S.C. 1182(a)(9)(B). New 8 CFR 214.14(d)(3). However, at its discretion, USCIS may remove a petitioner from the waiting list and terminate deferred action or parole. *Id* . For example, USCIS may terminate deferred action or parole if the petitioner is convicted of a crime that renders him or her removable. USCIS also may terminate deferred action or parole if it becomes aware that a petitioner has failed to disclose a criminal conviction or has misrepresented a material fact in his or her petition. 4. Decisions on Petitions USCIS will issue decisions granting or denying U nonimmigrant petitions in writing. New 8 CFR 214.14(c)(5) (principal petitioners); new 8 CFR 214.14(f)(6) (derivative family members). If USCIS denies a petition, it will also provide reasons for the denial in writing. New 8 CFR 214.14(c)(5)(ii); new 8 CFR 214.14(f)(6)(iii). In any case in which USCIS denies a petition for U nonimmigrant status, the petitioner may appeal to USCIS's Administrative Appeals Office
(AAO)under established procedures outlined in 8 CFR 103.3. *Id* . a. Granting U Nonimmigrant Status If USCIS finds that the petitioner has satisfied the requirements for U nonimmigrant status, it will grant U nonimmigrant status to the petitioner and derivative family members, unless the annual numerical limit applicable to principal petitioners has been reached. New 8 CFR 214.14(c)(5)(i); new 8 CFR 214.14(f)(6). If a number is available for the principal petitioner, USCIS will send a notice of approval on Form I-797, “Notice of Action,” to the principal petitioner or, if the principal petitioner is overseas, to the Department of State for forwarding to the appropriate U.S. Embassy or Consulate or to the appropriate port of entry (visa exempt alien). New 8 CFR 214.14(c)(5)(i)(A) and (B). USCIS also will send to the principal petitioner a notice of approval on Form I-797 for derivative family members for whom USCIS has approved Form I-918, Supplement A. New 8 CFR 214.14(f)(6)(i) and (ii). If a number is not available, USCIS will notify the petitioner that, in accordance with new 8 CFR 214.14(d)(2), he or she has been placed on the waiting list, given deferred action or parole, and may request employment authorization. USCIS will also grant deferred action or parole to derivative family members with an opportunity to request employment authorization. New 8 CFR 214.14(d)(2). For those principal petitioners and derivative family members who are within the United States, a Form I-94, “Arrival-Departure Record,” indicating U nonimmigrant status will be attached to the approval notice and will constitute evidence that the petitioner has been granted U nonimmigrant status. New 8 CFR 214.14(c)(5)(i)(A); new 8 CFR 214.14(f)(6)(i). For those principal petitioners or qualifying family members who are outside the United States, USCIS will follow the standard procedures for issuing grants as applied to other nonimmigrant categories. USCIS will forward the notice of approval to the Department of State for delivery to the U.S. Embassy or Consulate designated on the petition, which should be the U.S. Embassy or Consulate having jurisdiction over the area in which the alien is located, or to the appropriate port of entry for a visa exempt alien. New 8 CFR 214.14(c)(5)(i)(B); new 8 CFR 214.14(f)(6)(ii). 12 The principal petitioner and any derivative family members should file for a U nonimmigrant visa with the designated U.S. Embassy or Consulate or port of entry. If granted, the visa can be used to travel to the United States for admission as a U nonimmigrant. 12 A visa exempt alien is an alien for whom a valid, unexpired passport is not required for admission to the United States. INA sec. 212(d)(4)(B), 8 U.S.C. 1182(d)(4)(B); 8 CFR 212.1(i). This rule provides that principal petitioners and derivative family members who were granted interim relief and whose petition for U nonimmigrant status is approved will be accorded U nonimmigrant status as of the date that the request for U interim relief was approved. New 8 CFR 214.14(c)(6); new 8 CFR 214.14(f)(6)(i). USCIS has determined that according status as of the date that interim relief was approved is appropriate so that the time a petitioner spent with interim relief will count towards the three years of continuous physical presence in U nonimmigrant status required before the petitioner may adjust status to that of a lawful permanent resident under section 245(m) of the INA, 8 U.S.C. 1255(m). Memorandum from Michael Aytes, Acting Associate Director, Domestic Operations, USCIS, Applications for U Nonimmigrant Status (Jan. 6, 2006). In fact, the House Report for VAWA 2005 indicates that members of Congress expect this result. *See* H.R. Rep. No. 109-233, at 114 (2005); *see also* 151 Cong. Rec. E2605, E2608 (statement of Representative John Conyers). Therefore, under this rule, recipients of U nonimmigrant status will be eligible to submit an application to adjust status three years after the date that interim relief was accorded, rather than having to wait until three years after the date on which USCIS approves their petition for U nonimmigrant status. b. Duration of U Nonimmigrant Status Section 214(p)(6) of the INA, 8 U.S.C. 1184(p)(6), provides that the duration of U nonimmigrant status cannot exceed four years. Extensions are permitted upon certification from a certifying agency that the alien's presence in the United States is required to assist in the investigation or prosecution of qualifying criminal activity. This rule incorporates this provision in new 8 CFR 214.14(g). New 8 CFR 214.14(g)(1) provides that U nonimmigrant status for both principals (U-1) and derivative family members (U-2, U-3, U-4, and U-5) may be approved for a period not to exceed an aggregate of four years. Because derivative status is based on the principal's status, derivative status initially will be approved for a period that does not exceed the period initially approved for the principal. New 8 CFR 214.14(g)(1). Just as with all other nonimmigrant classifications, the U nonimmigrant's Form I-94 issued to evidence status will indicate the approved period of stay. For petitioners who were previously accorded interim relief, USCIS necessarily will indicate on Form I-94 an approved period of stay that is less than four years. Therefore, for example, USCIS will issue a petitioner, who was accorded interim relief two years ago, a Form I-94 reflecting an approved period of stay for up to another two years upon the grant of U nonimmigrant status. This rule further provides that U nonimmigrants can apply for an extension of status in two circumstances. A U nonimmigrant may apply for an extension of status where his or her status was granted for an approved period of stay of less than four years in the aggregate. New 8 CFR 214.14(g)(2)(i). This may be the case, for example, where a U nonimmigrant is outside the United States and experiences delays in consular processing. Because the petition for U nonimmigrant status is granted for a specified four-year period, which runs from the date of approval by USCIS, delays in entering the United States would mean that the alien would not be admitted to the United States in U nonimmigrant status until after a portion of the four-year period stated in the approved petition has already run. The rule specifically addresses the situation where an overseas derivative family member receives an approved period of stay that expires on the same date as the principal's, but that is less than four years because the derivative was unable to enter the United States in a timely fashion due to delays in consular processing. Under this rule, such derivative may apply for an extension of status even though the principal cannot since the principal's period of stay was already approved for a four-year period. New 8 CFR 214.14(g)(2)(i). Necessarily, an approved period of stay based upon such extension of status application will exceed the date on which the principal's approved period of stay expired. The reason for this provision is so that the derivative is able to attain at least three years in U nonimmigrant status. Such period of time in U nonimmigrant status is necessary before the alien may apply to adjust status to that of a lawful permanent resident pursuant to section 245(m) of the INA, 8 U.S.C. 1255(m). To permit extensions of status for derivatives in this rule, USCIS considered the text of section 214(p)(6) of the INA, 8 U.S.C. 1184(p)(6). This statutory provision applies the four-year limit for U nonimmigrant status to all U nonimmigrants equally, and not just to principal petitioners. In addition, it does not include a requirement that the derivative's period of stay run concurrently with the principal's period of stay. To apply for an extension of U nonimmigrant status under new 8 CFR 214.14(g)(2)(i), this rule provides that the U nonimmigrant must file Form I-539, “Application to Extend/Change Nonimmigrant Status,” in accordance with the instructions to the form. USCIS requires this application of most nonimmigrants seeking to extend or change their nonimmigrant status. USCIS cannot grant an extension to exceed an aggregate period of four years in U nonimmigrant status. *Id.* If the aggregate period of four years in U nonimmigrant status has been reached, a U nonimmigrant nevertheless may apply for an extension of status beyond such period if the certifying official attests that the alien's presence in the United States continues to be necessary to assist in the investigation or prosecution of the qualifying criminal activity. New 8 CFR 214.14(g)(2)(ii). Therefore, in order to obtain an extension of U nonimmigrant status on this basis, the U nonimmigrant must file Form I-539 in accordance with the instructions to the form and a newly executed Form I-918, Supplement B. *Id.* 5. Benefits for U Nonimmigrants Section 214(p)(3) of the INA, 8 U.S.C. 1184(p)(3), directs the Secretary of Homeland Security to provide those granted U nonimmigrant status certain benefits along with their status. The Secretary of Homeland Security and other government officials, where appropriate, must provide U nonimmigrants referrals to nongovernmental organizations which can advise such nonimmigrants of their options while in the United States and the resources available to them. INA sec. 214(p)(3)(A), 8 U.S.C. 1184(p)(3)(A). In addition, the Secretary of Homeland Security must provide employment authorization to U nonimmigrants. INA sec. 214(p)(3)(B), 8 U.S.C. 1184(p)(3)(B). This rule implements these requirements in new 8 CFR 214.14(c)(5), (c)(7), (f)(6), and (f)(7), 8 CFR 274a.12(a)(19) and (20), and 8 CFR 274a.13(a). a. Referrals to Nongovernmental Organizations New 8 CFR 214.14(c)(5) and (f)(6) adopt the requirement in section 214(p)(3)(A), 8 U.S.C. 1184(p)(3)(A), that, where appropriate, USCIS provide U nonimmigrants referrals to nongovernmental organizations. USCIS has determined that it is appropriate to provide such referrals to all U nonimmigrants, including principals and derivatives alike, because, as crime victims or family members of crime victims, they may be in need of additional assistance and information. Accordingly, new 8 CFR 214.14(c)(5) and (f)(6) require USCIS to include in the notice approving the U nonimmigrant petition a list of nongovernmental organizations. The nongovernmental organizations that will be included on the list are those that can provide information and advice regarding the U nonimmigrant's options while in the United States, including information regarding options for long-term immigration relief. Such organizations can also provide the principal with necessary resource tools. b. Employment Authorization This rule provides for automatic employment authorization upon a grant of U nonimmigrant status, implementing the requirement at section 214(p)(3)(B) of the INA, 8 U.S.C. 1184(p)(3)(B), that the Secretary of Homeland Security confer employment authorization on aliens granted U nonimmigrant status. Under new 8 CFR 214.14(c)(7) and 8 CFR 214.14(f)(7), principal aliens and derivative family members granted U nonimmigrant status are employment authorized incident to their U nonimmigrant status. This is also reflected in new 8 CFR 274a.12(a)(19) and (20), where the rule adds these two new categories of aliens to the existing list of aliens who are employment authorized incident to status. Automatically conferring employment authorization obviates the need for the ministerial step of affirmatively granting employment authorization during the adjudication of each petition. c. Evidence of Employment Authorization In addition to conferring employment authorization automatically on U nonimmigrants, this rule also provides for the issuance of evidence of employment authorization, an Employment Authorization Document (EAD). To do so, this rule amends 8 CFR 274a.12(a) and 274a.13(a), which govern employment authorization documentation for all classes of aliens. This rule also includes more specific provisions regarding employment authorization documentation for U nonimmigrants in new 8 CFR 214.14(c)(7) and 214.14(f)(7). The EAD can serve as evidence of both employment authorization and identity. 8 CFR 274a.2(b)(1)(v)(A)(4). Aliens seeking new employment or maintaining current employment can present their EAD to employers verifying employment authorization and identity pursuant to the requirements of section 274A(b) of the INA, 8 U.S.C. 1324a(b), and 8 CFR 274a.2. For principal aliens seeking their first EAD based upon U nonimmigrant status, USCIS will use the information contained in Form I-918 to automatically generate an EAD, such that a separate request for an EAD is not necessary. *See* new 8 CFR 214.14(c)(7). USCIS has designed the Form I-918 so that it serves the dual purpose of requesting U nonimmigrant status and employment authorization to streamline the application process. Therefore, principal aliens will not have to file additional paperwork to obtain an initial EAD. For principal aliens applying for U nonimmigrant status from outside the United States, this rule provides that the initial EAD will not be produced until the alien has been admitted to the United States in U-1 nonimmigrant status. *Id.* To receive an EAD, the alien must make a request to USCIS for an EAD accompanied by a copy of his or her Form I-94, “Arrival-Departure Record,” proving the alien's admission to the United States in U-1 nonimmigrant status. *Id.* No forms or filing fees are required. *Id.* Form I-94 should be submitted to the office having jurisdiction over petitions for U nonimmigrant status as indicated on the instructions to Form I-918. Derivative family members seeking an EAD must make their EAD request on a form separate from Form I-918, Supplement A requesting U nonimmigrant status. To request an EAD, derivative family members must file Form I-765, “Application for Employment Authorization,” with the appropriate filing fee (or a request for a fee waiver) stated in the instructions to the form. New 8 CFR 214.14(f)(7); revised 8 CFR 274a.13(a). USCIS could not design Form I-918, Supplement A to serve as a dual purpose form for derivative family members because the form is filed by the principal alien on behalf of, rather than directly by, derivative family members. For derivative family members who are within the United States, Form I- 765 may be filed concurrently with Form I-918, Supplement A, or it may be filed at a later time. New 8 CFR 214.14(f)(7). For derivative family members who are outside the United States, Form I-765 must be filed with the office having jurisdiction over petitions for U nonimmigrant status, as specified in the instructions to the Form I-765, after their admission to the United States in U nonimmigrant status. *Id.* They should include a copy of their approval notice for U nonimmigrant classification, a copy of their passport, and a copy of their Form I-94. This supporting documentation is necessary to verify identity and confirm the alien's physical presence in the United States and U nonimmigrant status. Whether automatically generated or generated based on Form I-765, USCIS will issue the initial EAD on Forms I-766 or I-688B, valid for no longer than the approved period of stay in U nonimmigrant status. U nonimmigrants whose EADs will expire earlier may request a renewal EAD. Renewal requests must be made on Form I-765 in accordance with form instructions and with the appropriate fee or request for a fee waiver. This rule also makes conforming amendments to 8 CFR parts 274a.12 and 274a.13. New 8 CFR 274a.12(a)(19) provides that principal nonimmigrants in U-1 status are employment authorized incident to status and do not need to apply to USCIS for a document evidencing this employment authorization. New 8 CFR 274a.12(a)(20) and revised 8 CFR 274a.13(a) provide that derivative family members in U-2, U-3, U-4, and U-5 nonimmigrant status are employment authorized incident to status, but must apply to USCIS for employment authorization documentation. This rule also makes technical corrections to 8 CFR parts 274a.12 and 274a.13(a) to eliminate certain errors. The corrections clarify:
(1)That asylees described in 8 CFR 274a.12(a)(5) and T nonimmigrants described in 8 CFR 274a.12(a)(16) do not need to apply to USCIS in order to receive a document evidencing their employment authorization incident to status; and
(2)that aliens granted Family Unity benefits under the LIFE Act described in 8 CFR 274a.12(a)(14) and V nonimmigrants described in 8 CFR 274a.12(a)(15) must apply to USCIS in order to receive a document evidencing such employment authorization. This rule also reserves 8 CFR 274a.12(a)(17) and
(18)for future use. 6. Travel Outside the United States Aliens with U nonimmigrant status may travel outside the United States. However, in order to return to the United States, such aliens must obtain a U nonimmigrant visa for re-entry to the United States unless they are visa exempt. 8 CFR 212.1. They also should keep in mind that if they accrued more than 180 days of “unlawful presence” prior to obtaining U nonimmigrant status, they may be found inadmissible upon their return to the United States. *See* INA sec. 212(a)(9)(B), 8 U.S.C. 1182(a)(9)(B). Any alien other than a lawful permanent resident who was unlawfully present in the United States between 180 days and one year and departs the United States is barred from readmission to the United States for three years from the date of departure. INA sec. 212(a)(9)(B)(i)(I), 8 U.S.C. 1182(a)(9)(B)(i)(I). If the alien was unlawfully present for more than one year, he or she is barred from seeking readmission for a period of 10 years from the date of departure. INA sec. 212(a)(9)(B)(i)(II), 8 U.S.C. 1182(a)(9)(B)(i)(II). An alien is deemed to be unlawfully present in the United States if he or she remains in the United States after the expiration of an authorized period of stay or is present in the United States without being admitted or paroled. INA sec. 212(a)(9)(B)(ii), 8 U.S.C. 1182(a)(9)(B)(ii). U nonimmigrant aliens subject to the unlawful presence ground of inadmissibility may request a waiver of inadmissibility on Form I-192, as discussed earlier in this Supplementary Information, prior to or upon their return to the United States. For nonimmigrants seeking admission to the United States, a valid, unexpired passport is required in addition to a valid visa, unless an exemption applies. *See* INA sec. 212(a)(7)(B), 8 U.S.C. 1182(a)(7)(B); 8 CFR 212.1. In unforeseen emergency situations, these requirements may be waived for certain categories of nonimmigrants. INA sec. 212(d)(4)(A), 8 U.S.C. 1182(d)(4)(A); 8 CFR 212.1(g). This rule extends eligibility to apply for this waiver to U nonimmigrants and petitioners for U nonimmigrant status. USCIS believes that such an extension is necessary because U nonimmigrants or petitioners for U nonimmigrant status, as crime victims, may be faced with threats to their lives or safety which may make them unable to timely obtain a visa or passport. Accordingly, this rule amends 8 CFR 212.1(g) to add U-1, U-2, U-3, U-4, and U-5 nonimmigrants and those seeking such status to the list of nonimmigrants who may seek a waiver of the visa and passport requirements for unforeseen emergencies. *See* revised 8 CFR 212.1(g). This waiver may apply to a U nonimmigrant who needs to travel outside the United States but, due to an unforeseen emergency, is unable to obtain a passport from his or her country of citizenship or nationality or a visa from a U.S. Embassy or Consulate in order to re-enter the United States. This waiver also may apply to a petitioner for U nonimmigrant status who is outside the United States, but who needs to enter the United States due to an unforeseen emergency after Form I-918 is adjudicated but before he or she has received a visa from a U.S. embassy or consular office or obtained a passport from his or her country of citizenship or nationality. For example, USCIS anticipates that this waiver could be needed where government officials from the alien victim's home country are implicated in the criminal activity, and, as a result, the petitioner is unable to obtain a passport or safely travel to the U.S. Embassy or Consulate to obtain a visa. A waiver may also be needed where the perpetrator is not in custody, has made threats against the petitioner, and the petitioner needs to enter the United States immediately to ensure his or her safety. As under the current regulatory provision, this rule maintains that all eligible nonimmigrants must request a waiver on Form I-193, “Application for Waiver of Passport and/or Visa.” Revised 8 CFR 212.1(g). New 8 CFR 212.1(p) authorizes the director of the office having jurisdiction over the adjudication of Form I-918 to adjudicate the waiver application. This rule makes a technical correction to current 8 CFR 212.1(g) by deleting the reference to “Deputy Commissioner.” This position no longer exists after DHS took over the functions of the former Immigration and Naturalization Service in March of 2003. See 6 U.S.C. 291(a). 7. Revocation of U Nonimmigrant Status This rule establishes USCIS's authority to revoke its approval of Form I-918 and Form I-918, Supplement A, and any waivers of inadmissibility that were granted in conjunction with the petition. New 8 CFR 214.14(h). Revocation authority flows from section 214(a)(1) of the INA, 8 U.S.C. 1184(a)(1). This provision authorizes the Secretary of Homeland Security to prescribe, by regulation, the time and conditions of admission of any nonimmigrant. Implicit in this authority is the authority to prescribe the conditions under which nonimmigrant status may be revoked. Revocation of an approved U nonimmigrant status petition necessarily results in the termination of U nonimmigrant status. New 8 CFR 214.14(h)(4). The rule establishes two forms of revocation: Automatic and by notice. Automatic revocation applies where a principal alien with an approved U nonimmigrant petition who applied from outside the United States notifies USCIS that he or she will not use the approved petition to enter the United States. New 8 CFR 214.14(h)(1). Revocation by notice is at the discretion of USCIS. *See* new 8 CFR 214.14(h)(2). This rule establishes the following bases for revocations by notice:
(1)Where the certifying official withdraws the U nonimmigrant status certification upon which the principal U nonimmigrant's petition was based or disavows the contents of the certification in writing;
(2)where approval of the petition was in error;
(3)where there was fraud in the petition;
(4)where a derivative's relationship to the principal has terminated; and
(5)where the principal's approved petition for U-1 nonimmigrant status is revoked. *Id.* USCIS has determined that revocation of a petition by notice in cases where the certification is withdrawn is appropriate because when that occurs, the principal no longer meets the requirements for U nonimmigrant status as described by section 101(a)(15)(U) of the INA, 8 U.S.C. 1101(a)(15)(U), and therefore, is no longer maintaining status. A nonimmigrant who fails to maintain nonimmigrant status is removable from the United States under section 237(a)(1)(C)(i) of the INA, 8 U.S.C. 1227(a)(1)(C)(i). USCIS has determined that revocation of a petition by notice in cases of fraud or error is appropriate because both bases indicate that the petitioner may have obtained a benefit for which he or she was not eligible. USCIS has also determined that revocation of a derivative petition where the relationship to the principal has terminated or where the principal's U-1 nonimmigrant status has been revoked is appropriate because, as a general matter, a derivative's status is dependent upon the principal's status. This rule classifies these bases for revocation as discretionary rather than automatic because USCIS recognizes that there may be instances in which revocation of the derivative petition is not warranted. For example, revocation of the derivative petition may not be warranted where the derivative is providing valuable assistance to the certifying agency in the investigation or prosecution of criminal activity. Providing such assistance is an eligibility requirement for U nonimmigrants, including derivatives, seeking to adjust status to that of a lawful permanent resident. *See* INA sec. 245(m), 8 U.S.C. 1255(m). At new 8 CFR 214.14(h)(2)(ii), this rule provides that the notice of intent to revoke must be in writing and contain a statement of the grounds for the revocation. This provision also states that the alien may submit evidence in rebuttal within 30 days of the date of the notice, which is the standard amount of time given for rebutting a notice of intent to revoke. *See, e.g.* , 8 CFR 214.2(h)(11)(iii)(B); 8 CFR 214.11(s)(2). The rule mandates that USCIS must consider all relevant evidence presented in deciding whether to revoke the approval of the petition. The rule provides that just as with the initial adjudication of Form I-918, the determination of what is relevant evidence and the weight to be given to that evidence will be within the sole discretion of USCIS. If USCIS revokes approval of a petition and thereby terminates U nonimmigrant status, USCIS will provide the alien with a written notice of revocation that explains the specific reasons for the revocation. New 8 CFR 214.14(h)(2)(ii). For revocations by notice, this rule permits appeals to USCIS's AAO. New 8 CFR 214.14(h)(3). The rule requires appeals to be submitted within 30 days of the date of the notice of revocation. USCIS believes this is a reasonable amount of time for the petitioner to appeal the decision and is in keeping with the desire to promote administrative efficiency and finality in adjudications. In addition, a timeframe of 30 days to file an appeal is a standard period for filing an appeal. *See,* *e.g.* , 8 CFR 103.3(a)(2)(i); 8 CFR 214.2(h)(12)(ii). Appeals are not permitted for automatic revocations. New 8 CFR 214.14(h)(3). Once the certifying agency has withdrawn the certification, the alien ceases to be statutorily eligible for U nonimmigrant status, and there is no basis for an appeal. Once USCIS revokes a principal alien's approved petition for U nonimmigrant status, USCIS will also deny any pending U nonimmigrant petitions for qualifying family members. New 8 CFR 214.14(h)(4). Without an approved petition for U nonimmigrant status for the principal, there is no statutory basis for granting U-2, U-3, U-4, or U-5 derivative status. This rule provides that revocation of a previously approved petition will have no effect on the annual cap. New 8 CFR 214.14(h)(4). Therefore, once a U nonimmigrant status is granted to a principal alien, the number will be deemed to have been used and cannot be used again. In developing this rule, USCIS considered providing for re-use of the number. However, USCIS determined that not only would it be infeasible to track such numbers, USCIS does not believe it has the statutory authority to recapture the numbers after the end of each fiscal year. 8. Removal Proceedings This rule provides for another means for terminating U nonimmigrant status. New 8 CFR 214.14(i) states that USCIS may exercise its existing authority to institute removal proceedings under section 239 of the INA, 8 U.S.C. 1229, for conduct committed after admission, for conduct or a condition that was not disclosed to USCIS prior to the granting of U nonimmigrant status, for misrepresentations of material facts in the Form I-918, Form I-918, Supplement A, or supporting documentation, or after revocation of U nonimmigrant status. Each of these circumstances may give rise to a ground of removability under section 237(a) of the INA, 8 U.S.C. 1227(a). D. Filing and Biometric Services Fees USCIS has determined that no fee will be charged for filing Form I-918 or for derivative U nonimmigrant status for qualifying family members. See 72 FR 29851, at 29865. Petitioners must, however, submit the established fee for biometric services for each person ages 14 through 79 inclusive with each U nonimmigrant status petition. New 8 CFR 214.14(c)(2)(iv). USCIS recognizes that many petitioners for U nonimmigrant status may be unable to pay the biometric services fee. Petitioners who are financially unable to pay the biometric services fee may submit an application for a fee waiver, as outlined in 8 CFR 103.7(c). The granting of a fee waiver will be at the sole discretion of USCIS. See 72 FR 29851, at 29865. Further guidance on fee waivers can be found on USCIS's Web site at *http://www.uscis.gov/graphics/formsfee/forms/index.htm.* This program involves the personal well-being of a few applicants and petitioners, and the decision to waive the petition fee reflects the humanitarian purposes of the authorizing statutes. This blanket fee exemption is because it is consistent with the legislative intent to assist persons in these circumstances. Also, anecdotal evidence indicates that applicants under these programs are generally deserving of a fee waiver. Thus, USCIS determined that these programs would likely result in such a high number of waiver requests that adjudication of those requests would overtake the adjudication of the benefit requests themselves. IV. Regulatory Requirements A. Administrative Procedure Act USCIS has determined that delaying this rule to allow public comment would be impracticable and contrary to the public interest; thus, this rule is being published as an interim final rule and is effective 30 days after publication. Nonetheless, USCIS invites comments and will address comments in the final rule. USCIS finds a compelling public need for rapid implementation of this rule justifying the exception allowed by the Administrative Procedure Act
(APA)to the requirements for soliciting public comment before a rule shall take effect. 5 U.S.C. 553(b)(3)(B). This exception should be used by agencies in cases, such as this, where delay could result in serious harm. See, *Jifry* v. *Fed. Aviation Admin.,* 370 F.3d 1174 (D.C. Cir. 2004) (finding the exception excuses notice and comment where delay could result in serious harm). Congress created the new U classification to curtail criminal activity, protect victims of crimes committed against them in the United States, and encourage victims to fully participate in the investigation of the crimes and the prosecution of the perpetrators. See BIWPA sec. 1513(a)(2). Many immigrant crime victims fear coming forward to assist law enforcement until this rule is effective. Thus, continued delay of this rule further exposes victims of these crimes to danger, and leaves their legal status in an indeterminate state. Moreover, the delay prevents law enforcement agencies from receiving the benefits of the BIWPA and continues to expose the U.S. to security risks and other effects of human trafficking. Therefore, delay in the implementation of these regulations would be contrary to the public interest. Further, USCIS finds that the good cause exception is warranted by the statutorily imposed deadline and the complicated nature of this rule. Agencies may bypass public comment when a statutorily imposed deadline is combined with a complicated statutory or regulatory scheme and there is either evidence that the agency has been diligent in its efforts to comply with the statutory deadline or a compelling need for rapid implementation of the regulation. *See Methodist Hosp. of Sacramento* v. *Shalala,* 38 F.3d 1225 (D.C. Cir. 1994) (5 month statutory deadline and complex regulatory framework constituted good cause for exception); *Petry* v. *Block,* 737 F.2d 1193, 1201 (D.C. Cir. 1984) (agency's good cause argument was justifiable “in light of extremely limited timeframe given by Congress in relation to amount of work required to produce rule.”). Section 828 of the Violence Against Women and Department of Justice Reauthorization Act of 2005 (Pub. L. 109-162, January 5, 2006) requires DHS to publish regulations required by that Act within 180 days after enactment (i.e., July 4, 2006). Unfortunately, the statutory and regulatory framework of U.S. immigration laws is exceedingly complex. *See Zadvydas* v. *Davis,* 533 U.S. 678 (2001). Plus, these regulations have required input and coordination with law enforcement agencies affected by this rule to balance its humanitarian goals and law enforcement interests. Accordingly, DHS finds that good cause exists under 5 U.S.C. 553(b) to make this interim rule effective 30 days following publication in the **Federal Register** , before closure of the 60-day public comment period. DHS nevertheless invites written comments on this interim rule, and will consider any timely comments in preparing a final rule. DHS notes that in compliance with the Paperwork Reduction Act, USCIS published notices in the **Federal Register** requesting public comment on Form I-918, “Petition for U Nonimmigrant Status,” Supplement A, “Petition for Qualifying Family Member of U-1 Recipient,” and Supplement B, “U Nonimmigrant Status Certification.” *See* 70 FR 72460 (Dec. 5, 2005) (60-day notice); 71 FR 32117 (June 2, 2006) (30-day notice). The instructions to these forms include descriptions of the eligibility and evidentiary requirements for obtaining U nonimmigrant status. USCIS received 55 comments in response to the 60-day notice. The comments addressed the comprehension, readability, and burden estimate of the form, as well as the substance of the form instructions. The substantive comments primarily focused on seven general areas:
(1)Changes required by intervening legislation;
(2)the certification process;
(3)instructions for interim relief recipients;
(4)filing deadlines;
(5)fees;
(6)the admissibility requirement; and
(7)the evidence standard. In response to these comments, USCIS revised the forms for the 30-day notice and incorporated the comments, as appropriate, into this interim rule. USCIS received no comments in response to the 30-day notice. To review the forms, a summary of the public comments, and USCIS' response to the comments, contact the Regulatory Management Division, U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529, *rfs.regs@dhs.gov* (e-mail). B. Regulatory Flexibility Act The Regulatory Flexibility Act
(RFA)(5 U.S.C. 605(b)), as amended by the Small Business Regulatory Enforcement and Fairness Act of 1996 (SBRFA), requires an agency to prepare and make available to the public a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small governmental jurisdictions). RFA analysis is not required when a rule is exempt from notice and comment rulemaking under 5 U.S.C. 553(b). USCIS has determined that this rule is exempt from notice and comment rulemaking pursuant to 5 U.S.C. 553(b)(B). Further, this regulation directly regulates individuals, not small entities as that term is defined under the RFA. Therefore, an RFA analysis is not required for this rule. C. Unfunded Mandates Reform Act of 1995 This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more in one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995. D. Small Business Regulatory Enforcement Fairness Act of 1996 This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets. E. Executive Order 12866 (Regulatory Planning and Review) This rule is considered by USCIS to be a significant regulatory action under Executive Order 12866, section 3(f), Regulatory Planning and Review. Accordingly, this regulation has been submitted to the Office of Management and Budget for review. This rule establishes the requirements and procedures for aliens seeking nonimmigrant status under the U classification. The U nonimmigrant classification is available to alien victims of certain criminal activity who assist government officials in investigating or prosecuting that criminal activity, and provides temporary immigration benefits (nonimmigrant status and employment authorization), potentially leading to permanent resident status. This rule requires and establishes an application process for U nonimmigrant status and employment authorization, designating Form I-918 as the form that petitioners must use to request U nonimmigrant status. This rule also imposes petition requirements and processing fees. 1. Costs to Petitioners USCIS estimates the total annual cost of this interim rule to be $6,182,000. This cost includes the biometric services fee that the petitioner must pay to USCIS, the opportunity cost of time needed to submit the required forms, the opportunity cost of time required for a visit to an Application Support Center, and the cost of traveling to an Application Support Center. Below, these costs are described in more detail. This rule requires any individual seeking U nonimmigrant status to pay the prescribed biometric services fee. This fee is currently $80 per person. *See* 72 FR 29851. USCIS estimates that it will receive 12,000 Forms I-918 and 24,000 Forms I-918, Supplement A each fiscal year. Therefore, USCIS estimates that this rule will cost petitioners $960,000 (12,000 × $80 biometric services charge) in fees for Forms I-918, and $1,920,000 (24,000 × $80 biometric services charge) in fees for Forms I-918, Supplement A. The total cost of this rule to petitioners will be $2,880,000 in biometric services fees each fiscal year. Additionally, USCIS estimates that each Form I-918 petitioner will spend 5 hours complying with this rule. USCIS estimates that each petitioner will spend 75 minutes reading the Form I-918 instructions. It will take 75 minutes to complete the form and 150 minutes to assemble and submit the form, for a total of 300 minutes of each petitioner's time. USCIS estimates that petitioners also submitting Form I-918, Supplement A will spend 1 hour and 30 minutes complying with this rule. USCIS estimates that each petitioner will spend 30 minutes reading the instructions to Form I-918, Supplement A, 30 minutes to complete the form, and 30 minutes to assemble and submit the form. Petitioners and qualifying family members will also be required to travel to the nearest USCIS Application Support Center
(ASC)to provide biometrics information. While travel times and distances will vary, USCIS estimates the average round-trip to an ASC will be 20 miles, and that the average time for that trip will be an hour. It will take an average of one hour for a petitioner or qualifying family member to wait for service, and to have his or her biometrics collected. Total time for each individual to comply with this requirement is two hours. As previously discussed, USCIS expects to receive a total of 36,000 forms (12,000 Forms I-918 and 24,000 Forms I-918, Supplement A) annually. However, USCIS does not know how many of these forms will be filed by adults on behalf of children. Consequently, it is difficult for USCIS to estimate the opportunity cost of time for the 36,000 petitioners and qualifying family members with precision. For the purpose of this economic analysis, USCIS will assume that all petitioners and qualifying family members are adults and use an opportunity cost of time based on national wage rates. Specifically, USCIS is using the mean national hourly wage rate from the Bureau of Labor Statistics
(BLS)for 2003 as a proxy for the opportunity cost of an individual's time. BLS estimates for “All Occupations” the mean hourly wage was $17.75 in 2003. Using this BLS wage data, USCIS estimates the total cost for petitioner time spent is $1,491,000 (12,000 persons × 7.0 hours × $17.75) for Form I-918 petitioners, and $1,491,000 (24,000 persons × 3.5 hours × $17.75) for Form I-918, Supplement A petitioners and qualifying family members. Additionally, there is the cost of travel. USCIS anticipates that most petitioners will drive privately-owned vehicles to the ASCs. The General Services Administration
(GSA)establishes a reimbursement rate that is used when privately owned vehicles are used by federal employees while on official travel. We consider this GSA reimbursement rate to be a reasonable proxy for the cost of driving to an ASC. This reimbursement rate fluctuates over time; however, as of January 1, 2006, GSA calculates the cost of operating a privately-owned vehicle as 44.5 cents a mile. Therefore, USCIS calculates the transportation costs as $320,400 (36,000 persons × 44.5 cents per mile × 20 miles). In summary, USCIS estimates the total cost of the program would be $2,880,000 in biometric services fees, $2,982,000 million in time and $320,400 in transportation costs. The total cost of compliance to this rule each fiscal year by 36,000 persons is $6,182,000 ($2,880,000 + $2,982,000 million + $320,400). 2. Treatment of Petitions That Exceed the Statutory Cap The number of petitions for U-1 nonimmigrant status that USCIS may grant is limited to 10,000 in any fiscal year (October 1 through September 30). INA sec. 214(p)(2), 8 U.S.C. 1184(p)(2). USCIS anticipates receiving 12,000 petitions each fiscal year. Therefore, the potential exists that the number of approvable petitions per fiscal year will exceed the numerical limit (i.e., cap). USCIS has identified the following four alternatives, the first being chosen for this rule: 1. USCIS would adjudicate petitions on a first in, first out basis. Petitions received after the limit has been reached would be reviewed to determine whether or not they are approvable but for the numerical cap. Approvable petitions that are reviewed after the numerical cap has been reached would be placed on a waiting list and written notice would be sent to the petitioner. Priority on the waiting list would be based upon the date on which the petition is filed. USCIS would provide petitioners on the waiting list with interim relief until the start of the next fiscal year in the form of deferred action, parole, or a stay of removal. At the beginning of the next fiscal year, petitions on the waiting list would be granted first. Advantages to this alternative include: assisting law enforcement agencies by allowing the alien victim to remain in the United States to assist in the investigation or prosecution of criminal activity while waiting for new numbers to become available; improving customer service by allowing victims to remain in the United States, giving them an opportunity to access victims services to which they may be entitled; and providing employment authorization to alien victims so they will have a lawful means through which to support themselves and their families. Disadvantages include additional administrative and case management costs to USCIS due to the need to maintain a waiting list during the fiscal year and to adjudicate interim relief. In addition, those applying for U nonimmigrant status from outside the United States may be disadvantaged because they will not be able to enter the United States while waiting for a new number to become available. 2. USCIS would adjudicate petitions on a first in, first out basis, establishing a waiting list for petitions that are pending or received after the numerical cap has been reached. Priority on the waiting list would be based upon the date on which the petition was filed. USCIS would not provide interim relief to petitioners whose petitions are placed on the waiting list. This means that petitioners who are not in status would be accruing unlawful presence and would be removable. At the beginning of the next fiscal year, petitions on the waiting list would be adjudicated first. The primary advantage of this alternative is that it eliminates the need for petitioners to file a new petition each year and keeps petitions in process. Disadvantages of this alternative include: little assurance that the alien victim will not be removed from the United States; law enforcement has no assurance that the alien victim will be present in the United States to assist in the investigation or prosecution of criminal activity; without permission to remain in the U.S., the alien victim may be deprived of victims services to which they may be entitled. This approach would also result in additional administrative and case management costs by creating the need to maintain a waiting list during the fiscal year and could create a perpetual waiting list/backlog. 3. USCIS would adjudicate petitions on a first in, first out basis. However, new filings would be reviewed to identify particularly compelling cases for adjudication. New filings would be rejected once the numerical cap is reached. No official waiting list would be established; however, interim relief until the start of the next fiscal year would be provided for some compelling cases. If a case was not particularly compelling, the filing would be denied or rejected. The advantage to this approach is that it would provide a mechanism to ensure that certain alien victims needed for the investigation or prosecution of criminal activity would be able to remain in the United States. Disadvantages include: difficulty in establishing balanced standards regarding who will receive interim relief; depriving alien victims not given interim relief of victims' services to which they may be entitled; and depriving law enforcement of assistance of victims not given interim relief. An additional disadvantage would be that petitioners would have to pay the filing fee in order for USCIS to review the petition to determine whether it was particularly compelling and merited interim relief. A large percentage of the petitions would likely be denied or rejected which would result in financial losses to the petitioners. 4. USCIS would adjudicate petitions on a first in, first out basis. However, new filings would be rejected once the numerical cap is reached. No waiting list would be established, nor would interim relief be granted. Advantages to this approach include no additional administrative or case management costs since it would allow rejection once the cap is reached, and equal treatment for those applying from outside the United States. Disadvantages include: depriving law enforcement of cooperating alien victims for those whose petitions are rejected; depriving rejected petitioners access to victims services to which they may be entitled; disadvantaging those who are unable to file early in the fiscal year; and potentially impeding case processing efficiency by causing adjudication to occur in waves (i.e., busy during the beginning of the fiscal year and then slow once the cap is reached). USCIS chose the first alternative for this rule because USCIS believes that it best meets the goals of the BIWPA by both ensuring the protection of alien victims and minimizing the risk of disruptions to criminal investigations and prosecutions. USCIS solicits comments on these alternatives, as well as other proposals for managing the numerical limitation on grants of U nonimmigrant status. F. Executive Order 13132 (Federalism) This rule 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. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. G. Executive Order 12988 (Civil Justice Reform) This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988. H. Family Assessment I have reviewed this regulation and have determined that it may affect family well-being as that term is defined in section 654 of the Treasury General Appropriations Act, 1999, Public Law 105-277, Div. A. Accordingly, I have assessed this action in accordance with the criteria specified by section 654(c)(1). This regulation will enhance family well-being by encouraging vulnerable individuals who have been victims of certain criminal activity, or in some cases, whose family members have been victims of certain criminal activity, to report the criminal activity, and by providing critical assistance and benefits. Additionally, this regulation allows qualifying family members to obtain U nonimmigrant status once the principal petitioner has received status. I. Paperwork Reduction Act This rule establishes application requirements and procedures for aliens to receive U nonimmigrant status, defined in section 101(a)(15)(U) of the INA, 8 U.S.C. 1101(a)(15)(U). Some of the information collection requirements contained in this rule have been cleared by the Office of Management and Budget
(OMB)under the provisions of the Paperwork Reduction Act. Clearance numbers for these collections are contained in 8 CFR 299.5, Display Control Numbers, and are noted herein. Form I-192, “Application for Advance Permission to Enter as Nonimmigrant,” OMB Control Number 1615-0017; Form I-193, “Application for Waiver of Passport and/or Visa,” OMB Control Number 1653-0004; Form I-539, “Application to Extend/Change Nonimmigrant Status,” OMB Control Number 1615-0003; Form I-765, “Application for Employment Authorization,” OMB Control Number 1615-0040. In addition, this rule requires that an alien submit a completed Form I-918, “Petition for U Nonimmigrant Status,” and supporting documentation to apply for U nonimmigrant status. This Form I-918 and supporting documentation is considered a new information collection under the Paperwork Reduction Act. OMB has approved this new information collection in accordance with the Paperwork Reduction Act of 1995 and assigned it OMB Control Number 1615-0104. List of Subjects 8 CFR Part 103 Administrative practice and procedure, Authority delegations (Government agencies), Fees, Forms, Freedom of information, Privacy, Reporting and recordkeeping requirements, Surety bonds. 8 CFR Part 212 Administrative practice and procedure, Aliens, Immigration, Passports and visas, Reporting and recordkeeping requirements. 8 CFR Part 214 Administrative practice and procedure, Aliens, Cultural exchange programs, Employment, Foreign officials, Health professions, Reporting and recordkeeping requirements, Students, victims. 8 CFR Part 248 Aliens, Reporting and recordkeeping requirements. 8 CFR Part 274a Administrative practice and procedure, Aliens, Employment, Penalties, Reporting and recordkeeping requirements. 8 CFR Part 299 Immigration, Reporting and recordkeeping requirements. Accordingly, chapter I of title 8 of the Code of Federal Regulations is amended as follows: PART 103—POWERS AND DUTIES; AVAILABILITY OF RECORDS 1. The authority citation for part 103 continues to read as follows: Authority: 5 U.S.C. 552, 552a; 8 U.S.C. 1101, 1103, 1304, 1356; 31 U.S.C. 9701; Public Law 107-296, 116 Stat. 2335 (6 U.S.C. 1 *et seq.* ); E.O. 12356, 47 FR 14874, 15557, 3 CFR, 1982 Comp., p. 166; 8 CFR part 2. 2. Section 103.7(b)(1) is amended by adding, in proper alpha/numeric sequence, a new “Form I-918” and “Form I-918, Supplement A” to read as follows: § 103.7 Fees.
(b)* * *
(1)* * * Form I-918. For filing a petition to classify an alien as a nonimmigrant under section 101(a)(15)(U)(i) of the Act, 8 U.S.C. 1101(a)(15)(U)(i)—$270. For filing a petition to classify an alien as a nonimmigrant under section 101(a)(15)(U)(ii) of the Act, 8 U.S.C. 1101(a)(15)(U)(ii), on Form I-918, Supplement A concurrently with Form I-918—$120 per family member, up to a maximum amount of $540. Form I-918, Supplement A. For filing a petition to classify an alien as a nonimmigrant under section 101(a)(15)(U)(ii) separately from Form I-918—$120. PART 212—DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS; ADMISSION OF CERTAIN INADMISSABLE ALIENS; PAROLE 3. The authority citation for part 212 continues to read as follows: Authority: 8 U.S.C. 1101 and note, 1102, 1103, 1182 and note, 1184, 1187, 1223, 1225, 1226, 1227. 4. Section 212.1 is amended by revising paragraph
(g)and adding a new paragraph
(p)to read as follows: § 212.1 Documentary requirements for nonimmigrants.
(g)*Unforeseen emergency.* A nonimmigrant seeking admission to the United States must present an unexpired visa and passport valid for the amount of time set forth in section 212(a)(7)(B) of the Act, 8 U.S.C. 1182(a)(7), or a valid biometric border crossing card, issued by the DOS on Form DSP-150, at the time of application for admission, unless the nonimmigrant satisfies the requirements described in one or more of the paragraphs
(a)through
(f)or (i), (o), or
(p)of this section. Upon a nonimmigrant's application on Form I-193, “Application for Waiver of Passport and/or Visa,” a district director may, in the exercise of his or her discretion, on a case-by-case basis, waive the documentary requirements, if satisfied that the nonimmigrant cannot present the required documents because of an unforeseen emergency. The district director may at any time revoke a waiver previously authorized pursuant to this paragraph and notify the nonimmigrant in writing to that effect.
(p)*Alien in U-1 through U-5 classification.* Individuals seeking U-1 through U-5 nonimmigrant status may avail themselves of the provisions of paragraph
(g)of this section, except that the authority to waive documentary requirements resides with the director of the USCIS office having jurisdiction over the adjudication of Form I-918, “Petition for U Nonimmigrant Status.” 5. Section 212.17 is added, to read as follows: § 212.17 Applications for the exercise of discretion relating to U nonimmigrant status.
(a)*Filing the waiver application.* An alien applying for a waiver of inadmissibility under section 212(d)(3)(B) or (d)(14) of the Act (waivers of inadmissibility), 8 U.S.C. 1182(d)(3)(B) or (d)(14), in connection with a petition for U nonimmigrant status being filed pursuant to 8 CFR 214.14, must submit Form I-192, “Application for Advance Permission to Enter as Non-Immigrant,” in accordance with the form instructions, along with Form I-918, “Petition for U Nonimmigrant Status,” or Form I-918, Supplement A, “Petition for Qualifying Family Member of U-1 Recipient.” An alien in U nonimmigrant status who is seeking a waiver of section 212(a)(9)(B) of the Act, 8 U.S.C. 1182(a)(9)(B) (unlawful presence ground of inadmissibility triggered by departure from the United States), must file Form I-192 prior to his or her application for re-entry to the United States in accordance with the form instructions.
(b)*Treatment of waiver application.*
(1)USCIS, in its discretion, may grant Form I-192 based on section 212(d)(14) of the Act, 8 U.S.C. 1182(d)(14), if it determines that it is in the public or national interest to exercise discretion to waive the applicable ground(s) of inadmissibility. USCIS may not waive a ground of inadmissibility based upon section 212(a)(3)(E) of the Act, 8 U.S.C. 1182(a)(3)(E). USCIS, in its discretion, may grant Form I-192 based on section 212(d)(3) of the Act, 8 U.S.C. 1182(d)(3), except where the ground of inadmissibility arises under sections 212(a)(3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), or (3)(E) of the Act, 8 U.S.C. 1182(a)(3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), or (3)(E).
(2)In the case of applicants inadmissible on criminal or related grounds, in exercising its discretion USCIS will consider the number and severity of the offenses of which the applicant has been convicted. In cases involving violent or dangerous crimes or inadmissibility based on the security and related grounds in section 212(a)(3) of the Act, USCIS will only exercise favorable discretion in extraordinary circumstances.
(3)There is no appeal of a decision to deny a waiver. However, nothing in this paragraph is intended to prevent an applicant from re-filing a request for a waiver of ground of inadmissibility in appropriate cases.
(c)*Revocation.* The Secretary of Homeland Security, at any time, may revoke a waiver previously authorized under section 212(d) of the Act, 8 U.S.C. 118(d). Under no circumstances will the alien or any party acting on his or her behalf have a right to appeal from a decision to revoke a waiver. PART 214—NONIMMIGRANT CLASSES 6. The authority citation for part 214 is revised to read as follows: Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1186a, 1187, 1221, 1281, 1282, 1301- 1305 and 1372; section 643, Pub. L. 104-208, 110 Stat. 3009-708; Pub. L. 106-386, 114 Stat. 1477-1480; section 141 of the Compacts of Free Association with the Federated States of Micronesia and the Republic of the Marshall Islands, and with the Government of Palau, 48 U.S.C. 1901 note, and 1931 note, respectively; 8 CFR part 2. 7. Section 214.1 is amended by: a. Adding a new paragraph (a)(1)(ix); and by b. Adding classification designations in proper numeric/alphabetical sequence in the table in paragraph (a)(2). The additions read as follows: § 214.1 Requirements for admission, extension, and maintenance of status.
(a)* * *
(1)* * *
(ix)Section 101(a)(15)(U)(ii) is divided into (U)(ii), (U)(iii), (U)(iv), and (U)(v) for the spouse, child, parent, and siblings, respectively, of a nonimmigrant classified under section 101(a)(15)(U)(i); and
(2)* * * Section Designation 101(a)(15)(U)(i) U-1. 101(a)(15)(U)(ii) U-2, U-3, U-4, U-5. 8. A new § 214.14 is added to read as follows: § 214.14 Alien victims of certain qualifying criminal activity.
(a)*Definitions.* As used in this section, the term:
(1)*BIWPA* means Battered Immigrant Women Protection Act of 2000 of the Victims of Trafficking and Violence Protection Act of 2000, div. B, Violence Against Women Act of 2000, tit. V, Pub. L. 106-386, 114 Stat. 1464, (2000), *amended by* Violence Against Women and Department of Justice Reauthorization Act of 2005, tit. VIII, Pub. L. 109-162, 119 Stat. 2960 (2006), *amended by* Violence Against Women and Department of Justice Reauthorization Act—Technical Corrections, Pub. L. 109-271, 120 Stat. 750 (2006).
(2)*Certifying agency* means a Federal, State, or local law enforcement agency, prosecutor, judge, or other authority, that has responsibility for the investigation or prosecution of a qualifying crime or criminal activity. This definition includes agencies that have criminal investigative jurisdiction in their respective areas of expertise, including, but not limited to, child protective services, the Equal Employment Opportunity Commission, and the Department of Labor.
(3)*Certifying official* means:
(i)The head of the certifying agency, or any person(s) in a supervisory role who has been specifically designated by the head of the certifying agency to issue U nonimmigrant status certifications on behalf of that agency; or
(ii)A Federal, State, or local judge.
(4)*Indian Country* is defined as:
(i)All land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation;
(ii)All dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state; and
(iii)All Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through such allotments.
(5)*Investigation or prosecution* refers to the detection or investigation of a qualifying crime or criminal activity, as well as to the prosecution, conviction, or sentencing of the perpetrator of the qualifying crime or criminal activity.
(6)*Military Installation* means any facility, base, camp, post, encampment, station, yard, center, port, aircraft, vehicle, or vessel under the jurisdiction of the Department of Defense, including any leased facility, or any other location under military control.
(7)*Next friend* means a person who appears in a lawsuit to act for the benefit of an alien under the age of 16 or incapacitated or incompetent, who has suffered substantial physical or mental abuse as a result of being a victim of qualifying criminal activity. The next friend is not a party to the legal proceeding and is not appointed as a guardian.
(8)*Physical or mental abuse* means injury or harm to the victim's physical person, or harm to or impairment of the emotional or psychological soundness of the victim.
(9)*Qualifying crime or qualifying criminal activity* includes one or more of the following or any similar activities in violation of Federal, State or local criminal law of the United States: Rape; torture; trafficking; incest; domestic violence; sexual assault; abusive sexual contact; prostitution; sexual exploitation; female genital mutilation; being held hostage; peonage; involuntary servitude; slave trade; kidnapping; abduction; unlawful criminal restraint; false imprisonment; blackmail; extortion; manslaughter; murder; felonious assault; witness tampering; obstruction of justice; perjury; or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes. The term “any similar activity” refers to criminal offenses in which the nature and elements of the offenses are substantially similar to the statutorily enumerated list of criminal activities.
(10)*Qualifying family member* means, in the case of an alien victim 21 years of age or older who is eligible for U nonimmigrant status as described in section 101(a)(15)(U) of the Act, 8 U.S.C. 1101(a)(15)(U), the spouse or child(ren) of such alien; and, in the case of an alien victim under the age of 21 who is eligible for U nonimmigrant status as described in section 101(a)(15)(U) of the Act, *qualifying family member* means the spouse, child(ren), parents, or unmarried siblings under the age of 18 of such an alien.
(11)*Territories and Possessions of the United States* means American Samoa, Swains Island, Bajo Nuevo (the Petrel Islands), Baker Island, Howland Island, Jarvis Island, Johnston Atoll, Kingman Reef, Midway Atoll, Navassa Island, Northern Mariana Islands, Palmyra Atoll, Serranilla Bank, and Wake Atoll.
(12)*U nonimmigrant status certification* means Form I-918, Supplement B, “U Nonimmigrant Status Certification,” which confirms that the petitioner has been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution of the qualifying criminal activity of which he or she is a victim.
(13)*U interim relief* refers to the interim benefits that were provided by USCIS to petitioners for U nonimmigrant status, who requested such benefits and who were deemed prima facie eligible for U nonimmigrant status prior to the publication of the implementing regulations.
(14)*Victim of qualifying criminal activity* generally means an alien who has suffered direct and proximate harm as a result of the commission of qualifying criminal activity.
(i)The alien spouse, children under 21 years of age and, if the direct victim is under 21 years of age, parents and unmarried siblings under 18 years of age, will be considered victims of qualifying criminal activity where the direct victim is deceased due to murder or manslaughter, or is incompetent or incapacitated, and therefore unable to provide information concerning the criminal activity or be helpful in the investigation or prosecution of the criminal activity. For purposes of determining eligibility under this definition, USCIS will consider the age of the victim at the time the qualifying criminal activity occurred.
(ii)A petitioner may be considered a victim of witness tampering, obstruction of justice, or perjury, including any attempt, solicitation, or conspiracy to commit one or more of those offenses, if:
(A)The petitioner has been directly and proximately harmed by the perpetrator of the witness tampering, obstruction of justice, or perjury; and
(B)There are reasonable grounds to conclude that the perpetrator committed the witness tampering, obstruction of justice, or perjury offense, at least in principal part, as a means: ( *1* ) To avoid or frustrate efforts to investigate, arrest, prosecute, or otherwise bring to justice the perpetrator for other criminal activity; or ( *2* ) To further the perpetrator's abuse or exploitation of or undue control over the petitioner through manipulation of the legal system.
(iii)A person who is culpable for the qualifying criminal activity being investigated or prosecuted is excluded from being recognized as a victim of qualifying criminal activity.
(b)*Eligibility.* An alien is eligible for U-1 nonimmigrant status if he or she demonstrates all of the following in accordance with paragraph
(c)of this section:
(1)The alien has suffered substantial physical or mental abuse as a result of having been a victim of qualifying criminal activity. Whether abuse is substantial is based on a number of factors, including but not limited to: The nature of the injury inflicted or suffered; the severity of the perpetrator's conduct; the severity of the harm suffered; the duration of the infliction of the harm; and the extent to which there is permanent or serious harm to the appearance, health, or physical or mental soundness of the victim, including aggravation of pre-existing conditions. No single factor is a prerequisite to establish that the abuse suffered was substantial. Also, the existence of one or more of the factors automatically does not create a presumption that the abuse suffered was substantial. A series of acts taken together may be considered to constitute substantial physical or mental abuse even where no single act alone rises to that level;
(2)The alien possesses credible and reliable information establishing that he or she has knowledge of the details concerning the qualifying criminal activity upon which his or her petition is based. The alien must possess specific facts regarding the criminal activity leading a certifying official to determine that the petitioner has, is, or is likely to provide assistance to the investigation or prosecution of the qualifying criminal activity. In the event that the alien has not yet reached 16 years of age on the date on which an act constituting an element of the qualifying criminal activity first occurred, a parent, guardian or next friend of the alien may possess the information regarding a qualifying crime. In addition, if the alien is incapacitated or incompetent, a parent, guardian, or next friend may possess the information regarding the qualifying crime;
(3)The alien has been helpful, is being helpful, or is likely to be helpful to a certifying agency in the investigation or prosecution of the qualifying criminal activity upon which his or her petition is based, and since the initiation of cooperation, has not refused or failed to provide information and assistance reasonably requested. In the event that the alien has not yet reached 16 years of age on the date on which an act constituting an element of the qualifying criminal activity first occurred, a parent, guardian or next friend of the alien may provide the required assistance. In addition, if the petitioner is incapacitated or incompetent and, therefore, unable to be helpful in the investigation or prosecution of the qualifying criminal activity, a parent, guardian, or next friend may provide the required assistance; and
(4)The qualifying criminal activity occurred in the United States (including Indian country and U.S. military installations) or in the territories or possessions of the United States, or violated a U.S. federal law that provides for extraterritorial jurisdiction to prosecute the offense in a U.S. federal court.
(c)*Application procedures for U nonimmigrant status* —(1) *Filing a petition.* USCIS has sole jurisdiction over all petitions for U nonimmigrant status. An alien seeking U-1 nonimmigrant status must submit, by mail, Form I-918, “Petition for U Nonimmigrant Status,” applicable fees (or request for a fee waiver as provided in 8 CFR 103.7(c)), and initial evidence to USCIS in accordance with this paragraph and the instructions to Form I-918. A petitioner who received interim relief is not required to submit initial evidence with Form I-918 if he or she wishes to rely on the law enforcement certification and other evidence that was submitted with the request for interim relief.
(i)*Petitioners in pending immigration proceedings.* An alien who is in removal proceedings under section 240 of the Act, 8 U.S.C. 1229a, or in exclusion or deportation proceedings initiated under former sections 236 or 242 of the Act, 8 U.S.C. 1226 and 1252 (as in effect prior to April 1, 1997), and who would like to apply for U nonimmigrant status must file a Form I-918 directly with USCIS. U.S. Immigration and Customs Enforcement
(ICE)counsel may agree, as a matter of discretion, to file, at the request of the alien petitioner, a joint motion to terminate proceedings without prejudice with the immigration judge or Board of Immigration Appeals, whichever is appropriate, while a petition for U nonimmigrant status is being adjudicated by USCIS.
(ii)*Petitioners with final orders of removal, deportation, or exclusion.* An alien who is the subject of a final order of removal, deportation, or exclusion is not precluded from filing a petition for U-1 nonimmigrant status directly with USCIS. The filing of a petition for U-1 nonimmigrant status has no effect on ICE's authority to execute a final order, although the alien may file a request for a stay of removal pursuant to 8 CFR 241.6(a) and 8 CFR 1241.6(a). If the alien is in detention pending execution of the final order, the time during which a stay is in effect will extend the period of detention (under the standards of 8 CFR 241.4) reasonably necessary to bring about the petitioner's removal.
(2)*Initial evidence.* Form I-918 must include the following initial evidence:
(i)Form I-918, Supplement B, “U Nonimmigrant Status Certification,” signed by a certifying official within the six months immediately preceding the filing of Form I-918. The certification must state that: the person signing the certificate is the head of the certifying agency, or any person(s) in a supervisory role who has been specifically designated by the head of the certifying agency to issue U nonimmigrant status certifications on behalf of that agency, or is a Federal, State, or local judge; the agency is a Federal, State, or local law enforcement agency, or prosecutor, judge or other authority, that has responsibility for the detection, investigation, prosecution, conviction, or sentencing of qualifying criminal activity; the applicant has been a victim of qualifying criminal activity that the certifying official's agency is investigating or prosecuting; the petitioner possesses information concerning the qualifying criminal activity of which he or she has been a victim; the petitioner has been, is being, or is likely to be helpful to an investigation or prosecution of that qualifying criminal activity; and the qualifying criminal activity violated U.S. law, or occurred in the United States, its territories, its possessions, Indian country, or at military installations abroad.
(ii)Any additional evidence that the petitioner wants USCIS to consider to establish that: the petitioner is a victim of qualifying criminal activity; the petitioner has suffered substantial physical or mental abuse as a result of being a victim of qualifying criminal activity; the petitioner (or, in the case of a child under the age of 16 or petitioner who is incompetent or incapacitated, a parent, guardian or next friend of the petitioner) possesses information establishing that he or she has knowledge of the details concerning the qualifying criminal activity of which he or she was a victim and upon which his or her application is based; the petitioner (or, in the case of a child under the age of 16 or petitioner who is incompetent or incapacitated, a parent, guardian or next friend of the petitioner) has been helpful, is being helpful, or is likely to be helpful to a Federal, State, or local law enforcement agency, prosecutor, or authority, or Federal or State judge, investigating or prosecuting the criminal activity of which the petitioner is a victim; or the criminal activity is qualifying and occurred in the United States (including Indian country and U.S. military installations) or in the territories or possessions of the United States, or violates a U.S. federal law that provides for extraterritorial jurisdiction to prosecute the offense in a U.S. federal court;
(iii)A signed statement by the petitioner describing the facts of the victimization. The statement also may include information supporting any of the eligibility requirements set out in paragraph
(b)of this section. When the petitioner is under the age of 16, incapacitated, or incompetent, a parent, guardian, or next friend may submit a statement on behalf of the petitioner; and
(iv)If the petitioner is inadmissible, Form I-192, “Application for Advance Permission to Enter as Non-Immigrant,” in accordance with 8 CFR 212.17.
(3)*Biometric capture.* All petitioners for U-1 nonimmigrant status must submit to biometric capture and pay a biometric capture fee. USCIS will notify the petitioner of the proper time and location to appear for biometric capture after the petitioner files Form I-918.
(4)*Evidentiary standards and burden of proof.* The burden shall be on the petitioner to demonstrate eligibility for U-1 nonimmigrant status. The petitioner may submit any credible evidence relating to his or her Form I-918 for consideration by USCIS. USCIS shall conduct a de novo review of all evidence submitted in connection with Form I-918 and may investigate any aspect of the petition. Evidence previously submitted for this or other immigration benefit or relief may be used by USCIS in evaluating the eligibility of a petitioner for U-1 nonimmigrant status. However, USCIS will not be bound by its previous factual determinations. USCIS will determine, in its sole discretion, the evidentiary value of previously or concurrently submitted evidence, including Form I-918, Supplement B, “U Nonimmigrant Status Certification.”
(5)*Decision.* After completing its de novo review of the petition and evidence, USCIS will issue a written decision approving or denying Form I-918 and notify the petitioner of this decision. USCIS will include in a decision approving Form I-918 a list of nongovernmental organizations to which the petitioner can refer regarding his or her options while in the United States and available resources.
(i)*Approval of Form I-918, generally.* If USCIS determines that the petitioner has met the requirements for U-1 nonimmigrant status, USCIS will approve Form I-918. For a petitioner who is within the United States, USCIS also will concurrently grant U-1 nonimmigrant status, subject to the annual limitation as provided in paragraph
(d)of this section. For a petitioner who is subject to an order of exclusion, deportation, or removal issued by the Secretary, the order will be deemed canceled by operation of law as of the date of USCIS' approval of Form I-918. A petitioner who is subject to an order of exclusion, deportation, or removal issued by an immigration judge or the Board may seek cancellation of such order by filing, with the immigration judge or the Board, a motion to reopen and terminate removal proceedings. ICE counsel may agree, as a matter of discretion, to join such a motion to overcome any applicable time and numerical limitations of 8 CFR 1003.2 and 1003.23.
(A)*Notice of Approval of Form I-918 for U-1 petitioners within the United States.* After USCIS approves Form I-918 for an alien who filed his or her petition from within the United States, USCIS will notify the alien of such approval on Form I-797, “Notice of Action,” and include Form I-94, “Arrival-Departure Record,” indicating U-1 nonimmigrant status.
(B)*Notice of Approval of Form I-918 for U-1 petitioners outside the United States.* After USCIS approves Form I-918 for an alien who filed his or her petition from outside the United States, USCIS will notify the alien of such approval on Form I-797, “Notice of Action,” and will forward notice to the Department of State for delivery to the U.S. Embassy or Consulate having jurisdiction over the area in which the alien is located, or, for a visa exempt alien, to the appropriate port of entry.
(ii)*Denial of Form I-918.* USCIS will provide written notification to the petitioner of the reasons for the denial. The petitioner may appeal a denial of Form I-918 to the Administrative Appeals Office
(AAO)in accordance with the provisions of 8 CFR 103.3. For petitioners who appeal a denial of their Form I-918 to the AAO, the denial will not be deemed administratively final until the AAO issues a decision affirming the denial. Upon USCIS' final denial of a petition for a petitioner who was in removal proceedings that were terminated pursuant to 8 CFR 214.14(c)(1)(i), DHS may file a new Notice to Appear (see section 239 of the Act, 8 U.S.C. 1229) to place the individual in proceedings again. For petitioners who are subject to an order of removal, deportation, or exclusion and whose order has been stayed, USCIS' denial of the petition will result in the stay being lifted automatically as of the date the denial becomes administratively final.
(6)*Petitioners granted U interim relief.* Petitioners who were granted U interim relief as defined in paragraph (a)(13) of this section and whose Form I-918 is approved will be accorded U-1 nonimmigrant status as of the date that a request for U interim relief was initially approved.
(7)*Employment authorization.* An alien granted U-1 nonimmigrant status is employment authorized incident to status. USCIS automatically will issue an initial Employment Authorization Document
(EAD)to such aliens who are in the United States. For principal aliens who applied from outside the United States, the initial EAD will not be issued until the petitioner has been admitted to the United States in U nonimmigrant status. After admission, the alien may receive an initial EAD, upon request and submission of a copy of his or her Form I-94, “Arrival-Departure Record,” to the USCIS office having jurisdiction over the adjudication of petitions for U nonimmigrant status. No additional fee is required. An alien granted U-1 nonimmigrant status seeking to renew his or her expiring EAD or replace an EAD that was lost, stolen, or destroyed, must file Form I-765 in accordance with the instructions to the form.
(d)*Annual cap on U-1 nonimmigrant status* —(1) *General.* In accordance with section 214(p)(2) of the Act, 8 U.S.C. 1184(p)(2), the total number of aliens who may be issued a U-1 nonimmigrant visa or granted U-1 nonimmigrant status may not exceed 10,000 in any fiscal year.
(2)*Waiting list.* All eligible petitioners who, due solely to the cap, are not granted U-1 nonimmigrant status must be placed on a waiting list and receive written notice of such placement. Priority on the waiting list will be determined by the date the petition was filed with the oldest petitions receiving the highest priority. In the next fiscal year, USCIS will issue a number to each petition on the waiting list, in the order of highest priority, providing the petitioner remains admissible and eligible for U nonimmigrant status. After U-1 nonimmigrant status has been issued to qualifying petitioners on the waiting list, any remaining U-1 nonimmigrant numbers for that fiscal year will be issued to new qualifying petitioners in the order that the petitions were properly filed. USCIS will grant deferred action or parole to U-1 petitioners and qualifying family members while the U-1 petitioners are on the waiting list. USCIS, in its discretion, may authorize employment for such petitioners and qualifying family members.
(3)*Unlawful presence.* During the time a petitioner for U nonimmigrant status who was granted deferred action or parole is on the waiting list, no accrual of unlawful presence under section 212(a)(9)(B) of the INA, 8 U.S.C. 1182(a)(9)(B), will result. However, a petitioner may be removed from the waiting list, and the deferred action or parole may be terminated at the discretion of USCIS.
(e)*Restrictions on use and disclosure of information relating to petitioners for U nonimmigrant classification* —(1) *General.* The use or disclosure (other than to a sworn officer or employee of DHS, the Department of Justice, the Department of State, or a bureau or agency of any of those departments, for legitimate department, bureau, or agency purposes) of any information relating to the beneficiary of a pending or approved petition for U nonimmigrant status is prohibited unless the disclosure is made:
(i)By the Secretary of Homeland Security, at his discretion, in the same manner and circumstances as census information may be disclosed by the Secretary of Commerce under 13 U.S.C. 8;
(ii)By the Secretary of Homeland Security, at his discretion, to law enforcement officials to be used solely for a legitimate law enforcement purpose;
(iii)In conjunction with judicial review of a determination in a manner that protects the confidentiality of such information;
(iv)After adult petitioners for U nonimmigrant status or U nonimmigrant status holders have provided written consent to waive the restrictions prohibiting the release of information;
(v)To Federal, State, and local public and private agencies providing benefits, to be used solely in making determinations of eligibility for benefits pursuant to 8 U.S.C. 1641(c);
(vi)After a petition for U nonimmigrant status has been denied in a final decision;
(vii)To the chairmen and ranking members of the Committee on the Judiciary of the Senate or the Committee on the Judiciary of the House of Representatives, for the exercise of congressional oversight authority, provided the disclosure relates to information about a closed case and is made in a manner that protects the confidentiality of the information and omits personally identifying information (including locational information about individuals);
(viii)With prior written consent from the petitioner or derivative family members, to nonprofit, nongovernmental victims' service providers for the sole purpose of assisting the victim in obtaining victim services from programs with expertise working with immigrant victims; or
(ix)To federal prosecutors to comply with constitutional obligations to provide statements by witnesses and certain other documents to defendants in pending federal criminal proceedings.
(2)Agencies receiving information under this section, whether governmental or non-governmental, are bound by the confidentiality provisions and other restrictions set out in 8 U.S.C. 1367.
(3)Officials of the Department of Homeland Security are prohibited from making adverse determinations of admissibility or deportability based on information obtained solely from the perpetrator of substantial physical or mental abuse and the criminal activity.
(f)*Admission of qualifying family members* —(1) *Eligibility.* An alien who has petitioned for or has been granted U-1 nonimmigrant status ( *i.e.* , principal alien) may petition for the admission of a qualifying family member in a U-2 (spouse), U-3 (child), U-4 (parent of a U-1 alien who is a child under 21 years of age), or U-5 (unmarried sibling under the age of 18) derivative status, if accompanying or following to join such principal alien. A qualifying family member who committed the qualifying criminal activity in a family violence or trafficking context which established the principal alien's eligibility for U nonimmigrant status shall not be granted U-2, U-3, U-4, or U-5 nonimmigrant status. To be eligible for U-2, U-3, U-4, or U-5 nonimmigrant status, it must be demonstrated that:
(i)The alien for whom U-2, U-3, U-4, or U-5 status is being sought is a qualifying family member, as defined in paragraph (a)(10) of this section; and
(ii)The qualifying family member is admissible to the United States.
(2)*Filing procedures.* A petitioner for U-1 nonimmigrant status may apply for derivative U nonimmigrant status on behalf of qualifying family members by submitting a Form I-918, Supplement A, “Petition for Qualifying Family Member of U-1 Recipient,” for each family member either at the same time the petition for U-1 nonimmigrant status is filed, or at a later date. An alien who has been granted U-1 nonimmigrant status may apply for derivative U nonimmigrant status on behalf of qualifying family members by submitting Form I-918, Supplement A for each family member. All Forms I-918, Supplement A must be accompanied by initial evidence and the required fees specified in the instructions to the form. Forms I-918, Supplement A that are not filed at the same time as Form I-918 but are filed at a later date must be accompanied by a copy of the Form I-918 that was filed by the principal petitioner or a copy of his or her Form I-94 demonstrating proof of U-1 nonimmigrant status, as applicable.
(i)Qualifying family members in pending immigration proceedings. The principal alien of a qualifying family member who is in removal proceedings under section 240 of the Act, 8 U.S.C. 1229a, or in exclusion or deportation proceedings initiated under former sections 236 or 242 of the Act, 8 U.S.C. 1226 and 1252 (as in effect prior to April 1, 1997), and who is seeking U nonimmigrant status, must file a Form I-918, Supplement A directly with USCIS. ICE counsel may agree to file, at the request of the qualifying family member, a joint motion to terminate proceedings without prejudice with the immigration judge or Board of Immigration Appeals, whichever is appropriate, while the petition for U nonimmigrant status is being adjudicated by USCIS.
(ii)Qualifying family members with final orders of removal, deportation, or exclusion. An alien who is the subject of a final order of removal, deportation, or exclusion is not precluded from filing a petition for U-2, U-3, U-4, or U-5 nonimmigrant status directly with USCIS. The filing of a petition for U-2, U-3, U-4, or U-5 nonimmigrant status has no effect on ICE's authority to execute a final order, although the alien may file a request for a stay of removal pursuant to 8 CFR 241.6(a) and 8 CFR 1241.6(a). If the alien is in detention pending execution of the final order, the time during which a stay is in effect will extend the period of detention (under the standards of 8 CFR 241.4) reasonably necessary to bring about the alien's removal.
(3)*Initial evidence.* Form I-918, Supplement A, must include the following initial evidence:
(i)Evidence demonstrating the relationship of a qualifying family member, as provided in paragraph (f)(4) of this section;
(ii)If the qualifying family member is inadmissible, Form I-192, “Application for Advance Permission to Enter as a Non-Immigrant,” in accordance with 8 CFR 212.17.
(4)*Relationship.* Except as set forth in paragraphs (f)(4)(i) and
(ii)of this section, the relationship between the U-1 principal alien and the qualifying family member must exist at the time Form I-918 was filed, and the relationship must continue to exist at the time Form I-918, Supplement A is adjudicated, and at the time of the qualifying family member's subsequent admission to the United States.
(i)If the U-1 principal alien proves that he or she has become the parent of a child after Form I-918 was filed, the child shall be eligible to accompany or follow to join the U-1 principal alien.
(ii)If the principal alien was under 21 years of age at the time he or she filed Form I-918, and filed Form I-918, Supplement A for an unmarried sibling under the age of 18, USCIS will continue to consider such sibling as a qualifying family member for purposes of U nonimmigrant status even if the principal alien is no longer under 21 years of age at the time of adjudication, and even if the sibling is no longer under 18 years of age at the time of adjudication.
(5)*Biometric capture and evidentiary standards.* The provisions for biometric capture and evidentiary standards in paragraphs (c)(3) and (c)(4) of this section also are applicable to petitions for qualifying family members.
(6)*Decision.* USCIS will issue a written decision approving or denying Form I-918, Supplement A and send notice of this decision to the U-1 principal petitioner. USCIS will include in a decision approving Form I-918 a list of nongovernmental organizations to which the qualifying family member can refer regarding his or her options while in the United States and available resources. For a qualifying family member who is subject to an order of exclusion, deportation, or removal issued by the Secretary, the order will be deemed canceled by operation of law as of the date of USCIS' approval of Form I-918, Supplement A. A qualifying family member who is subject to an order of exclusion, deportation, or removal issued by an immigration judge or the Board may seek cancellation of such order by filing, with the immigration judge or the Board, a motion to reopen and terminate removal proceedings. ICE counsel may agree, as a matter of discretion, to join such a motion to overcome any applicable time and numerical limitations of 8 CFR 1003.2 and 1003.23.
(i)*Approvals for qualifying family members within the United States.* When USCIS approves a Form I-918, Supplement A for a qualifying family member who is within the United States, it will concurrently grant that alien U-2, U-3, U-4, or U-5 nonimmigrant status. USCIS will notify the principal of such approval on Form I-797, “Notice of Action,” with Form I-94, “Arrival-Departure Record,” indicating U-2, U-3, U-4, or U-5 nonimmigrant status. Aliens who were previously granted U interim relief as defined in paragraph (a)(13) of this section will be accorded U nonimmigrant status as of the date that the request for U interim relief was approved. Aliens who are granted U-2, U-3, U-4, or U-5 nonimmigrant status are not subject to an annual numerical limit. USCIS may not approve Form I-918, Supplement A unless it has approved the principal alien's Form I-918.
(ii)*Approvals for qualifying family members outside the United States.* When USCIS approves Form I-918, Supplement A for a qualifying family member who is outside the United States, USCIS will notify the principal alien of such approval on Form I-797. USCIS will forward the approved Form I-918, Supplement A to the Department of State for delivery to the U.S. Embassy or Consulate having jurisdiction over the area in which the qualifying family member is located, or, for a visa exempt alien, to the appropriate port of entry.
(iii)*Denial of the Form I-918, Supplement A.* In accordance with 8 CFR 103.3(a)(1), USCIS will provide written notification of the reasons for the denial. The principal alien may appeal the denial of Form I-918, Supplement A to the Administrative Appeals Office in accordance with the provisions of 8 CFR 103.3. Upon USCIS' final denial of Form I-918, Supplement A for a qualifying family member who was in removal proceedings that were terminated pursuant to 8 CFR 214.14(f)(2)(i), DHS may file a new Notice to Appear (see section 239 of the INA, 8 U.S.C. 1229) to place the individual in proceedings again. For qualifying family members who are subject to an order of removal, deportation, or exclusion and whose order has been stayed, USCIS' denial of the petition will result in the stay being lifted automatically as of the date the denial becomes administratively final.
(7)*Employment authorization.* An alien granted U-2, U-3, U-4, or U-5 nonimmigrant status is employment authorized incident to status. To obtain an Employment Authorization Document (EAD), such alien must file Form I-765, “Application for Employment Authorization,” with the appropriate fee or a request for a fee waiver, in accordance with the instructions to the form. For qualifying family members within the United States, the Form I-765 may be filed concurrently with Form I-918, Supplement A, or at any time thereafter. For qualifying family members who are outside the United States, Form I-765 only may be filed after admission to the United States in U nonimmigrant status.
(g)*Duration of U nonimmigrant status* —(1) *In general.* U nonimmigrant status may be approved for a period not to exceed 4 years in the aggregate. A qualifying family member granted U-2, U-3, U-4, and U-5 nonimmigrant status will be approved for an initial period that does not exceed the expiration date of the initial period approved for the principal alien.
(2)*Extension of status.*
(i)Where a U nonimmigrant's approved period of stay on Form I-94 is less than 4 years, he or she may file Form I-539, “Application to Extend/Change Nonimmigrant Status,” to request an extension of U nonimmigrant status for an aggregate period not to exceed 4 years. USCIS may approve an extension of status for a qualifying family member beyond the date when the U-1 nonimmigrant's status expires when the qualifying family member is unable to enter the United States timely due to delays in consular processing, and an extension of status is necessary to ensure that the qualifying family member is able to attain at least 3 years in nonimmigrant status for purposes of adjusting status under section 245(m) of the Act, 8 U.S.C. 1255.
(ii)Extensions of U nonimmigrant status beyond the 4-year period are available upon attestation by the certifying official that the alien's presence in the United States continues to be necessary to assist in the investigation or prosecution of qualifying criminal activity. In order to obtain an extension of U nonimmigrant status based upon such an attestation, the alien must file Form I-539 and a newly executed Form I-918, Supplement B in accordance with the instructions to Form I-539.
(h)*Revocation of approved petitions for U nonimmigrant status* —(1) *Automatic revocation.* An approved petition for U-1 nonimmigrant status will be revoked automatically if, pursuant to 8 CFR 214.14(d)(1), the beneficiary of the approved petition notifies the USCIS office that approved the petition that he or she will not apply for admission to the United States and, therefore, the petition will not be used.
(2)*Revocation on notice.*
(i)USCIS may revoke an approved petition for U nonimmigrant status following a notice of intent to revoke. USCIS may revoke an approved petition for U nonimmigrant status based on one or more of the following reasons:
(A)The certifying official withdraws the U nonimmigrant status certification referred to in 8 CFR 214.14(c)(2)(i) or disavows the contents in writing;
(B)Approval of the petition was in error;
(C)Where there was fraud in the petition;
(D)In the case of a U-2, U-3, U-4, or U-5 nonimmigrant, the relationship to the principal petitioner has terminated; or
(E)In the case of a U-2, U-3, U-4, or U-5 nonimmigrant, the principal U-1's nonimmigrant status is revoked.
(ii)The notice of intent to revoke must be in writing and contain a statement of the grounds for the revocation and the time period allowed for the U nonimmigrant's rebuttal. The alien may submit evidence in rebuttal within 30 days of the date of the notice. USCIS shall consider all relevant evidence presented in deciding whether to revoke the approved petition for U nonimmigrant status. The determination of what is relevant evidence and the weight to be given to that evidence will be within the sole discretion of USCIS. If USCIS revokes approval of a petition and thereby terminates U nonimmigrant status, USCIS will provide the alien with a written notice of revocation that explains the specific reasons for the revocation.
(3)*Appeal of a revocation of approval.* A revocation on notice may be appealed to the Administrative Appeals Office in accordance with 8 CFR 103.3 within 30 days after the date of the notice of revocation. Automatic revocations may not be appealed.
(4)*Effects of revocation of approval.* Revocation of a principal alien's approved Form I-918 will result in termination of status for the principal alien, as well as in the denial of any pending Form I-918, Supplement A filed for qualifying family members seeking U-2, U-3, U-4, or U-5 nonimmigrant status. Revocation of a qualifying family member's approved Form I-918, Supplement A will result in termination of status for the qualifying family member. Revocation of an approved Form I-918 or Form I-918, Supplement A also revokes any waiver of inadmissibility granted in conjunction with such petition.
(i)*Removal proceedings.* Nothing in this section prohibits USCIS from instituting removal proceedings under section 240 of the Act, 8 U.S.C. 1229(a), for conduct committed after admission, for conduct or a condition that was not disclosed to USCIS prior to the granting of U nonimmigrant status, for misrepresentations of material facts in Form I-918 or Form I-918, Supplement A and supporting documentation, or after revocation of U nonimmigrant status. PART 248—CHANGE OF NONIMMIGRANT CLASSIFICATION 9. The authority citation for section 248 continues to read as follows: Authority: 8 U.S.C. 1101, 1103, 1184, 1258; 8 CFR part 2. 10. Section 248.1 is amended by revising paragraph
(a)to read as follows: § 248.1 Eligibility.
(a)*General.* Except for those classes enumerated in § 248.2, any alien lawfully admitted to the United States as a nonimmigrant, including an alien who acquired such status pursuant to section 247 of the Act, 8 U.S.C. 1257, who is continuing to maintain his or her nonimmigrant status, may apply to have his or her nonimmigrant classification changed to any nonimmigrant classification other than that of a spouse or fianc(e), or the child of such alien, under section 101(a)(15)(K) of the Act, 8 U.S.C. 1101(a)(15)(K), or as an alien in transit under section 101(a)(15)(C) of the Act, 8 U.S.C. 1101(a)(15)(C). An alien defined by section 101(a)(15)(V), or 101(a)(15)(U) of the Act, 8 U.S.C. 1101(a)(15)(V) or 8 U.S.C. 1101(a)(15)(U), may be accorded nonimmigrant status in the United States by following the procedures set forth respectively in § 214.15(f) or § 214.14 of this chapter. 11. Section 248.2 is amended by: a. Revising the introductory text; b. Redesignating the revised introductory text through paragraph
(f)as paragraphs
(a)introductory text through (a)(6); and by c. Adding a new paragraph
(b)to read as follows: § 248.2 Ineligibile Classes.
(a)Except as described in paragraph
(b)of this section, the following categories of aliens are not eligible to change their nonimmigrant status under section 248 of the Act, 8 U.S.C. 1258:
(b)The prohibition against a change of nonimmigrant status for the categories of aliens described in paragraphs (a)(1) through
(6)of this section is inapplicable to aliens applying for a change of nonimmigrant status to that of a nonimmigrant under section 101(a)(15)(U) of the Act, 8 U.S.C. 1101(a)(15)(U). PART 274a—CONTROL OF EMPLOYMENT OF ALIENS 12. The authority citation for section 274a continues to read as follows: Authority: 8 U.S.C. 1101, 1103, 1324a; 8 CFR part 2. 13. Section 274a.12 is amended by: a. Revising paragraph
(a)introductory text; b. Amending paragraph (a)(14) by removing the word “or” at the end of the paragraph; c. Removing the period at the end of paragraph (a)(16) and inserting a semicolon in its place; d. Adding and reserving paragraphs (a)(17) and (18); and by e. Adding new paragraphs (a)(19) and (20). The revision and additions read as follows: § 274a.12 Classes of aliens authorized to accept employment.
(a)*Aliens authorized employment incident to status.* Pursuant to the statutory or regulatory reference cited, the following classes of aliens are authorized to be employed in the United States without restrictions as to location or type of employment as a condition of their admission or subsequent change to one of the indicated classes. Any alien who is within a class of aliens described in paragraphs (a)(3), (a)(4), (a)(6)-(a)(8), (a)(10)-(a)(15), or (a)(20) of this section, and who seeks to be employed in the United States, must apply to U.S. Citizenship and Immigration Services (USCIS) for a document evidencing such employment authorization. USCIS may, in its discretion, determine the validity period assigned to any document issued evidencing an alien's authorization to work in the United States.
(17)[Reserved]
(18)[Reserved]
(19)Any alien in U-1 nonimmigrant status, pursuant to 8 CFR 214.14, for the period of time in that status, as evidenced by an employment authorization document issued by USCIS to the alien.
(20)Any alien in U-2, U-3, U-4, or U-5 nonimmigrant status, pursuant to 8 CFR 214.14, for the period of time in that status, as evidenced by an employment authorization document issued by USCIS to the alien. 14. Section 274a.13 is amended by revising paragraph
(a)introductory text to read as follows: § 274a.13 Application for employment authorization.
(a)*General.* Aliens authorized to be employed under section 274a.12(a)(3), (a)(4), (a)(6)-(8), (a)(10)-(15), and (a)(20) must file an Application for Employment Authorization (Form I-765) in order to obtain documentation evidencing this fact. PART 299—IMMIGRATION FORMS 15. The authority citation for part 299 continues to read as follows: Authority: 8 U.S.C. 1101 and note, 1103; 8 CFR part 2. 16. Section 299.1 is amended in the table by adding the entries for Forms “I-918,” “I-918 Supplement A,” and “I-918 Supplement B” in the proper alpha/numeric sequence. § 299.1 Prescribed forms. Form No. Edition date Title * * * * * * * I-918 8/15/07 Petition for U Nonimmigrant Status. I-918 Supplement A 8/15/07 Petition for Qualifying Family Member of U-1 Recipient. I-918 Supplement B 8/15/07 U Nonimmigrant Status Certification. * * * * * * * 17. Section 299.5 is amended in the table by adding the entries for Forms “I-918,” “I-918 Supplement A,” and “I-918 Supplement B” in the proper alpha/numeric sequence. § 299.5 Display of control numbers. Form No. Form title Currently assigned OMB control No. * * * * * * * I-918 Petition for U Nonimmigrant Status 1615-0104 I-918 Supplement A Petition for Qualifying Family Member of U-1 Recipient 1615-0104 I-918 Supplement B U Nonimmigrant Status Certification 1615-0104 * * * * * * * Dated: September 4, 2007. Michael Chertoff, Secretary. [FR Doc. E7-17807 Filed 9-14-07; 8:45 am] BILLING CODE 4410-10-P 72 179 Monday, September 17, 2007 Notices Part V Department of Transportation Federal Aviation Administration Proposed Advisory Circular No. 120-42B, Extended Operations (ETOPS) and Polar Operations; Notice Proposed Advisory Circular No. 135-42, Extended Operations (ETOPS) and Operations in the North Polar Area; Notice DEPARTMENT OF TRANSPORTATION Federal Aviation Administration [Docket Number FAA-2002-6717] Proposed Advisory Circular No. 120-42B, Extended Operations (ETOPS) and Polar Operations AGENCY: Federal Aviation Administration, DOT. ACTION: Notice of availability of a proposed advisory circular and request for comments. SUMMARY: This notice announces the availability of and requests comments on a proposed Advisory Circular (AC): AC No. 120-42B, Extended Operations (ETOPS) and Polar Operations. Also in this **Federal Register** , the FAA publishes draft AC No. 135-42, Extended Operations (ETOPS) and Operations in the North Polar Area, for public comment. DATES: Comments must be received on or before October 17, 2007. ADDRESSES: Send all comments on the proposed AC to Docket Number FAA-2002-6717, using any of the following methods: • *DOT Docket Web site:* Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • *Government-wide rulemaking Web site:* Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • *Mail:* Send comments to the Docket Management Facility; U.S. Department of Transportation, 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12-140, Washington, DC 20590. • *Fax:* Fax comments to the Docket Management Facility at 202-493-2251. • *Hand Delivery:* Bring comments to the Docket Management Facility in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Jim Ryan, Air Transportation Division (AFS-220), Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone:
(202)267-7493, e-mail *Jim.Ryan@faa.gov.* SUPPLEMENTARY INFORMATION Authority: 49 U.S.C. 106(g), 40113, 44701, 44702, 44703. Comments Invited Interested parties are invited to submit comments on the proposed AC. Commenters must identify AC No. 120-42B and submit comments to the address specified under ADDRESSES. All communications received on or before the closing date for comments will be considered by the FAA before issuing the final AC. An electronic copy of the proposed AC, which are published in full here, may be obtained by accessing the FAA's web page at— *http://www.faa.gov/regulations_policies/rulemaking/recently_published/.* The Extended Operations (ETOPS) final rule was published in the **Federal Register** on January 16, 2007. This final rule applies to air carrier (part 121), commuter, and on-demand (part 135) turbine powered multi-engine airplanes used in extended-range operations. All-cargo operations in airplanes with more than two engines were exempted from most of the rule. It established regulations governing the design, operation and maintenance of certain airplanes operated on flights that fly long distances from an adequate airport. This advisory circular provides further guidance for these extended operations to those conducting operations under 14 CFR part 121. It also further clarifies the rule's requirements for Polar operations. Issued in Washington, DC on August 27, 2007. James J. Ballough, Director, Flight Standards Service. Draft Advisory Circular 120-42B, Extended Operations (ETOPS) and Polar Operations Contents Paragraph Chapter 1. General 100. Applicability 101. Cancellations 102. Related Regulations Chapter 2. Background on ETOPS 200. ETOPS Regulatory Requirements 201. Evolution of ETOPS 202. ETOPS Applicability to All Passenger-Carrying Airplanes Flown in Long-Range Operations 203. “Extended Operations” 204. Preclude and Protect 205. ETOPS Areas of Operation 206. ETOPS Alternate Requirements 207. ETOPS In-Service Experience Requirements 208. Operational Reliability and Systems Suitability Requirements Chapter 3. Requirements for ETOPS Authorization 300. ETOPS Requirements 301. Maintenance Requirements for Two-Engine ETOPS Authorization 302. ETOPS Maintenance Training Requirements 303. ETOPS Flight Operations Requirements 304. Flight Operations Training Requirements Chapter 4. Applications To Conduct ETOPS 400. ETOPS Qualifications 401. Application for ETOPS Authorization 402. ETOPS Authorities 403. ETOPS Authorization Requirements 404. Validation Flight(s) 405. Required Demonstration on a Validation Flight Chapter 5. FAA ETOPS Approval 500. Final ETOPS Operating Authority 501. ETOPS OpSpecs 502. Changes to Approved ETOPS Operations, Maintenance and Training Procedures 503. Processes after Receiving ETOPS Authority Chapter 6. Polar Operations 600. Background 601. Definition 602. Applicability 603. Polar Requirements 604. Validation before Approval 605. FAA Polar Area Approval Appendix 1. Definitions Appendix 2. ETOPS Approvals Appendix 3. ETOPS Approval Methods Chapter 1. General *100. Applicability.* This AC concerns those certificate holders applying for approval to conduct ETOPS under § 121.161, as well as those certificate holders applying for approval to conduct flights where a portion of which traverse either the North or South Polar Areas, as defined in part 121, § 121.7. This AC also provides guidance in resolving operational issues to certificate holders currently conducting such operations. *101. Cancellations.* The following AC's and policy letters are cancelled: • AC 120-42A, Extended Range Operation with Two-Engine Airplanes, dated December 30, 1988; • ETOPS Policy Letter
(EPL)95-1, 138-Minute ETOPS Operational Approval Criteria, dated December 19, 1994; • EPL 20-1, 207-Minute ETOPS Operational Approval Criteria, dated March 21, 2000; and • FAA Policy Letter, Guidance for Polar Operations, dated March 5, 2001. *102. Related Regulations.* 14 CFR part 21, § 21.4; part 25, § 25.1535; part 121, §§ 121.7, 121.97, 121.99, 121.106, 121.135, 121.161, 121.162, 121.191, 121.197, 121.374, 121.410, 121.415, 121.565, 121.624, 121.625, 121.631, 121.633, 121.646, 121.687, 121.689, 121.703, 121.704, and 121.705; and part 121, appendix P ( *http://www.gpoaccess.gov/ecfr* ). Chapter 2. Background on ETOPS *200. ETOPS Regulatory Requirements.* a. All two-engine airplanes and three- and four-engine passenger-carrying airplanes operated under part 121 are required to comply with § 121.161. This regulation imposes special requirements for extended operations (ETOPS) for these airplanes. These operations are defined as:
(1)Two-Engine Airplanes. These are flights whose planned routing contains a point farther than 60 minutes flying time from an adequate airport at an approved one-engine-inoperative cruise speed in still air.
(2)Passenger-Carrying Airplanes with More Than Two Engines. These are flights whose planned routing contains a point farther than 180 minutes flying time from an adequate airport at an approved one-engine-inoperative cruise speed in still air. b. To conduct ETOPS, the specified airplane-engine combination must be certificated to the airworthiness standards of transport-category airplanes and be approved for ETOPS. (Airplane certification guidance for ETOPS can be found in § 121.162 and § 25.1535, as well as AC 25.1535-1. As with all other operations, a certificate holder requesting any route approval must first show that it is able to satisfactorily conduct operations between each required airport as defined for that route or route segment, and any required en route alternate airport. Certificate holders must show that the facilities and services specified in §§ 121.97 through 121.107 (domestic and flag operations) and §§ 121.113 through 121.127 (supplemental and commercial operations) are available and adequate for the proposed operation. In addition, the certificate holder must be approved for ETOPS under part 121. This AC provides the additional guidance for certificate holder approval for ETOPS. *201. Evolution of ETOPS.* a. Section 121.161 has an extensive historical basis, which began as early as 1936. Before obtaining approval for operation in 1936, an applicant operating an airplane with two piston engines was required to show that intermediate fields available for safe takeoffs and landings were located at least at 100-mile intervals along the proposed route. Previously, the rule imposed restrictions only on two-engine airplanes based on the lack of satisfactory engine reliability in the operation. In response to improvements in engine design and reliability, and responding to the needs of industry, the FAA has provided guidance for deviations from the rule that have allowed two-engine operations to expand incrementally beyond the initial 60-minute restriction. Currently, engine reliability has improved to a level where the safety of the operations is not impacted so much by the number of engines, but by other factors that affect operations of all airplanes whose routings take them great distances from adequate airports. Throughout the evolution of the current § 121.161, the following factors have remained constant:
(1)The rule has always applied to all areas of operation, and has not been limited to overwater operations.
(2)Any additional restrictions imposed or, alternatively, any deviations granted to operate in excess of the basic requirements, were based on a finding by the Administrator that adequate safety would be provided in the proposed operation and current levels of safety would be maintained when all factors were considered. This finding was never limited to engine reliability alone.
(3)The airports used in meeting the provisions of the rule must be adequate for the airplane used (that is, available for safe landings and takeoff with the weights authorized).
(4)Adequate levels of safety within the operation are to be maintained. Operations over increasingly remote areas and the possibility of increased diversion lengths have a potentially negative impact on the safety of the diversion, and thus the operation as a whole. Additional regulatory requirements are intended to ensure that this potential increase in risk is mitigated and that adequate levels of safety within operations are retained.
(5)When considering the impact of operating at greater distances from airports, the certificate holder must show that the operation can be conducted at a level of reliability that maintains an acceptable level of risk. b. In June of 1985, responding to the industry's desire to take advantage of the increased reliability and capabilities of two-engine airplanes, the FAA issued AC 120-42. This AC provided guidance on one means of obtaining deviation authority from § 121.161 to allow two engine airplanes to operate on routes up to 120 minutes from an adequate airport after demonstration of specific levels of in-service experience and systems reliability. The FAA amended this AC in 1988 (AC 120-42A) to permit two-engine airplanes to operate up to 180 minutes from an adequate airport. These ACs introduced the term “ETOPS” for those specific extended operations and addressed airplane and engine design aspects, maintenance programs, and operations. Both of these ACs encompassed the following precepts:
(1)Reliance on a two-step approval that included type design of the airplane-engine combination and approval of the certificate holder's operation.
(2)Risk, as measured by diversion length, is mitigated by application of regulations and guidance reflecting current best practices that address the type certification of the ETOPS airplane and its systems as well as the operational environment of such operations.
(3)ETOPS can be managed successfully, and the level of safety can be maintained, by up-to-date regulations and guidance that articulate quantifiable standards of reliability and experience. c. The original guidance for extended-range operations with two-engine airplanes in AC 120-42 allowed an increase of up to 15 percent to the maximum diversion time of 120 minutes. This provision was eliminated with the release of the guidance in AC 120-42A, providing for operations up to 180 minutes. Recognizing a need for ETOPS diversion authority between 120 and 180 minutes, the FAA reinstated the 138-minute provision by issuing EPL 95 1 in 1994. In March of 2000, at the request of the industry, the FAA issued ETOPS Policy Letter
(EPL)20-1, 207 Minute ETOPS Operation Approval Criteria. This document provided a similar 15 percent increase in the 180-minute maximum diversion time and gave limited relief to ETOPS certificate holders in the specific case of North Pacific Operations. d. Since the advent of the original § 121.161, extended two-engine airplane operations have been governed by this rule, and the process of evolving and progressive guidance has reflected the successful and ever-increasing experience of the industry. As capable as this body of guidance has been in the past, it became increasingly clear that a need existed to codify all the disparate documents into a single body of rules, and to update the existing rules to reflect all the industry improvements such progress has used as its basis. Consequently § 121.161 was revised to expand two-engine operational authority under successful ETOPS processes and require certain operations of all passenger-carrying part 121 airplanes to adopt ETOPS requirements. This AC reflects current § 121.161 regulatory requirements. *202. ETOPS Applicability to All Passenger-Carrying Airplanes Flown in Long-Range Operations.* a. AC 120-42 in 1985, and AC 120-42A in 1988, recognized the increasing reliability of turbojet engines and helped to establish type design and operational practices for safe and reliable long-range operations with two-engine airplanes. As the technology and reliability of two-engine airplanes continued to improve, due in large measure to the requirements of these documents, such operations became compatible with those long-range operations typically associated with three- and four-engine airplanes. At the same time this technology brought two-engine airplanes to the arena of long-range operations, the infrastructure to support such operations was changing. Political and funding priorities forced the closure or reduction in basic services of a number of airports, military and civilian, in remote areas that historically had been used as diversion airports for routes over oceanic and/or desolate land areas. The increasing use of polar flights, while creating economic benefits, has also brought new challenges to the operation. The risks associated with these areas’ remoteness, harsh climate and terrain, and their unique operational issues, needed to be addressed to maintain an equivalent level of safety in the operation. b. These issues began to significantly impact the viability of all long-range two-engine airplane operations under current regulations, and likewise began to erode the basic safety net that long-range operations in three- and four-engine airplanes had relied on. Because of these pressures and the increasing commonality of all long-range operations, the data began to show that ETOPS requirements and processes are generally applicable to all long-range passenger-carrying operations, including those by three- and four-engine airplanes, and would improve the safety and viability of such operations. All long-range passenger-carrying airplanes, regardless of the number of engines, needed a viable diversion airport in the case of onboard fire, medical emergency, or catastrophic decompression. Ensuring availability of en route alternate airports, adequate fire fighting coverage at these airports, and fuel planning to account for depressurization are sound operational practices for all airplanes, including three- and four-engine airplanes. Likewise, planning for the maximum allowable diversion and worst-case scenarios should account for all airplane time-critical systems. c. Unlike the ETOPS guidance provided for two-engine airplanes, there has been no regulatory framework governing the long-range operations of three- and four-engine airplanes. For example, in emergencies such as loss of cabin pressure, current regulations require adequate oxygen supplies but do not require the operator to consider the amount of extra fuel necessary to reach a diversion airport.
(1)An analysis of operational data shows that between 1980 and 2000, 33 of the 73 cruise depressurization events on one manufacturer's airplanes occurred on airplanes with more than two engines.
(2)A study conducted by this manufacturer using a modern four-engine aircraft carrying normal route planning fuel reserves raises issues about the adequacy of the current fuel planning requirements in the event of a diversion. d. Operational data shows that the diversion rate for all airplane-related and non-airplane-related causes are comparable between two-engine airplanes and airplanes with more than two engines. Consequently, the FAA has found that there is a need for all passenger carrying operations beyond 180 minutes from an adequate airport to adopt many of the ETOPS requirements that have been based on sound safety principles and successfully proven over many years of operations. Accordingly, the FAA revised § 121.161 to include passenger-carrying airplanes with more than two engines in these long-range operations. *203. “Extended Operations.”* a. Since 1985, the acronym, ETOPS, has been defined as “extended twin-engine operations” and has been limited to part 121 airplanes with only two engines. Current regulations have extended these applications to all passenger-carrying airplanes operating in both 14 CFR parts 121 and 135, and the acronym has now been redefined to mean “extended operations.” This is to acknowledge the similarity of certain long-range passenger-carrying operations of all airplanes operating today, and the common issues that impact such operations. b. Since 1988, the ETOPS limit for two-engine airplanes has been 180 minutes from an adequate airport at an approved one-engine-inoperative cruise speed under standard conditions in still air (excluding the limited authority in the North Pacific given under EPL 20-1, 207-Minute ETOPS Operational Approval Criteria, dated March 21, 2000). Service experience has shown that although limited, this authority has satisfactorily supported the vast majority of the world's current aviation routes. c. Those areas not supported within 180-minute diversion authority tend to be routes over remote areas of the world that are uniquely challenging to the operation. These areas include the South Polar Region, a small section in the South Pacific, the southern South Atlantic Ocean between South America and Africa, the southern Indian Ocean and the North Polar area under certain winter weather conditions. The additional operational challenges of these routes are equally demanding of all airplanes, regardless of the number of engines, and include such issues as extremes in terrain and meteorology, as well as limited navigation and communications infrastructure. Support of a necessary diversion and subsequent recovery in such areas demands added training, expertise, and dedication from all certificate holders. The development of ETOPS requirements is intended to address all these issues. d. Even though for continuity with current two-engine ETOPS the existing acronym ETOPS is retained, the ETOPS acronym has been re-defined. ETOPS has been expanded to include all passenger-carrying airplane operations where a proposed flight plan includes any point that is greater than 180 minutes from an adequate airport (at an approved one-engine-inoperative cruise speed under standard conditions in still air). *204. Preclude and Protect.* a. The whole premise of ETOPS has been to preclude a diversion and, if it were to occur, to have programs in place to protect the diversion. Under this concept, propulsion systems are designed and tested to ensure an acceptable level of in-flight shutdowns (IFSD), and other airplane systems are designed and tested to ensure their reliability. Two-engine airplane maintenance practices are enhanced to better maintain and monitor the condition of the engines and systems significant to ETOPS. The design of these enhanced practices has been a major factor in the joint development of the FAA's and industry's aggressive steps to develop a foundation to resolve problems with airplane systems and engines in order to minimize the potential for procedural and human errors, thereby precluding a diversion. b. However, despite the best design, testing, and maintenance practices, situations occur that may require an airplane to divert. Regardless of whether the diversion is for technical (airplane system- or engine-related) or non-technical reasons, the certificate holder must have a flight operations plan to protect that diversion. For example, such a plan must include ensuring that pilots are knowledgeable about diversion airport alternates and weather conditions (§ 121.631), have the ability to communicate with the certificate holder's dispatch office and air traffic control (§§ 121.99 and 121.122), and have sufficient fuel to divert to the alternate (§ 121.646). Under the “preclude and protect” concept, various failure scenarios need to be considered. For example, during the design of the airplane, time-limited systems such as cargo compartment fire suppression/containment capability are considered. Fuel planning must account for the possibility of decompression or the failure of an engine with considerations for in-flight icing conditions. Best options under these scenarios should be provided to the pilot before and during the flight. c. This philosophy has been critical to the success of two-engine ETOPS in the past and has been applied to these airplanes in operations beyond 60 minutes from an adequate airport. This application is based on the requirements of § 121.161 and the engine inoperative diversion requirements of § 121.565. In-service data shows that all airplanes, regardless of the number of engines, divert from time to time for various causes. All passenger-carrying operations conducted where there are a limited number of en route airports, where the support infrastructure is marginal, or where there are challenging weather conditions should adopt many of the same elements of the same preclude and protect concept. If certificate holders plan to operate passenger-carrying airplanes with more than two engines in areas where en route airports are farther away than 180 minutes, these operations are also required to meet certain the standards defined under ETOPS to ensure that all efforts are made to preclude a diversion, and if a diversion does occur, that procedures are in place to protect that diversion. *205. ETOPS Areas of Operation.* a. ETOPS areas of operation are defined by § 121.7 to be areas beyond a certain distance from adequate airports measured by an airplanes one-engine inoperative cruise speed under standard conditions in still air. Because of the impact such distances might have on the diversion time of an airplane, regulatory guidance has been established for the planning, operational, and equipage requirements for such operations. A certificate holder must apply to the FAA for approval to operate in an ETOPS area using the methodologies in this AC and is granted ETOPS authority for a specific ETOPS area of operations in their operations specifications. b. Most ETOPS authorities for two-engine ETOPS beyond 180 minutes are limited to a specific geographical region. Historically, ETOPS authorities for two-engine airplanes up to 180 minutes were developed based on a specific need in a particular operating area. Limiting expanded ETOPS authority beyond 180 minutes (for two-engine airplanes) has been extended and serves several purposes.
(1)The primary importance is the preclusion of an arbitrary use of diversion authority beyond that necessary to complete the operation safely and efficiently. Because it is accepted that increased diversion times potentially increase the risk of the operation a certificate holder must make every effort to plan ETOPS with a maximum diversion distance of 180 minutes or less, if possible.
(2)It should be a goal of all two-engine airplane flight planning to operate to the shortest diversion time that provides the widest range of options in the event of a diversion while recognizing the economic benefits of a more direct route and the safety benefits of diverting to an airport that is well equipped. Tying increased diversion authority to specific areas of operation accomplishes this goal while sufficiently addressing the operational needs of the industry.
(3)Likewise, this focus on specific needs and areas of operation does not add impetus to any perceived rationale for further degradation in the availability or capabilities of en route alternates in remote areas of the world. Although the industry has no direct authority to affect the actions of sovereign nations, it is reasonable to base operations on the value of en route alternate availability at reasonable diversion distances.
(4)In consideration of the successful history of three- and four-engine airplane operations and the reliability and redundancy of current engines used in this operation, ETOPS for these airplanes does not have similar restrictions and ETOPS authorities are not limited to geographic areas. However, like twin-engine operators, the three- and four-engine operator is required to designate the nearest available ETOPS alternate along the planned route of flight and must remain within a 240 minute diversion time if possible. c. In its application for ETOPS authority, the certificate holder will typically request a specific ETOPS area of operation based on an analysis of proposed routings and the availability of airports sufficient to support the operational requirements of the ETOPS regulations. Because the operating rules distinguish between ETOPS up to 180 minutes, and ETOPS beyond 180 minutes, the requested level of ETOPS authority in a certificate holder's application will necessarily have to be assessed differently for ETOPS beyond 180 minutes.
(1)Two-Engine Airplanes Up to 180-Minute ETOPS and 207-Minute ETOPS Authority in the North Pacific Area of Operations. The ETOPS area of operation is the area bounded by distance circles representing the approved one-engine-inoperative cruise speed under standard conditions in still air chosen by the applicant. The actual flight plan must comply with the fuel supply requirements in § 121.646(b) and must therefore account for wind. However, the flight planning limitations of § 121.633(a) for airplane systems do not require the operator to account for wind in such calculations for flight planning and for determining the ETOPS area of operations in these cases. This allows the applicant to choose an operating authority in his or her application that is based on the “ETOPS area of operation” determination. In other words, the distance from alternates in a certificate holder's route planning exercise will be the same value used to determine the type design criteria for the airplane-engine combination used in the operation, and the ETOPS approval necessary to fly the route under all flight planning conditions.
(2)ETOPS Beyond 180 Minutes (Two-Engine Airplanes and All Passenger-Carrying Airplanes With More Than 2 Engines). As required by § 121.633(b), for ETOPS beyond 180 minutes for all airplanes, the ETOPS operation must account for the effects of wind and temperature on the calculated distances. Consequently the planning for an ETOPS flight beyond 180 minutes is more complex.
(a)The certificate holder should first conduct a route planning exercise for each planned city pairing to determine the diversion authority needed in still air conditions. If the route or segments of the route exceed 180 minutes based on one engine inoperative speed and still air, then a secondary planning exercise (that may be required seasonally) should be conducted that factors in expected winds and temperatures on that route. The distance between adequate alternate airports on the route is converted into time (minutes) computed for all engine cruise speed, as well as engine inoperative speed. The number of minutes cannot exceed the time-limited system certified capability (cargo fire suppression and the other most limiting system) that is identified in the aircraft flight manual less the 15-minute pad. The operator needs to determine how much system capability is required for the planned route and equip its airplane to have sufficient margins. Finally, for the actual flight, the operator's flight planning must be within the airplane systems capability for the selected ETOPS alternate airports on the planned route based on diversion times that are calculated using known or forecast winds and temperature conditions.
(b)As a minimum, the certificate holder must ensure that the time-limited systems requirements of § 121.633(b) are met at the equal-time points between ETOPS alternates determined by the most limiting en route fuel supply requirements of § 121.646(b), commonly referred to as the ETOPS critical fuel scenario. Certificate holders flying three- and four-engine airplanes, prior to the established installation time and certification time requirements of the regulation for these systems and their airplanes, are exempt from these flight planning limitations.
(c)Once the required fire suppression systems are installed (no later than February 15, 2013) the certificate holder must follow the flight planning limitations of § 121.633(b)(1). As required by § 121.162(d), for airplanes with more than 2 engines manufactured on or after February 17, 2015, the Configuration, Maintenance and Procedures
(CMP)document for that model will list the airplane's most limiting ETOPS Significant System time issued in accordance with § 25.3(c). The Certificate holder operating an airplane-engine combination with more than two engines is required to comply with § 121.633(b)(2) if the CMP lists the most limiting ETOPS Significant System time. d. Credit for the Driftdown. For the purposes of computing distances for ETOPS Area of Operation, credit for driftdown may be taken. e. Actual Diversion Time. Actual diversion time may exceed the authorized diversion time as long as the flight is conducted within the authorized ETOPS Area of Operation, and complies with the requirements of § 121.633. *206. ETOPS Alternate Requirements.* a. One of the distinguishing features of ETOPS operations is the concept of an en route alternate airport being available where an airplane can divert following a single failure or a combination of failures that require a diversion. Most airplanes operate in an environment where there usually is a choice of diversion airports available within a close proximity to the route of flight. However, a certificate holder conducting ETOPS may only have one alternate airport within a range dictated by the endurance of a particular airframe system (for example, the cargo fire suppressant system), and that system or system failure may dictate the approved maximum diversion time for that route. Therefore, it is important that any airport designated as an ETOPS alternate have the capabilities, services, and facilities to safely support the operation. The weather conditions at the time of arrival should provide assurance that adequate visual references will be available upon arrival at decision height
(DH)or minimum descent altitude (MDA), and that the surface wind conditions and corresponding runway surface conditions will be acceptable to permit the approach and landing to be safely completed with an engine and/or systems inoperative. b. At dispatch, an en route alternate must meet ETOPS alternate weather requirements in § 121.625 and as specified in Chapter 3, paragraph 303c(5) of this AC and in the certificate holder's operations specifications (OpSpecs). Because of the natural variability of weather conditions with time, as well as the need to determine the suitability of a particular en route alternate before departure, such requirements are higher than the weather minimums required to initiate an instrument approach. This is necessary prior to the time that the instrument approach would be conducted, to provide for some deterioration in weather conditions after planning. This increases the probability that the flight will land safely after a diversion to an alternate airport. The airport of departure (takeoff) and the destination airport (unless used concurrently as an ETOPS alternate) are not required to meet the weather minima for ETOPS alternates, as these airports are subject to other regulations (e.g., §§ 121.617, 121.621, and 121.623). c. While en route, the forecast weather for designated ETOPS alternates must remain at or above operating minima. This provides ETOPS flights with the ability to resolve all diversion decisions successfully throughout the flight. The suitability of an en route alternate airport for an airplane that encounters an in-flight situation that necessitates a diversion during ETOPS operations is based on a determination that the airport still is suitable for the circumstances, and the weather and field conditions at that airport permit an instrument approach to be initiated and a landing completed. *207. ETOPS In-Service Experience Requirements.* a. When AC 120-42 was first released in 1985, two-engine ETOPS was a new concept and ETOPS approvals were sought on airframe-engine combinations that were already in service. Hence, it was logical to establish criteria for approvals based on in-service experience. At that same time, the FAA recognized the possibility that other approval methods could be developed without in-service experience, and accordingly, provided statements that recognized those options. The original two-engine ETOPS requirements for engine reliability were based on a world fleet in-service experience of 250,000 hours. For 120-minute ETOPS, the FAA additionally required the certificate holder to have 12 consecutive months of operational in-service experience with the airplane-engine combination (AEC). For 180-minute ETOPS, the FAA required the certificate holder to have previously gained 12 consecutive months of operational in-service experience with the specified AEC conducting 120-minute ETOPS. These basic, two-engine in-service requirements have been retained and are discussed in Appendix 3. Achieving these levels of experience, combined with the required levels of engine reliability, is an acceptable means of attaining ETOPS approval for operators of two-engine airplanes. b. At the time AC 120-42A was drafted, the FAA recognized that a reduction of two-engine in-service experience requirements or substitution of in-service experience on another airplane would be possible. Any reduction was to be based on an evaluation of the certificate holder's ability and competence to achieve the necessary reliability for the particular AEC in ETOPS. For example, a reduction in in-service experience would be considered for a certificate holder who could show extensive in-service experience with a related engine on another airplane that had achieved acceptable reliability. The FAA also allowed certificate holders unable to initially fly ETOPS routes at the lesser thresholds to make use of ETOPS simulation or demonstration programs in their application for 180-minute ETOPS. Eventually specific guidance material (AC 120-42A, appendix 7, Accelerated ETOPS Operational Approval) was developed by the FAA permitting ETOPS without accumulating in-service experience in the airplane-engine combination. Most subsequent ETOPS approvals have been granted under these guidelines and this method is retained in Appendix 3. *208. Operational Reliability and Systems Suitability Requirements.* a. The safety of long-range operations such as ETOPS depends on the reliability of all airplane systems including the propulsion systems. Time-limited systems such as cargo compartment fire suppression/containment capability must be considered (§ 121.633). The certificate holder must also have an established program that monitors the reliability of systems significant to ETOPS (§ 121.374). b. In order to achieve and maintain the required engine reliability standards, the certificate holder operating a two-engine airplane in ETOPS should assess the proposed maintenance and reliability program's ability to maintain a satisfactory level of airplane systems reliability for the particular airplane-engine combination. All certificate holders must design the flight operations and, if applicable, the maintenance programs for ETOPS with an objective to preclude diversions and, if a diversion does occur, to protect that diversion. Required ETOPS maintenance practices also must minimize the potential for procedural and human errors that could be detrimental to the safety of the operation. Fuel planning must account for the possibility of a depressurization and/or failure of an engine with considerations for in-flight icing conditions (§ 121.646). c. The type design requirements for ETOPS certification consider the probability of occurrence of conditions that would reduce the capability of the airplane or the ability of the flight crewmember to cope with an adverse operating condition. System failures or malfunctions occurring during extended range operations could affect flight crewmember workload and procedures. Although the demands on the flight crewmember may increase, a manufacturer applying for ETOPS type design approval must consider crew workload, operational implications, and the crew's and passengers' physiological needs during continued operation with failure effects for the longest diversion time for which it seeks approval. The manufacturer must also conduct flight tests to validate the adequacy of the airplane's flying qualities and performance, and the flightcrew's ability to safely conduct an ETOPS diversion with expected system failures and malfunctions. An ETOPS operator should carefully consider the possible adverse effects that changes in airplane equipment or operating procedures may have on the original evaluations conducted when the airplane was approved for ETOPS before implementing such changes. d. Following a determination that the airframe systems and propulsion systems are ETOPS type design approved as per part 25, an in-depth review of the applicant's required ETOPS programs will be accomplished to show the ability to achieve and maintain an acceptable level of systems reliability, and to safely conduct these operations. Chapter 3. Requirements for ETOPS Authorization *300. ETOPS Requirements.* The FAA may approve ETOPS for various areas of operation in accordance with the requirements and limitations specified in part 121, Appendix P. ETOPS must be authorized in the certificate holder's operations specifications and conducted in compliance with those sections of part 121 applicable to ETOPS. a. As of February 15, 2008, certificate holders operating passenger-carrying airplanes with more than two engines, having the authority to operate on specific ETOPS routes should not need to re-apply for their specific route authority. However, the certificate holder is required to comply with all the applicable ETOPS flight operational regulations described in this AC, and must have their ETOPS programs and processes approved by their CHDO with the concurrence of the Director, Flight Standards Service. b. The certificate holder's ETOPS requirements must be specified in their maintenance and operations programs. Maintenance requirements necessary to support ETOPS are explained in paragraphs 301 and 302. Flight operations requirements necessary to support ETOPS are described in paragraphs 303 and 304. c. The requirements for the various levels of ETOPS authorities are listed in tabular form in Appendix 2. *301. Maintenance Requirements for Two-Engine ETOPS Authorization.* The certificate holder conducting ETOPS with two-engine airplanes must comply with the ETOPS maintenance requirements as specified in § 121.374. These requirements are discussed in paragraphs a through o as follows: a. Continuous Airworthiness Maintenance Program (CAMP). The basic maintenance program for the airplane being considered for ETOPS is a CAMP that may currently be approved for a non-ETOPS certificate holder for a particular make and model airplane-engine combination. The basic CAMP must be a maintenance and inspection program that contains the instructions for continued airworthiness
(ICA)based on the manufacturer's maintenance program, or those contained in a certificate holder's maintenance manual approved in its operations specifications. The certificate holder and its certificate holding district office
(CHDO)must review the CAMP to ensure it provides an adequate basis for development of a ETOPS maintenance program. The certificate holder's ETOPS CAMP must include specific ETOPS requirements, which will be incorporated as supplemental requirements to the basic CAMP. These supplemental requirements include the enhanced maintenance and training processes that will ensure ETOPS airplanes achieve and maintain the level of performance and reliability necessary for ETOPS operations. These supplemental requirements, referred to in the industry as ETOPS processes or ETOPS process elements, currently should be in place for existing ETOPS operations. Prospective ETOPS certificate holders must supplement their basic CAMP with those program elements defined in paragraphs b through o below. b. ETOPS Maintenance Document. The certificate holder must develop a document for use by personnel involved in ETOPS. This document need not be inclusive but should, at least, reference the maintenance program and other pertinent requirements clearly indicating where all facets of the ETOPS maintenance program are located in the certificate holder's document system. All ETOPS requirements, including supportive programs, procedures, duties, and responsibilities, must be identified. The ETOPS document(s) must reflect the actual policies and procedures the certificate holder expects their ETOPS maintenance personnel to adhere to. The document(s) should be user friendly, and be accessible to all affected personnel. The initial document must be submitted to the CHDO and be approved before being adopted. c. ETOPS Predeparture Service Check (PDSC).
(1)The certificate holder must develop an ETOPS PDSC to verify that the airplane and certain significant items are airworthy and ETOPS capable. Each certificate holder's PDSC may vary in form and content. One certificate holder may have a one page PDSC while other certificate holders, using the same airplane-engine combination, may have six or more pages of items in their PDSCs. The prerequisites for an acceptable PDSC are content and suitability for the specific certificate holder's needs.
(2)All certificate holders must address ETOPS significant system airworthiness in their ETOPS maintenance program, including the PDSC. For example, proper servicing of fluids, such as engine, APU, generator systems, and hydraulic systems is a vital ingredient to successful ETOPS operations. Current ETOPS operations have had incidents resulting from improper fluid servicing that have resulted in IFSDs and diversions. Certificate holders should consider this area very seriously when developing their maintenance checks, including the PDSC.
(3)Some certificate holders may elect to include tasks in the PDSC that are driven by their reliability programs and are not related to ETOPS significant systems. However, the certificate holder clearly must identify the ETOPS related tasks on their PDSC, because non-ETOPS qualified maintenance personnel may accomplish the non-ETOPS tasks. An ETOPS-qualified maintenance individual must complete all ETOPS-related tasks and an ETOPS-qualified maintenance individual, with an airframe and powerplant rating, must certify the entire check. When outside the United States, if an individual with an airframe and powerplant rating is not available, then a trained individual employed by an FAA certificated repair station, contracted by the certificate holder must certify the entire check. This PDSC must be certified complete immediately before each scheduled ETOPS flight. The term “immediately” has historically meant to be no more than 2 to 4 hours before the flight. However, the FAA may grant some relief from this time period under certain conditions. The certificate holder should explain any rational for such deviations in its ETOPS maintenance document, which is approved by its CHDO.
(4)A PDSC may not be required before all ETOPS flights. The FAA may grant relief following irregular operations because of non-mechanical issues, such as weather or medical emergency diversions, or when operating ETOPS into specific areas of operation. For example, if an airplane scheduled for an ETOPS flight receives a PDSC before departure and subsequently must divert or turn back for reasons other than mechanical, the certificate holder must identify in its ETOPS maintenance document what procedures its flight operations and maintenance personnel would follow to preclude performing another PDSC. If a mechanical discrepancy develops as a result of the diversion or turn back, the certificate holder may have to perform another PDSC. For example, when an overweight landing inspection reveals a discrepancy that requires maintenance intervention, another PDSC is required.
(5)In areas where prevailing weather conditions are stable and generally do not approach extremes in temperature, wind, ceiling, and visibility, such as in the Caribbean/Western Atlantic (75-minute ETOPS) and Micronesia routes (90-minute ETOPS), the service check may not be required for the return leg of an ETOPS flight. This check is not precluded by any other maintenance check. d. Dual Maintenance.
(1)ETOPS dual maintenance, otherwise referred to as identical maintenance, multiple maintenance, and simultaneous maintenance, requires special consideration by the certificate holder. This is to recognize and preclude common cause human failure modes. Proper verification processes or operational tests, prior to ETOPS, are required when dual maintenance on significant systems occurs.
(2)Dual maintenance on the “same” ETOPS Significant System can be described as actions performed on the same element of identical, but separate ETOPS Significant Systems during the same routine or non-routine visit. Examples of maintenance on the “same” ETOPS Significant System are: maintenance of both Satellite Communication (SATCOM) systems during a turnaround flight; removal of either both engine oil filters, or both chip detectors; and replacement of both chip detectors.
(3)Dual maintenance on “substantially similar” ETOPS Significant Systems specifically addresses maintenance actions on engine-driven components on both engines. An example of dual maintenance on “substantially similar” ETOPS Significant Systems could include: replacement of the no. 1 Integrated Drive Generator
(IDG)and the no. 2 Engine Driven Pump (EDP).
(4)The certificate holder must establish procedures that minimize identical maintenance actions from being scheduled or applied to multiple similar elements in any ETOPS Significant System during the same routine or non-routine maintenance visit. In order to manage this requirement the certificate holder must develop a list of fleet-specific ETOPS Significant Systems and include them in their ETOPS maintenance document(s).
(5)The FAA recognizes that sometimes ETOPS dual maintenance actions cannot be avoided or precluded because of unforeseen circumstances that occur during ETOPS operations. In the line maintenance arena, one example would be when an ETOPS airplane has inbound discrepancies on both engines' oil systems, or there is a generator replacement on one engine, and an oil system discrepancy on the other engine. Another example is if both of the SATCOM systems require maintenance at the same time during a turnaround flight. Additionally, staggering maintenance on ETOPS Significant Systems in the heavy maintenance arena is not always possible or feasible. However, to minimize human factor common cause risk, the certificate holder should attempt to minimize dual maintenance on ETOPS Significant Systems wherever/whenever possible.
(6)In any event, when dual maintenance is performed on a ETOPS Significant System, the certificate holder must have written procedures in its ETOPS maintenance document that addresses this situation. At a minimum, the certificate holder must ensure:
(a)Separate ETOPS-qualified maintenance persons perform the tasks, or
(b)The maintenance action on each of the elements in the ETOPS Significant System is performed by the same technician under the direct supervision of a second ETOPS qualified individual, and
(c)It verifies the effectiveness of the corrective actions to those ETOPS Significant Systems before the airplane enters the ETOPS area of operation. This verification action must be performed using ground verification methods, and in some instances, in-flight verification methods described in the next section of this AC. On an exception basis, the same ETOPS-qualified technician, under the supervision of an ETOPS-qualified Centralized Maintenance Control person, may perform the dual maintenance and the ground verification methods only if in-flight verification action is performed.
(7)The FAA acknowledges that the servicing of fluids and gases is not considered maintenance; however, these tasks, when done improperly have adversely affected ETOPS operations. The certificate holder should recognize the hazard associated with improper servicing and do all possible to mitigate the associated risk. Specifically, servicing tasks such as engine, APU, and generator system oil servicing are tasks that require high levels of attention. The FAA encourages the certificate holder to ensure that its programs have separate individuals perform such servicing. However, the FAA recognizes that many certificate holder's route and organizational structures may not lend themselves to these procedures. The certificate holder's program should include detailed servicing instructions, or make readily available servicing instructions, and provide related OJT, regardless of whether one individual or multiple individuals perform the tasks. e. Verification Program.
(1)The certificate holder must develop a verification program for resolution of airplane discrepancies (corrective actions) on ETOPS significant systems. This program must include corrective action confirmation in specific areas such as engine shutdown, significant system failure, adverse trends, or any prescribed event that could effect an ETOPS operation. The program must ensure corrective action is taken and confirmed successful before the airplane enters an ETOPS area of operation. The certificate holder must verify the effectiveness of the corrective actions following the maintenance action and prior to an ETOPS flight or prior to passing the ETOPS entry point. The ground verification method is accomplished by following the Instructions for Continued Airworthiness
(ICA)contained in the airplane maintenance manuals
(AMM)or the certificate holder's maintenance manuals. These ICAs include built-in test equipment
(BITE)and functional/operational checks that often include leak checks after ground runs.
(2)Normally ground verification is acceptable to ensure corrective action. Under certain conditions ground verification beyond that recommended in the ICA or in-flight verification may be required. An example of a condition that would require an in-flight verification is the replacement of an APU component that could affect the APU's ability to start at the ETOPS cruise altitude after cold soak. In-flight verification may be conducted on revenue flights, provided the action is completed before the ETOPS entry point. Ground maintenance personnel must coordinate with flight operations personnel whenever an in-flight verification is required. Each certificate holder must identify its ETOPS significant systems, ground verification requirements, and in-flight verification requirements in its ETOPS maintenance document.
(3)The certificate holder must establish a means to ensure any required verification action is accomplished. The certificate holder must include a clear description of who initiates verification actions and who is responsible for completing the actions in its ETOPS maintenance document. f. Task Identification.
(1)The certificate holder must identify all tasks that must be accomplished or certified as complete by ETOPS qualified personnel. The intent is to have ETOPS trained maintenance personnel accomplish these identified tasks because they are related to ETOPS. ETOPS specific tasks should be:
(a)Identified on the certificate holder's work forms and related instructions, or
(b)Parceled together and identified as an ETOPS package.
(2)If a certificate holder does not identify ETOPS-related task in their current maintenance program, then all task must be accomplished by ETOPS-qualified personnel.
(3)In the event that maintenance is performed on an ETOPS airplane by personnel who are not ETOPS trained, then the actions must be verified per the certificate holder's ETOPS verification program. g. Centralized Maintenance Control Procedures. An ETOPS certificate holder, regardless of the size of its ETOPS fleet, must have a centralized entity responsible for oversight of the ETOPS maintenance operation. The certificate holder must develop and clearly define in its ETOPS maintenance document specific procedures, duties, and responsibilities for involvement of their centralized maintenance control personnel in the ETOPS operation. These established procedures and centralized control processes would preclude an airplane from being dispatched for ETOPS flights after an engine IFSD, ETOPS significant system failure, or discovery of significant adverse trends in system performance without appropriate corrective action having been taken. h. ETOPS Parts Control. The certificate holder must develop a parts control program to ensure the proper parts and configurations are maintained for ETOPS. The program must include procedures to verify that the parts installed on ETOPS airplanes during parts borrowing or pooling arrangements, as well as those parts used after repair or overhaul, maintain the required ETOPS configuration. i. Reliability Program.
(1)The certificate holder must develop an ETOPS reliability program or enhance its existing reliability program to incorporate the ETOPS supplemental requirements. This program must be designed with early identification and prevention of ETOPS-related problems as the primary goal. The program must be event-oriented, and incorporate reporting procedures for critical events detrimental to ETOPS flights. For those certificate holders that do not have an FAA-approved reliability program, their continuing analysis and surveillance system
(CASS)must be enhanced to achieve ETOPS reliability goals. The certificate holder should submit a monthly ETOPS reliability report to its CHDO.
(2)In keeping with the reporting requirements in § 121.703, the certificate holder must report the following items within 96 hours to its CHDO:
(a)IFSDs, except planned IFSDs performed for flight training.
(b)Diversions and turnbacks for failures, malfunctions, or defects associated with any airplane or engine system.
(c)Uncommanded power or thrust changes or surges.
(d)Inability to control the engine or obtain desired power or thrust.
(e)Inadvertent fuel loss or unavailability, or uncorrectable fuel imbalance in flight.
(f)Failures, malfunctions or defects associated with ETOPS Significant Systems.
(g)Any event that would jeopardize the safe flight and landing of the airplane on an ETOPS flight.
(3)The reporting of any of the above items must include the information specified in § 121.703(e).
(4)The certificate holder must conduct an investigation into the cause of the occurrence of any event listed in § 121.703 and § 121.374(h)(1) in conjunction with manufacturers and submit its findings to its CHDO. If the CHDO determines additional corrective action is necessary, the certificate holder must further investigate and implement appropriate corrective action acceptable to the CHDO. j. Propulsion System Monitoring.
(1)The certificate holder must monitor its fleet average IFSD rate for the specified airplane-engine combination. It should establish firm criteria regarding the actions it will take when it detects adverse trends in propulsion system conditions. If the IFSD rate, computed on a 12-month rolling average, exceeds the values in the following table, the certificate holder, in conjunction with its CHDO, must investigate common cause effects or systemic errors and submit the findings to its CHDO within 30 days. In Flight Shut Down Rates Number of engines Engine hours ETOPS ETOPS authorization 2 .05/1000 Up to and including 120 minutes. 2 .03/1000 Beyond 120 minutes up to and including 180 minutes and 207 minutes in North Pacific. 2 .02/1000 Greater than 180 minutes (Except for 207 minutes in North Pacific.
(2)With respect to maintenance, the purpose of monitoring IFSD rates is to provide FAA and operators with a tool for measuring the health of a fleet of ETOPS-approved airplanes in service. Causes of IFSDs or other engine and propulsion system problems may be associated with type design problems and/or maintenance and operational procedures applied to the airplane. It is very important that the certificate holder identify the root cause of events so that an indication of corrective action is available, such as a fundamental design problem that requires an effective hardware (or software) final fix. Repetitive inspections may be satisfactory as interim solutions, but longer-term design solutions, such as terminating actions, may be required if possible. Design problems can affect the whole fleet. The FAA will not revoke an existing ETOPS operational approval solely because of a high IFSD rate. A certificate holder who experiences a type design related event need not be operationally penalized for a problem that is design-related and may not be of their own making. However, maintenance or operational problems may be wholly, or partially, the responsibility of the certificate holder. If a certificate holder has an unacceptable IFSD rate risk attributed to common cause or a systemic problem in operational practices or the maintenance program, then action carefully tailored to that certificate holder may be required, and may include a reduction of the certificate holder's diversion limit.
(3)The certificate holder must investigate an IFSD rate higher than the 12-month rolling average standard that occurs for a mature fleet after the commencement of ETOPS (Refer to the IFSD Rates table above.). The certificate holder also must investigate any indication of a high IFSD rate; however, it must consider that in the case of the smaller fleet, the high IFSD rate may be because of the limited number of engine operating hours used as the denominator for the rate calculation. This can cause an IFSD jump well above the standard rate because of a single IFSD event. The underlying causes for such a jump in the rate will have to be considered by the Administrator's representative. On occasion, a particular event may also warrant implementation of corrective action even though the overall IFSD rate is not being exceeded.
(4)The 30-day reporting criteria of paragraph 301j
(1)is intended to ensure that the certificate holder provides the FAA timely notification of the status of an event investigation. The certificate holder may or may not have root cause or terminating action at the end of the 30-day period, and further discussions with the FAA may be required after this period.
(5)The certificate holder may designate a sub-fleet engine/airframe combination for the purposes of the IFSD monitoring/rate program. The operator may include the IFSD statistics of all engines that are ETOPS configured and are maintained in accordance with the operators ETOPS program even if used on non-ETOPS airplanes. k. Engine Condition Monitoring. The certificate holder must develop a program for its ETOPS engines that describes the parameters to be monitored, method of data collection, and corrective action processes. The program should reflect the manufacturer's instructions and industry practices, or the certificate holder should establish a program that demonstrates an equivalent level of monitoring and data analysis. The goal of this monitoring program is to detect deterioration at an early stage, and to allow for corrective action before safe operation is affected. Engine limit margins should be maintained so that prolonged engine inoperative diversions may be conducted without exceeding approved engine limits (for example, rotor speeds and exhaust gas temperature) at all approved power levels and expected environmental conditions. Engine margins preserved through this program should account for the effects of additional engine loading demands (for example anti-ice and electrical), which may be required during IFSD flight phase associated with the diversion. If oil analysis monitoring, such as the Spectrographic Oil Analysis Program (SOAP), is meaningful and recommended by the manufacturer, the certificate holder should include it in their program. l. Oil Consumption Monitoring. The certificate holder must develop an engine oil consumption monitoring program to ascertain that there is enough oil to complete the scheduled ETOPS flight. The certificate holder's consumption limit must not exceed the manufacturer's recommendations, and it must trend oil consumption. The certificate holders trending program may be done manually or by electronic means. The program must consider the amount of oil added at the departing ETOPS station with reference to the running average consumption, as well as monitor for sudden increases in consumption. The monitoring must be continuous including non-ETOPS flights and the oil added at the ETOPS departure station. For example, after servicing, the oil consumption may be determined by maintenance personnel as part of the pre-departure check. The amount of oil added also could be reported to a centralized maintenance control for calculation before the ETOPS flight. If the APU is required for ETOPS, it must be included in the oil consumption monitoring program. Any corrective actions taken regarding oil consumption must be verified before ETOPS departure. m. APU In-Flight Start Program.
(1)If the airplane type certificate requires an APU but does not normally require the APU to operate during the ETOPS portion of the flight, the certificate holder must develop an in flight start and run reliability program to ensure that the APU will continue to provide the performance and reliability established by the manufacturer. This monitoring program must include periodic sampling of each airplane's APU in-flight starting capabilities. Specifically, the certificate holder must ensure that each airplane's APU periodically is sampled rather than repeatedly sampling the same APUs. The certificate holder may adjust sampling intervals according to system performance and fleet maturity. The certificate holder and its CHDO should periodically review the certificate holder's APU in-flight start program data to ensure that the in-flight start reliability is maintained. Should the rolling 12-month APU in-flight start rate drop below 95 percent, the certificate holder should initiate an investigation into any common cause effects or systemic errors in procedures.
(2)The certificate holder should include the criteria below in their APU in-flight start program. The certificate holder should make APU in-flight starts subject to the following conditions:
(a)In-flight APU starts do not need to be performed on ETOPS flights; however, the APU must be in the ETOPS configuration in accordance with the appropriate CMP document, if applicable, for credit to be allowed.
(b)If in-flight APU start is performed on an ETOPS flight, the start may be attempted on the return leg.
(c)The start attempt should be initiated before top of descent, or at such time that will ensure a 2-hour cold soak at altitude before the start attempt.
(d)Within route or track constraints, the objective would be met by attempting a start near the highest altitude assigned the route or track, and the final attempt near the lower altitude limits of the route or track, as defined by ATC. These altitudes must be representative of the ETOPS routes flown.
(e)If the APU fails to start on the first attempt, subsequent start attempts may be made within the limits of the airframe and APU manufacturer design specifications stated in the applicable Aircraft Flight Manual
(AFM)and AMM.
(3)The certificate holder must report any operationally required APU in-flight start failures occurring during actual ETOPS operations to its CHDO within 96 hours. The certificate holder also must report any occurrences of an ETOPS configured APU in-flight unsuccessful start attempt occurring during routine sampling (which exceed the airframe and APU manufacturer design specifications) to its CHDO. The final report should include corrective actions taken as well as the status of corrective action programs and fleet upgrades. n. Configuration Maintenance and Procedures (CMP).
(1)The CMP Standard specifies any additional configuration, maintenance or operational requirement that is uniquely applicable to ETOPS. The requirements in the CMP are established by the FAA at the time of initial ETOPS type design approval of the airplane-engine combination. The CMP document typically is published and maintained by the airplane manufacturer and includes identified CMP requirements. Airplane manufacturers may continue to release CMP revisions beyond the basic revision level required for ETOPS. The CMP revision levels required for specific airplane-engine combinations are typically listed in the front of the CMP or may be controlled through issuance of customized CMP documents. The certificate holder must implement the basic configuration, maintenance, and operating procedures standard, identified in the CMP, before beginning ETOPS operations. If a CMP document exists for an ETOPS certificate holder's airplane, the certificate holder must ensure that all of the following apply:
(a)Configuration features are installed in the airplanes and engines;
(b)Maintenance procedures are incorporated into the maintenance program;
(c)Demonstrated capabilities are incorporated into the flight operations manual and the minimum equipment list, as required; and
(d)Operators must coordinate any deviation from the manufacturer's CMP requirements with the CHDO or ACO, as required by the CMP document.
(2)Each certificate holder must develop a system to ensure all CMP requirements remain incorporated in its airplanes, programs, and manuals throughout the operational life of each airplane, for as long as they operate in ETOPS.
(3)The FAA will mandate any subsequent CMP changes necessary for continued safe ETOPS operations through the airworthiness directive
(AD)process. The certificate holder should review and consider voluntarily incorporating any revised CMP standard that enhances airplane reliability and/or performance.
(4)The certificate holder should provide its CHDO a matrix detailing the CMP standard for its proposed ETOPS fleet. The matrix should specifically include each CMP item number, revision level, item description, and reference documentation describing the incorporation method, date, and place. o. Procedural Changes. Refer to Chapter 5, paragraph 502 for ETOPS maintenance and training program changes. *302. ETOPS Maintenance Training Requirements.* a. The certificate holder is responsible for ensuring that all maintenance personnel who perform maintenance on its ETOPS airplanes, including repair stations, vendors, and contract maintenance, have received adequate technical training for the specific airplane-engine combination it intends to operate in ETOPS. The certificate holder should review the existing airplane-engine combination maintenance training program with its CHDO to ensure that it adequately provides the necessary training. b. Additionally, the certificate holder must develop ETOPS specific training that focuses on the special nature of ETOPS and take measures to insure that this training is given to all personnel involved in ETOPS. ETOPS specific training is in addition to the certificate holder's accepted maintenance training program used to qualify individuals for specific airplanes and engines and may be included in the accepted maintenance training curricula. It thus, becomes the certificate holder's ETOPS training program. The goal of this training is to ensure that all personnel involved in ETOPS properly accomplish ETOPS maintenance requirements. The certificate holder is responsible with acceptance from the CHDO to determine which personnel are involved in ETOPS, and ensure that each person's level of ETOPS training is commensurate with their level of involvement with ETOPS airplanes. For example, a mechanic who is performing pre-departure service checks may be required to have a higher level of ETOPS training and certification than a mechanic performing routine tasks on non ETOPS significant systems during a heavy maintenance check. A technician working ETOPS significant systems in an HMV (Heavy Maintenance Visit) environment must be appropriately trained for ETOPS, but need not be ETOPS certificated. Recurrent training in all maintenance areas should be established and used to inform personnel involved in ETOPS about new equipment, requirements, operator programs, etc. Experience has shown recurrent training is a valuable instrument in “lessons learned” for ETOPS operations. c. In the line maintenance environment, ETOPS-qualified maintenance personnel are those who have successfully completed the certificate holder's ETOPS training program, and who have satisfactorily performed extended range tasks under the direct supervision of an FAA-certificated maintenance person. The person giving the direct supervision must have had previous experience with maintaining the particular make and model airplane being used by the certificate holder. For new airplanes, it is understood the certificate holder may not have an FAA certified maintenance person available who has previous experience with the newly introduced make and model airplane. In this instance, the training received from the manufacturer's maintenance training program, or a comparable program would be acceptable. *303. ETOPS Flight Operations Requirements* a. Airplane Performance Data. The certificate holder may not dispatch an airplane on an ETOPS flight unless it makes performance data available to its flight crewmembers and dispatchers. This performance data will contain the following information:
(1)Detailed one-engine-inoperative performance data including fuel flow for standard and nonstandard atmospheric conditions, which should be demonstrated as a function of airspeed and power setting, where appropriate. This data will cover:
(a)Driftdown (includes net performance);
(b)Cruise altitude coverage including 10,000 feet;
(c)Holding; and
(d)Altitude capability (includes net performance).
(2)Detailed all-engine-operating performance data, including nominal fuel flow data, for standard and nonstandard atmospheric conditions, which should be demonstrated as a function of airspeed and power setting, where appropriate. This data will cover:
(a)Cruise altitude coverage including 10,000 feet; and
(b)Holding.
(3)Details of any other conditions relevant to ETOPS that can cause significant deterioration of performance, such as ice accumulation on the unprotected surfaces of the airplane, RAM Air Turbine
(RAT)deployment, and thrust reverser deployment. b. En Route Airport Information.
(1)In accordance with § 121.97, the certificate holder must maintain current status information on the operational capabilities of the airports designated for use as ETOPS alternates. “Public protection” has been a historic requirement for all domestic and flag operations. For ETOPS greater than 180 minutes and for operations traversing the North and South Polar Areas, this requirement has been expanded to include the listing of facilities at each airport, or in the immediate area, sufficient to protect the passengers and crew from the elements and to see to their welfare. Such a requirement can be interpreted to encompass the time from landing until satisfactory recovery of passengers and crew based on the certificate holder's passenger recovery plan required by § 121.135 and discussed in Chapter 4, paragraph 403c(5) of this AC.
(2)The certificate holder's program should provide flight crewmembers with current weather and information on a set of adequate airports in the ETOPS portion of the flight that are within the maximum diversion capability of the airplane on the planned route of flight as an aid to the flight crew in contingency planning. Any appropriate facility information and other data concerning these airports should be provided to flight crewmembers in a clear, concise, user-friendly format for use when planning a diversion.
(3)Section 121.135 requires that any certificate holder conducting passenger flag operations must include in their Flight Operations Manuals or equivalent documentation available to the flight crews:
(a)For ETOPS greater than 180 minutes, a specific passenger recovery plan for each ETOPS Alternate Airport used in those operations; and
(b)For operations in the North Polar Area and South Polar Area, a specific passenger recovery plan for designated diversion airports. c. Dispatch.
(1)Alternates. A certificate holder may not dispatch an airplane in ETOPS unless the required takeoff, destination and alternate airports, including ETOPS alternate airports are listed in the cockpit documentation (e.g., computerized flight plan) and are identified and listed in the dispatch release. Because ETOPS alternates serve a purpose different from that of a destination alternate, and may be used in the event of a diversion with an engine failure or loss of a primary airplane system, a certificate holder should not list an airport on the dispatch/flight release as an ETOPS alternate unless that airport's services and facilities are adequate for such a diversion. A certificate holder of a two-engine airplane should exercise ETOPS beyond 180 minutes authority only if there are no ETOPS alternates that are within a 180-minute diversion distance from the planned route of flight. In addition, those adequate airports closest to the planned route of flight should be those first considered as ETOPS alternates.
(2)Flight Planning Limitation. The certificate holder's ETOPS flight planning program must ensure that the planned route of flight remains within the authorized ETOPS area of operation in accordance with § 121.633 as follows:
(a)For ETOPS up to and including 180 minutes and 207 minutes in the North Pacific Area of Operation, the time required to fly the distance to the planned ETOPS alternate, at the approved one-engine-inoperative cruise speed in still air and standard conditions, may not exceed the time specified for the airplane's most time limited ETOPS significant system (including cargo fire suppression) minus 15 minutes.
(b)For ETOPS beyond 180 minutes, the time required to fly the distance to the planned ETOPS alternate, at the all-engines-operating cruise speed at the normal all-engine-cruise altitude, correcting for wind and temperature, may not exceed the certified capability for the airplane's most limiting fire suppression system minus 15 minutes. Three- and four-engine turbine engine-powered airplanes not meeting these requirements as of the effective date of § 121.633 may continue ETOPS operations until February 15, 2013.
(c)Further, for ETOPS beyond 180 minutes, the time required to fly the distance to the planned ETOPS alternate, at the approved one-engine-inoperative cruise speed at the normal one engine inoperative level off altitude, correcting for wind and temperature, may not exceed the certified capability for the airplane's most time limited ETOPS significant system (except for the most limiting fire suppression system) minus 15 minutes. Note: Certificate holders flying three- and four-engine airplanes prior to the established installation time and certification time requirements of the regulation for these systems and their airplanes are exempt from these flight planning limitations. Once such required fire suppression systems are installed (no later than February 15, 2013) and once the ETOPS significant system time limits are established and placed in the CMP as required by 121.162(d) (no later than February 17, 2015), the operator must follow the flight planning limitations in 121.633(b)(1) and 121.633(b)(2).
(3)Landing Distance. For the runway expected to be used, the landing distance available, as specified by the airport authority, must be sufficient based on airplane flight manual landing performance data to meet the landing distance limitations specified in § 121.197. The altitude of the airport, wind conditions, runway surface conditions, and airplane handling characteristics should be taken into account.
(4)Airport Rescue and Fire-Fighting Service (RFFS).
(a)The following minimum International Civil Aviation Organization
(ICAO)rescue and fire-fighting service
(RFFS)categories must be available at each airport listed as an ETOPS Alternate Airport in a dispatch or flight release: 1. ETOPS Up to 180 Minutes. ETOPS alternates with ICAO Category 4. 2. ETOPS Greater than 180 Minutes. ETOPS alternates with Category 4. In addition, the airplane must remain within the ETOPS authorized diversion time from an Adequate Airport that has RFFS equivalent to that specified by ICAO Category 7, or higher. The availability of Adequate Category 7 RFFS airports must be considered for the entire ETOPS segment of the planned route.
(b)If the necessary equipment and personnel are not immediately available at the airport, additional fire fighting support may be brought in from a nearby town or other location. The certificate holder must ensure that the nearby facility is capable of responding to a request for firefighting assistance within a reasonable time. A 30-minute response time is deemed adequate if the initial notification to respond can be initiated while the diverting airplane is en route. A 30-minute response time does not imply that the firefighting equipment has to be at the airport within 30 minutes of the initial notification under all conditions. It does mean that such equipment must be available on arrival of the diverting airplane and remain on station as long as the services are needed.
(5)ETOPS Alternate Minima. A particular airport may be considered to be an ETOPS alternate for flight planning and dispatch purposes, if the latest available forecast weather conditions from the earliest time of landing to the latest time of landing at that airport, equals or exceeds the criteria detailed in the following table. Because OpSpecs alternate weather minima standards apply to all alternates, the following criteria is recommended for a typical certificate holder's OpSpecs. An individual certificate holder's OpSpecs must reflect current requirements (§ 121.625). Although no consideration for the use of GPS/RNAV approaches is presented here, operators may request to receive this authorization through the FAA. This authorization would be reflected in the operator's OpSpecs. Appropriate ETOPS alternate minima for such operations will be determined by the Director, Flight Standards Service. The airport of departure (takeoff) and the destination airport (unless used concurrently as an ETOPS alternate) are not required to meet the weather minima for ETOPS alternates as these airports are subject to other regulations (e.g., §§ 121.617, 121.621, and 121.623). BILLING CODE 4910-13-P EN17SE07.008
(6)Fuel Supply. The certificate holder must comply with the ETOPS en-route fuel supply as specified in § 121.646(b) as follows:
(a)No person may dispatch or release for flight or takeoff a turbine engine-powered airplane in ETOPS unless, considering wind and other weather conditions expected, it has the fuel required by normal Flag requirements and enough fuel to satisfy paragraphs 1 through 4 below: 1. The greater amount of fuel sufficient to fly to an ETOPS alternate under the following three scenarios: • Assuming a rapid decompression at the most critical point followed by descent to a safe altitude in compliance with the oxygen supply requirements of § 121.333, or • At the approved one-engine-inoperative cruise speed assuming a rapid decompression and a simultaneous engine failure at the most critical point followed by descent to a safe altitude in compliance with the oxygen supply requirements of § 121.333, or • At the approved one-engine-inoperative cruise speed assuming an engine failure at the most critical point followed by descent to the one-engine-inoperative cruise altitude. 2. Upon reaching the alternate, hold at 1,500 ft above field elevation for 15 minutes and then conduct an instrument approach and land. 3. Add a 5 percent wind speed factor (that is, an increment to headwind or a decrement to tailwind) on to the actual forecast wind used to calculate fuel in paragraph 1 above to account for any potential errors in wind forecasting. If a certificate holder is not using the actual forecast wind based on a wind model acceptable to the FAA, the airplane must carry 5 percent of the fuel required for paragraph 1 above, as reserve fuel to allow for errors in wind data. A wind aloft forecast distributed worldwide by the World Area Forecast System
(WAFS)is an example of a wind model acceptable to the FAA. 4. After completing the calculation in paragraph 3, compensate in paragraph 1 above with additional fuel for the greater of the following scenarios: • The effect of airframe icing during 10 percent of the time during which icing is forecast (including ice accumulation on unprotected surfaces, and the fuel used by engine and wing anti-ice during this period). Unless a reliable icing forecast is available, icing may be presumed to occur when the total air temperature at the approved one-engine cruise speed is less than +10 degrees Celsius, or if the outside air temperature is between 0 degrees Celsius and −20 degrees Celsius with a relative humidity of 55 percent or greater. • Fuel for engine anti-ice, and if appropriate wing anti-ice, for the entire time during which icing is forecast.
(b)Unless the certificate holder has a program established to monitor airplane in-service deterioration in cruise fuel burn performance, and includes in fuel supply calculations fuel sufficient to compensate for any such deterioration, increase the final calculated fuel supply by 5 percent to account for deterioration in cruise fuel burn performance.
(c)If the APU is a required power source, then its fuel consumption must be accounted for during the appropriate phases of flight.
(d)In computing the ETOPS alternate fuel supply, advantage may be taken of driftdown computed at the approved one-engine-inoperative cruise speed. Accounting of wing anti-ice as in paragraph (6)(a)4 above may apply to some models of airplane based on their characteristics and the manufacturer's recommended procedures.
(7)Communications. The FAA has determined that the best way to assure clear and timely communication in general, is via voice communication. Likewise the FAA has determined that there is a significant safety benefit associated with an ETOPS flight having the ability to communicate via a satellite based voice system, especially for those situations that occur while on long, remote ETOPS routes. The need for safety is best served through information and technical assistance that is clearly and rapidly transmitted to the flight crew in a way that requires the least amount of distraction to piloting duties. Other than the area north of 82 degrees latitude, satellite communications provides the best means to provide that capability because it is not limited by distance. The FAA recognizes the limitations of satellite communications (SATCOM) in the North Polar Area above this latitude, and in such an area an alternate communication system such as HF voice or data link is to be used. The relatively short period of time that the flight is above latitude 82 degrees North in relation to the total planned flight time is a small fraction of the total flight. The ability to use SATCOM for all other portions of the flight, which for some routes could be longer than 15 hours duration, is advantageous to the flight. For flights above 82 degrees North latitude, the operator must also ensure that communications requirements can be met by the most reliable means available, taking into account the potential communication disruption due to solar flare activity. The same philosophy and commensurate requirements apply for ETOPS in the South Polar Area.
(a)Section 121.99(a) includes a requirement for communications facilities that enable rapid and reliable communications on routes and altitudes that may be used. For all ETOPS each certificate holder conducting flag or supplemental operations in ETOPS must provide voice communications over routes where voice communications facilities are available. Where voice communication facilities are not available, and voice communication is not possible or is of poor quality, communications using alternative systems must be substituted.
(b)In addition to the communication requirement above, flag and supplemental certificate holders operating ETOPS beyond 180 minutes from an alternate must have a second communications system that is capable of providing immediate satellite-based voice communications of landline telephone fidelity such as SATCOM. This system must be capable of providing clear voice communications between the flight crewmember and air traffic control, and the flight crewmember and operations (dispatch). Where clear satellite-based voice communications are not available, alternative communications systems must be substituted. If an operator has provided a satellite communication system for the crew to satisfy § 121.99(a), it is not necessary that the second communication system required for ETOPS beyond 180 minutes be satellite based.
(c)In determining whether such communications requirements discussed in paragraphs
(a)and
(b)above are available, the certificate holder must consider potential routes and altitudes needed for possible diversions to ETOPS alternates as well as the original planned routing.
(8)Dispatch/Flight Release.
(a)The following items must be listed in the dispatch or flight release for all ETOPS in accordance with § 121.687: 1. ETOPS alternates, and 2. The authorized ETOPS diversion time under which the flight is dispatched or released.
(b)The pilot in command
(PIC)must have access to the weather and status of services and facilities at all adequate airports with weather greater than approach minimums other than the designated ETOPS alternates along the planned route that could be used for diversion before accepting the flight release.
(c)If a flight is dispatched on a route that is greater than 180 minutes from an ETOPS alternate, the certificate holder must inform the flight crew and give them the reason for the routes selection.
(9)Dispatch on a “Flight-by-Flight Exception” Basis. For two-engine airplane ETOPS approvals under the provisions of 207-minute ETOPS in the North Pacific Area of Operation, and 240-minute ETOPS in the North Polar Area, in the area north of the NOPAC area, and the Pacific Ocean area north of the equator, regulations limit the operator's use of this authority in these areas to an “exception” basis. This exception may only be used when an ETOPS alternate is not available within 180 minutes and is based on certain criteria.
(a)For 207-Minute ETOPS, exception criteria includes political or military concerns, volcanic activity, temporary airport conditions, and airport weather below dispatch requirements, or other weather related events.
(b)For 240-Minute ETOPS in the North Polar Area and in the Area North of NOPAC, exception criteria includes extreme conditions particular to these areas such as volcanic activity, extreme cold weather at en-route airports airport, weather below dispatch requirements, temporary airport conditions and other weather related events. The certificate holder must establish the criteria to be used to decide what extreme weather precludes using an airport.
(c)For 240-Minute ETOPS in the Pacific Ocean Area north of the Equator, exception criteria includes political or military concern, volcanic activity, airport weather below dispatch requirements, temporary airport conditions and other weather related events. Note: Certificate holders are required to maintain a record of their use of that authority for tracking purposes. When an operator is granted such authority, they may exercise this authority based on the conditions above without limit. There is currently no requirement for any specific format for reporting 207- and 240-minute track usage. d. En Route.
(1)Pilot-in-Command Authority. No part of this AC is to be interpreted as reducing the PIC's joint responsibility for determining that the flight can be safely conducted as planned before release. None of the guidance in this AC may be interpreted in any way to prejudice or limit the final authority and responsibility of the PIC for the safe operation of the airplane.
(2)Potential Diversion Airports after Departure.
(a)After departure, designated ETOPS alternates must continue to meet the requirements of original dispatch, except that the weather must remain at, or above, operating minima (§ 121 .631(c)). The pilot and dispatcher should monitor the airports within the ETOPS area of operation that could be used for diversion for deterioration in the weather and limitations in the availability of facilities and services that would render an airport unsuitable for landing in the event of a diversion. During the course of the flight, the flight crewmembers should be informed of significant changes in conditions at the designated ETOPS alternates, particularly those conditions that would render an airport unsuitable for landing and improvement in airport weather to conditions above operating minima.
(b)In most ETOPS operations, the ETOPS entry point is a significant distance from the point of dispatch. To ensure the capability and availability of an en route alternate to support any en route contingencies, before an ETOPS flight proceeds beyond the ETOPS entry point, the certificate holder must evaluate the weather from the earliest to latest time of arrival at the designated ETOPS alternates, as well as the landing distances, airport services, and facilities. If any conditions, such as weather below landing minima, are identified that would preclude a safe approach and landing, the PIC should be notified and an additional ETOPS alternate selected where a safe approach and landing can be made. A revised flight plan should include information on the newly designated ETOPS alternates within the authorized area of operation. Information on the weather and capabilities (that is, emergency response, approach aids, navigation facilities, and airport infrastructure) of potential ETOPS alternates in the authorized area of operations should be available to the PIC. The maximum diversion time, determined by the newly selected ETOPS alternate, must not exceed the authorized ETOPS maximum diversion time listed in the certificate holder's OpSpec for that airplane and operating area that could have been applied at original dispatch.
(c)An operator is not required to turn back once the flight has gone beyond the ETOPS entry point if an unexpected worsening of the weather at the designated ETOPS alternate airport drops the airport below operating landing minima (or any other event occurs that makes the runway at that airport unusable). The FAA requires that the pilot-in-command, in coordination with the dispatcher if appropriate, will exercise judgment in evaluating the situation and make a decision as to the safest course of action. This may be a turn back, re-routing to another ETOPS alternate airport, or continuing on the planned route. Should the operator become aware of a potential weather problem prior to the airplane entering the ETOPS stage of the flight, the rule allows the operator to designate a different alternate airport at the ETOPS entry point in order to continue the flight.
(3)Engine Failure.
(a)Section 121.565 requires the PIC of a two-engine airplane with one engine inoperative to land at the nearest suitable airport where, in the PIC's judgment after considering all relevant factors, a safe landing can be made. This determination is especially critical for ETOPS where the availability of suitable airports may be limited and the diversion decision is therefore more critical. The following is a list of some, but not all, factors that may be relevant in determining whether or not an airport is suitable, and are consistent with the ETOPS principle of protecting the diversion once it occurs: • Airplane configuration, weight, systems status, and fuel remaining • Wind and weather conditions en route at the diversion altitude • Minimum altitudes en route to the diversion airport • Fuel burn to the diversion airport • Airport's nearby terrain, weather, and wind • Availability and surface condition of runway • Approach navigation aids and lighting available • Rescue and fire fighting services
(RFFS)at the diversion airport • Facilities for passenger and crewmember disembarkation, and accommodations • PIC's familiarity with the airport • Information about the airport provided to the PIC by the certificate holder.
(b)When operating a two-engine airplane with one engine inoperative, none of the following factors should be considered sufficient justification to fly beyond the nearest suitable airport: • The fuel supply is sufficient to fly beyond the nearest suitable airport; • Passenger accommodation other than passenger safety; • Availability of maintenance and/or repair resources.
(c)If no more than one engine is shut down on an airplane that has three or more engines, § 121.565 permits the PIC to fly beyond the nearest suitable airport in point of time if the PIC determines that doing so is as safe as landing at the nearest suitable airport. In making a decision to fly beyond the nearest suitable airport, the PIC should consider all relevant factors and, in addition, consider the possible difficulties that may occur if the flight is continued beyond the nearest suitable airport. When an airplane with more than two engines bypasses a suitable alternate, the PIC must carefully weigh the risk associated with the next possible failure, which could complicate or compound the current engine inoperative condition. The next possible failure could be a system failure or another engine failure, which in either case, would affect crew workload and their possible success in completing the associated abnormal approach and landing procedures. It is even possible that a contingency outside of the realm of a system failure, such as a passenger illness, could compound the crew's workload normally associated with the current failure condition.
(4)System Failure/Partial Failure.
(a)During ETOPS, the limited availability of diversion airports and extended diversion distances require that the impact of a system failure or partial failure be carefully evaluated. This should include a careful assessment of remaining systems and overall operational capability. Time permitting, full use should be made of the information available through the certificate holder's dispatch facility and a determination made by the PIC as to the plan for the safe continuation of the flight, that is whether it is safer to divert and land or to continue as planned under the circumstances.
(b)If, as a result of reevaluating airplane systems, a change in flight plan is required, the PIC should be provided revised flight plan information and an update of conditions, including weather conditions at designated ETOPS alternates. Dispatch should advise the flight crewmembers of additional airports on the planned route of flight that could be used for diversion. In no case may the maximum approved diversion authority of the operation be exceeded.
(5)Other Diversion Scenarios. During ETOPS an airplane may divert for reasons other than engine or systems failure such as medical emergencies, onboard fire, or decompression. When considering the nature of the emergency and the possible consequences to the airplane, passengers and crew will dictate the best course of action suitable to the specific en route contingency. The flight crew must decide on the best course of action based on all available information. The ETOPS Alternate Airports required by § 121.624 and designated for a particular flight provide one option to the PIC. However, these ETOPS alternates may not be the only airports available for the diversion and nothing in this guidance in any way limits the authority of the pilot-in-command. e. ETOPS Procedures Documentation.
(1)The certificate holder should develop unique ETOPS flight crew procedures for each of the flight operations requirements discussed in this section. These procedures should be contained in the applicable pilot flight manual. The pilot flight manual should also contain procedural information necessary to interface with ETOPS maintenance requirements such as; • Fuel crossfeed valve operational check (if applicable) • Special ETOPS MEL requirements • APU in-flight start procedures (if applicable) • Engine Condition Monitoring
(ECM)data recording procedures • In-flight verification of ETOPS significant systems
(2)The initial pilot flight manual ETOPS section and each revision must be submitted to the CHDO and approved before being adopted. *304. Flight Operations Training Requirements.* a. ETOPS Unique Requirements. The certificate holder's approved training program for ETOPS should include training that describes the unique aspects of ETOPS. That training should include, but not be limited to:
(1)Diversion Decision Making. The certificate holder's training program should prepare flight crewmembers to evaluate probable propulsion and airframe systems malfunctions and failures. The goal of this training should be to establish flight crewmember competency in dealing with the most probable operating contingencies.
(2)Specific ETOPS Requirements. The certificate holder's ETOPS training program should provide and integrate training for flight crewmembers and dispatchers (if applicable), as listed below. The FAA will periodically evaluate a cross-section of these items.
(a)Flight planning, including contingency data, that is engine failure, decompression, and diversion equal time point.
(b)Flight progress monitoring and fuel tracking.
(c)Operational restrictions associated with dispatch under the minimum equipment list (MEL).
(d)Non-normal procedures including: 1. Abnormal and emergency procedures. 2. Systems failures and remaining airplane capability as it relates to the decision to divert or to continue. 3. Diversion. 4. Crewmember incapacitation. 5. A simulated approach and missed approach with only an alternate power source available, if the loss of two main alternating current electrical power sources with no APU electrical source available results in significant degradation of instrumentation to either pilot.
(e)Use of emergency equipment associated with ETOPS operations, including cold weather gear and SATCOM.
(f)Procedures to be followed in the event that there is a change in conditions at an ETOPS alternate listed on the dispatch/flight release that would preclude a safe approach and landing.
(g)Procedures to be followed in the event that there is a change in conditions at other potential en route diversion airports that would preclude a safe approach and landing.
(h)Understanding and effective use of approved additional or modified equipment required for ETOPS.
(i)Fuel quantity comparison: The certificate holder's training program should identify fuel management procedures to be followed during the en route portion of the flight. These procedures should provide for an independent crosscheck of fuel quantity indicators, for example, fuel used, subtracted from the total fuel load, compared to the indicated fuel remaining.
(j)Fuel management: Accounting for discrepancies between planned fuel remaining and actual fuel remaining for example estimated time of arrival ahead of or behind plan, gross weight, and/or altitude differences.
(k)Flight crew procedures unique to ETOPS as listed above in the paragraph 303(e).
(3)Passenger Recovery Plan. The certificate holder must provide training to the flight crewmembers and dispatchers relative to their perspective roles in the certificate holder's passenger recovery plan (§ 121.415). b. Check Airman Used in ETOPS. The certificate holder must designate check airmen specifically for ETOPS. The objective of the ETOPS check airman program should be to ensure standardized flight crewmember practices and procedures and also to emphasize the special nature of ETOPS. Only airmen with a demonstrated understanding of the unique requirements of ETOPS should be designated as a check airman. c. Review of Training Programs and Operating Manuals.
(1)The purpose of the review is to verify the adequacy of information provided to training programs and operating manuals. The FAA will use the information resulting from these reviews as the basis for modification or updating flight crewmember training programs, operating manuals, and checklists, as necessary.
(2)The FAA will also continually review in-service experience of systems significant to ETOPS. The review includes system reliability levels and individual event circumstances, including crewmember actions taken in response to equipment failures or loss of capabilities. Chapter 4. Applications to Conduct ETOPS *400. ETOPS Qualifications.* The unique nature of ETOPS necessitates an evaluation of these operations to ensure that the certificate holder's proposed programs are effective. The FAA will review the certificate holder's documentation and training programs to validate that they are appropriate for ETOPS. To receive approval to conduct ETOPS the certificate holder must satisfy the following conditions: a. Airplane. The specified airplane-engine combination listed in the certificate holder's application must have been certificated to the airworthiness standards of transport category airplanes and must be approved for ETOPS. Guidance for airplane ETOPS type design can be found in AC 25.1535-1 and § 121.162.
(1)Two-Engine. Airplane-engine combinations already approved for ETOPS under previous FAA guidance can continue to be used in ETOPS operations under part 121. No re-certification under § 25.1535 is required. Two-engine airplanes with existing type certificates on February 15, 2007, may be approved for up to 180-minutes ETOPS without meeting requirements for fuel system pressure and flow, low fuel alerting, and engine oil tank design contained in § 25.1535.
(2)More than Two Engines. Airplanes with more than two engines that are to be used in ETOPS and are manufactured prior to February 17, 2015, may operate in ETOPS without type design approval under the revised § 25.1535. Airplanes with more than two engines manufactured on or after February 17, 2015, must meet the requirements of ETOPS type design. b. Flight Operations and Maintenance Requirements. The certificate holder must show compliance with the flight operations requirements discussed in paragraph 303 and the maintenance requirements discussed in paragraph 301. c. Training Requirements. The certificate holder must show that it has trained its personnel to achieve competency in ETOPS and should show compliance with the flight operations and maintenance training requirements discussed in paragraphs 302 and 304. d. Before the FAA grants ETOPS operational approval to an applicant for two-engine ETOPS, the certificate holder must be able to demonstrate the ability to achieve and maintain the level of propulsion system reliability that is required for the ETOPS-approved airplane-engine combination to be used (Appendix P to Part 121, section I. Paragraph (a)). The certificate holder must also demonstrate that it can operate the particular airframe and other airplane systems at levels of reliability appropriate for the intended operation. This can be achieved directly by a successful in-service operational history or by successfully validating all the required ETOPS processes according to the Accelerated ETOPS Application Method in Appendix 3 of this AC. e. An applicant for an initial operating certificate who is applying for ETOPS authority at entry into service under the Accelerated ETOPS Application method must comply with the same requirements for certificate holders outlined in this AC. It should be understood that validation of an applicant with no previous operational experience should be more robust than would be necessary for a certificate holder with operational experience. As is the case for all Accelerated ETOPS approvals, the Director, Flight Standards Service must be satisfied that the applicant can operate to the standards expected of an experienced ETOPS operator from the first day of service. *401. Application for ETOPS Authorization.* a. Any certificate holder wishing to obtain an ETOPS authorization must submit an application with all supporting data to their local CHDO office. This application will be for a specific airplane-engine combination and should address all the regulatory requirements for ETOPS. The certificate holder may follow the guidance found in this AC to complete the application. The application should be submitted at least 60 days prior (6 months for the Accelerated ETOPS method of application) to the proposed start of extended range operation with the specific airplane-engine combination. b. Two-Engine Airplanes.
(1)Up to 180-Minute ETOPS. An applicant requesting ETOPS up to 180 minutes for two-engine operations may select one of the following two application methods best suited to their proposed operation (See Appendix 3):
(a)In-service experience method, or
(b)Accelerated ETOPS method.
(2)ETOPS beyond 180 Minutes, Up to and Including 240 Minutes. The FAA grants approval for ETOPS beyond 180 minutes only to certificate holders with existing 180-minute ETOPS operating authority for the airplane-engine combination to be operated in the application. There is no minimum in-service time requirement for the 180-minute ETOPS operator requesting ETOPS approval beyond 180 minutes. The determination by the Director, Flight Standards Service to grant ETOPS approval is the same as for all ETOPS authorities.
(3)ETOPS beyond 240 Minutes. This authority is only granted to operators of two-engine airplanes between specific city pairs. The certificate holder must have been operating at 180 minute or greater ETOPS authority for at least 24 consecutive months, of which at least 12 consecutive months must be at 240-minute ETOPS authority with the airplane-engine combination in the application. c. Passenger-Carrying Airplanes with More than Two Engines. There are no minimum in-service experience criteria for certificate holders requesting ETOPS beyond 180 minutes for operations with more than two engines. Those applicants will request approval under the accelerated ETOPS method. *402. ETOPS Authorities.* a. ETOPS with Two-Engine Airplanes. An applicant for two-engine ETOPS may seek approval for extended operations by seeking one of the following ETOPS approvals best suited to their proposed operations (see Appendix 2):
(1)75-Minute ETOPS in the Caribbean/Western Atlantic Area or in other areas.
(2)90-Minute ETOPS in Micronesia.
(3)120-Minute ETOPS.
(4)138-Minute ETOPS. Such approvals are granted to current 180-minute ETOPS operators, or as an extension of authority to operators with only 120-minute ETOPS approval.
(5)180-Minute ETOPS.
(6)207-Minute ETOPS in the North Pacific Area of Operation.
(7)240-Minute ETOPS. Approvals are granted at this level based on the particular geographic area applied for with criteria delineated for particular applications.
(8)Beyond 240-Minute ETOPS. Approvals are granted at this level based on particular city pairs. b. ETOPS with Passenger-Carrying Airplanes having More than Two Engines. Certificate holders applying for ETOPS with passenger-carrying airplanes that have more than two engines will receive ETOPS authority based on the FAA approved maximum time limited airplane system restriction of the airplane-engine combination listed in their application and the maximum authority requested. *403. ETOPS Authorization Requirements.* a. All certificate holders of airplanes with two engines, and all certificate holders of passenger-carrying airplanes with more than two engines, operating on ETOPS routes must comply with all the operational and process requirements specified in the ETOPS regulations in part 121 and as discussed in this AC. b. Those certificate holders operating airplanes with more than two engines who choose to follow the recommendations in this AC as a means of compliance with the operating rules, and who, on February 15, 2008, have the authority to operate on specific non-ETOPS routes that under the new definition are classified as ETOPS routes, are not required to re-apply for their specific route authority. However, from February 15, 2008, the certificate holder is required to comply with all the ETOPS flight operational requirements that are described in this AC and must have their ETOPS program and all ETOPS processes approved by their CHDO with concurrence of the Director, Flight Standards Service. The CHDO will amend the certificate holder's OpSpecs when the Director, Flight Standards Service grants a certificate holder approval to conduct operations under § 121.161. c. All ETOPS certificate holders applying for approvals under this section must provide sufficient information with their application to the Manager, Air Transportation Division, AFS 200, through its CHDO and regional FAA office on the following areas of concern in ETOPS:
(1)ETOPS Area of Operations/Airplane Performance. The altitudes and airspeeds used in establishing the ETOPS area of operations for each airplane-engine combination must be shown to permit compliance with the terrain and obstruction clearance requirements of §§ 121.191 and 121.193, as applicable. A speed other than the approved single engine speed may be used as the basis for compliance to §§ 121.191 and 121.193, provided fuel consumption is shown not to exceed the critical fuel scenario associated with the applicable ETOPS equal-time point (§ 121.646), and the time limited system requirements of § 121.633 are not exceeded.
(2)Weather Information System. A certificate holder should substantiate that the weather information system that it uses can be relied on to forecast terminal and en route weather with a reasonable degree of accuracy and reliability in the proposed areas of operation. Such factors as staffing, dispatcher, training, sources of weather reports and forecasts, and when possible, a record of forecast reliability, should be evaluated.
(3)Minimum Equipment List. The certificate holder is required to submit its MEL, designed in accordance with the master minimum equipment list (MMEL), appropriate to the requested level of ETOPS. A certificate holder's MEL may be more restrictive than the MMEL, considering the kind of ETOPS proposed and the equipment and service problems unique to the certificate holder. System redundancy levels appropriate to ETOPS should be reflected in the MMEL. Systems considered to have a fundamental influence on flight safety may include, but are not limited to the following: • Electrical, including battery • Hydraulic • Pneumatic • Flight instrumentation • Fuel • Flight control • Ice protection • Engine start and ignition • Propulsion system instruments • Navigation and communications • Auxiliary power units • Air conditioning and pressurization • Cargo fire suppression • Emergency equipment • Any other equipment necessary for ETOPS.
(4)Public Protection. The provisions for public protection have historically been embedded in § 121.97(ii). Current requirements are found in § 121.97(b)(1)(ii). The definition of “public protection” has been expanded for certificate holders operating ETOPS beyond 180 minutes, and for operations in the North Polar Area and South Polar Area to include facilities at each airport, or in the immediate area, sufficient to protect the passengers and crew from the elements and to see to their welfare. Due to the nature of these operations and the climatic issues involved during the majority of the year, certificate holders undertaking these operations must ascertain that facilities at an airport, or in the immediate area, are sufficiently robust to protect the passengers and crew from the elements, and to see to their welfare during the time required to transport them towards their destination under the passenger recovery plan discussed in paragraph
(5)below.
(5)Passenger Recovery Plan.
(a)A specific passenger recovery plan is required for each ETOPS Alternate Airport used by a certificate holder in ETOPS greater than 180 minutes (OpSpec paragraph B042 (4), ER-OPS En Route Alternate Airports). For operations in the North Polar Area and the South Polar Area a specific passenger recovery plan is required for each designated diversion airport taken from those listed in an operator's operations specifications for this operation (North and South Polar Areas, OpSpec paragraph B055, North Polar Operations [Sic], Polar Operations). For further guidance on passenger recovery plans for these polar diversion airports see paragraph 603(2).
(b)The certificate holder's formal passenger recovery plan should provide a means to validate acceptable levels of infrastructure to provide for an orderly process for the care and well being of the passengers and crewmembers. This infrastructure should include facilities that provide for the physiological needs of the passengers and crewmembers such as continuing safety, food, and shelter. Any list of considerations for the passengers and crewmembers need not be exhaustive. However, in certain cases involving operations in demanding environments, plans may need to be detailed enough to provide for medical care, communications, methods for securing alternative expedited travel, extraction, and other continued travel provisions for the crewmembers and passengers. If the certificate holder proposes to use the airplane capabilities and services as a means to satisfy all or part of the requirements for such a plan, the time-limited capability of appropriate systems should be evaluated and taken into account.
(c)It is generally accepted that any plan that is designed to fully recover the passengers within 48 hours may be viewed as meeting the overall requirement to provide for the care and safety of the passengers and crewmembers. The greatest concern relative to passenger recovery plans is when diversions occur to an airport that is geographically located within an area not normally served by the certificate holder and, more specifically, when the diversion occurs to an en route alternate airport located in a harsh operating environment. A certificate holder with a route system extending over remote areas of the world has a responsibility under the regulations (§ 121.135), to develop a passenger recovery plan in anticipation of the possibility of a diversion to an approved en route alternate airport lying within those remote regions. In these instances, the certificate holder operating on those routes should devise a plan of substance that will outline how it will recover the passengers, crewmembers, and airplane in the event of such a diversion. This plan should be of sufficient detail to demonstrate that the recovery operation can be readily effected, and that the basic needs of the diverted passengers and crewmembers can be provided for in the interim. The plan should address all of the concerns previously listed with specific emphasis on any issues unique to that particular environment. In some environments provisions for shade from the direct sunlight and cooling may be a concern; while in other environments such as polar and sub polar areas, plans should provide for immediate provisions for shelter from the elements, heating, and clothing. After these immediate concerns are addressed, the plan should address provisions for initiating extraction procedures immediately. In all cases a particular alternate airport environment should drive the requirements of the passenger recovery plan and the prioritization of concerns needing to be addressed.
(6)Navigation. The applicant must show the availability of navigation facilities adequate for the operation, taking into account the navigation equipment installed on the airplane, the navigation accuracy required for the planned route and altitude of flight, and the routes and altitudes to the airports designated as ETOPS alternates. Navigation facilities required to ensure a safe approach and landing must be available. Note: Non-terrestrial approaches, e.g., GPS/RNAV, may be utilized if approved in a certificate holder's operating specifications at airports where terrestrial navigation aids, such as NDB or VOR, are not available or operational.
(7)Communications. The certificate holder must show the availability of communications services and facilities for communication with ATC and the dispatch office. Certificate holders operating ETOPS routes must use the most reliable voice-based communications technology available for communications between the flight crew and air traffic services, and the flight crew and the certificate holder per § 121.99. For ETOPS routes further than 180 minutes from adequate airports, a second communication system is required and must be able to provide immediate satellite-based voice communications of landline-telephone fidelity. Rapid and reliable ATC communications are determined by the facilities operated by ATC units in the areas of operations. *404. Validation Flight(s).* Prior to granting ETOPS approval to a certificate holder for operation of a specific airplane-engine combination in an authorized area of operation, the FAA will require actual validation flights on proposed routes that the certificate holder intends to operate within the ETOPS area of operations, designated in the operator's approval request. This is to ensure that the ETOPS flight operations and maintenance programs described in Chapter 3 are capable of supporting those operations. Depending on the certificate holder's level of experience in conducting ETOPS and the routes intended to be used in operations, the FAA will determine the number of validation flights required, the manner in which validation flights may be conducted (revenue with passengers, non-revenue, or cargo only), and any other items requiring validation. If approval is granted to fly the validation flight in revenue service, the operator should be granted appropriate, though temporary or restricted, OpSpecs covering the necessary flight(s). At the successful conclusion of the validation, the CHDO should coordinate with the Director, Flight Standards, amendment and issuance of unrestricted OpSpecs. Certificate holders operating passenger-carrying airplanes with more than two engines who, on the effective date of this AC, have the authority to operate on specific non-ETOPS routes that under the new definition are classified as ETOPS routes, may not be required to conduct an actual validation flight. If the certificate holder can adequately validate that the necessary additional ETOPS processes and procedures are in place, and that they can function appropriately, may be validated by another means satisfactory to the CHDO with concurrence of Director, Flight Standards Service. *405. Required Demonstration on a Validation Flight.* a. The certificate holder should demonstrate, by means of an FAA-witnessed validation flight or flights using the specified airplane-engine combination in its application, that it has the competence and capability to safely conduct and adequately support the intended operation. The CHDO, with the concurrence of the Director, Flight Standards Service, will determine the conditions for each certificate holder's validation flights. This determination will be made on a case-by-case basis following a review of the certificate holder's experience and the proposed operation. This process may require the certificate holder to conduct an actual diversion during the validation flights. b. The following emergency conditions should be demonstrated during the ETOPS validation flights, unless successful demonstration of these conditions has been approved and subsequently witnessed by the FAA in an acceptable simulation prior to the validation flight:
(1)Total loss of thrust of one engine and total loss of engine-generated electrical power, or
(2)Any other condition considered more critical in terms of airworthiness, crewmember workload, or performance risk. c. This simulator demonstration does not alter the certificate holder's requirement to demonstrate the competence and the capability to adequately support the intended operation during the ETOPS validation flight. Chapter 5. FAA ETOPS Approval *500. Final ETOPS Operating Authority.* Following completion of the ETOPS application requirements and before the issuance of operations specifications, the certificate holder's application with supporting data, together with the CHDO's recommendations, should be forwarded through the certificate holder's regional FAA office, to AFS-200 (Washington Headquarters) for review and concurrence. The CHDO's recommendations should include any specific recommendations made by the principal maintenance inspector (PMI), principal avionics inspector (PAI), and principal operations inspector (POI), as appropriate. Following review and concurrence by AFS-200, the validation flights should be conducted in accordance with any additional guidance or recommendations specified in the review and concurrence process. Following the successful completion of the validation flights, the Director, Flight Standards Service, will authorize the CHDO to issue the certificate holder OpSpecs for ETOPS operations. *501. ETOPS OpSpecs.* Those OpSpecs for ETOPS provide authorizations and limitations covering at least the following: a. Approved airplane-engine combinations, b. Current approved CMP standard required for ETOPS, if appropriate, c. Authorized geographic area(s) of operation, d. ETOPS area of operation, e. Airports authorized for use, including alternates and associated instrument approaches and operating minima, f. Approved maintenance and reliability program for ETOPS including those items specified in the type design approved CMP standard, if appropriate, and g. Identification of the airplanes authorized for ETOPS by make, model, serial, and registration number. *502. Changes to Approved ETOPS Operations, Maintenance and Training Procedures.* Following final ETOPS approval, if a certificate holder determines a need to make substantial changes to its ETOPS operations, maintenance and training procedures, it should submit such changes in a timely manner to the CHDO for review and acceptance before incorporation. The certificate holder and its CHDO should negotiate what constitutes a substantial change to allow flexibility and take into consideration a certificate holder's ETOPS experience. What is considered substantial for a new entrant ETOPS certificate holder may be considerably different than for a certificate holder with many years of ETOPS experience. *503. Processes After Receiving ETOPS Authority.* a. The FAA continuously monitors the world fleet average IFSD rate for two-engine ETOPS authorized airplane-engine combinations to ensure that the levels of reliability achieved in ETOPS remain at the required levels. If an acceptable level of reliability in fleet average IFSD is not maintained, or if significant deficiencies or adverse trends are detected in type design (i.e., basic design of the airplane-engine) or in the operation, the FAA may require the airframe and engine manufacturers to develop a plan acceptable to the FAA to address the deficiencies. b. As with all other operations, the CHDO will monitor all aspects of the ETOPS operations it has authorized to the certificate holder to ensure that the levels of reliability achieved in ETOPS operations remain at acceptable levels, and that the operation continues to be conducted safely. c. In the event that an acceptable level of reliability is not maintained, if significant adverse trends exist, or critical deficiencies are detected in the type design or in the conduct of ETOPS operations, the CHDO will:
(1)Alert the appropriate airplane certification office and the airplane evaluation group, when problems associated with airplane design or operations are identified; and
(2)Initiate a special evaluation, impose operational restrictions (if necessary), and ensure that the certificate holder adopts corrective actions to resolve the problems in a timely manner. Chapter 6. Polar Operations *600. Background.* a. In February 2001, in response to several U.S. carriers' plans to conduct north polar operations, the FAA developed a “Polar Policy Letter.” This policy letter documented the requirement for airlines to develop necessary plans in preparation for north polar flights and identified the necessary equipment and airplane configuration requirements for all airplanes regardless of the number of engines. The FAA's intent in issuing the policy letter was to “establish a process that can be applied uniformly to all applicants for polar route authority.” This policy was applied to all operators, and although not ETOPS per se, it required ETOPS-like planning, equipage and operational requirements in these areas. b. During the development of the expanded ETOPS regulations the ARAC recommended that the guidance contained in the Polar Policy letter be incorporated in the ETOPS regulations. It also recommended that these requirements be expanded to the South Polar Region. Although no U.S. certificate holders were operating in the South Polar Area at the time, it was felt that due to similar extremes in remoteness, weather, and terrain, this area should be included in anticipation of future industry growth. c. The FAA agreed with the recommendations of the ARAC and has determined that operating in the polar areas presents operational issues similar to typical ETOPS flights, and as such, the risks associated with this operation can be mitigated by applying planning, operational, and equipage requirements similar to ETOPS and specific procedures applicable to the risks associated with this type of flying. *601. Definition.* The North Polar Area is defined as the entire area north of latitude 78 degrees North, and the South Polar Area is defined as the entire area south of latitude 60 degrees South. *602. Applicability.* Any certificate holder operating an airplane whose route contains any point within the North Polar area or South Polar area as defined in paragraph 601 above, must comply with the requirements of part 121, appendix P, section III. The certificate holder must first determine during the route planning stage if the operation will be ETOPS as defined in § 121.161 and as further discussed in Chapter 2, paragraph 201 of this AC. If the operation is ETOPS the polar requirements of part 121, appendix P and the guidance in this chapter are in addition to any of the applicable ETOPS requirements discussed in Chapter 3, paragraphs 300-304 of this AC. *603. Polar Requirements.* a. The certificate holder applying for authority to fly in the Polar Areas must develop plans in preparation for all polar flights in the North and South Polar Areas. This section documents the added requirements and identifies equipment and airplane configuration requirements in addition to the requirements discussed in Chapter 3, paragraphs 300-304. b. The certificate holder's plan for conducting operations within these areas must include the following elements:
(1)Requirements for Designating Alternates. Certificate holders should designate a set of alternate airports regardless of their distance from the planned route, such that one or more can reasonably be expected to be available in a variety of weather conditions to support a necessary diversion. The flight must have sufficient fuel as required by § 121.646, if applicable, and should be able to make a safe landing and the airplane maneuvered off of the runway at the selected diversion airport. In the event of a disabled airplane following landing, the capability to move the disabled airplane should exist at that airport, so as not to block the operation of any recovery airplane. In addition, those airports designated for use should be capable of protecting the safety of all personnel by being able to:
(a)Offload the passengers and crewmember in a safe manner during adverse weather conditions;
(b)Provide for the physiological needs of the passengers and crewmembers for the duration of the stay at the diversion airport until safe evacuation; and
(c)Safely extract passengers and crewmembers as soon as possible (execution and completion of the passenger recovery is expected as soon as possible within 48 hours following diversion).
(2)Passenger Recovery Plan. Except for supplemental all-cargo operations, each certificate holder conducting operations in the polar areas must have a passenger recovery plan at designated diversion airports as discussed in paragraph
(1)above and in Chapter 4, paragraph 403c(5). The passenger recovery plan in these Polar Regions should also include special consideration for the possibility of extreme cold weather, limited passenger facilities, and the need to initiate passenger recovery without delay.
(3)Fuel Freeze Strategy and Monitoring. The certificate holder must have a fuel-freeze strategy and procedures for monitoring fuel freezing. The certificate holder may wish to develop a fuel freeze strategy and monitoring program (e.g., alternate fuel freeze point temperature determination based on actual measurements of uploaded fuel), in lieu of using the standard minimum fuel freeze temperatures for specific types of fuel used. In such cases, the certificate holder's fuel freeze analysis and monitoring program for the airplane fuel load is subject to FAA approval. The certificate holder should have procedures established that require coordination between maintenance, dispatch, and assigned flight crewmembers to convey the determined fuel freeze temperature of the fuel load on board the airplane.
(4)Communication Capability. The certificate holder must have effective voice communications and/or data link capability for all portions of the flight route. The requirements of § 121.99 apply to all ETOPS operations in these areas. For all other operations, company communications may be accomplished using HF voice, HF data link, satellite communication (SATCOM) voice or SATCOM data link. Because of the limitations of VHF and satellite-based voice communications, ATC communications will probably require high frequency
(HF)voice over portions of these routes. The FAA recognizes that SATCOM may not be available for short periods during flight over the Poles. Communication capability with HF radios also may be affected during periods of solar flare activity. The certificate holder should consider predicted solar flare activity and its effect on communications for each flight that is dispatched for operations into these areas.
(5)MEL Considerations. The certificate holder must amend its MEL to reflect the items that must be operational for these operations. For ETOPS flights, all MEL restrictions for the applicable ETOPS operations apply. Before receiving FAA authority to conduct these operations, all certificate holders should review its MEL for consideration of the dispatch availability of the following systems/equipment:
(a)Fuel quantity indicating system (FQIS), including the fuel tank temperature indicating system;
(b)APU (when the APU is necessary for an airplane to comply with ETOPS requirements), including electrical and pneumatic supply to its designed capability,
(c)Autothrottle system;
(d)Communication systems relied on by the flight crewmember to satisfy the requirement for communication capability; and
(e)Except for all-cargo operations, an expanded medical kit to include automated external defibrillators (AED).
(6)Training. The certificate holder should address the following training requirements in its approved training programs:
(a)QFE/QNH and meter/feet conversions (required for flight crewmember and dispatcher training);
(b)Training requirements for fuel freeze, to include maintenance, dispatch, and flight crewmember training (special curriculum segments);
(c)General route-specific training on weather patterns;
(d)Relevant airplane system limitations (for example fuel temperature limits);
(e)Role of maintenance role in providing airplane systems capability information to dispatch and flight crewmember to aid the PIC in diversion decision making;
(f)Crewmember training in the use of the cold weather anti-exposure suit,
(g)For dispatch and crewmember considerations during solar flare activity, the certificate holder must be aware of the content of AC 120-52, Radiation Exposure of Certificate Holder Crewmembers, and provide crewmember training as stated in AC 120-61, Crewmember Training on In-Flight Radiation Exposure; and
(h)Training for flight crewmembers and dispatcher roles in the certificate holder's passenger recovery plan.
(7)Crew Exposure to Radiation during Solar Flare Activity. The certificate holder must provide a plan for mitigating crew exposure to the effects of solar flare activity at the altitudes and latitudes expected in such operations.
(8)Special Equipment for Polar Operations. A minimum of two cold weather anti-exposure suits must be on board each airplane, so that outside coordination at a diversion airport with extreme climatic conditions can be accomplished safely. A short term MEL relief for this item may be granted provided the certificate holder has arranged ground support provisions for providing such protective clothing at alternate airports. The FAA may also relieve the certificate holder from this requirement during those periods of the year when the seasonal temperature makes the equipment unnecessary. *604. Validation before Approval.* a. Prior to receiving an authorization to conduct polar operations a certificate holder must conduct an FAA observed validation flight. As part of polar area validation, the certificate holder must exercise its passenger recovery plan. Adequate and timely notification must be made to the FAA before the validation flight so that any necessary coordination between the FAA inspector and personnel at the selected diversion airport can be completed. The inspector will witness the effectiveness and adequacy of the following areas of operation:
(1)Communications,
(2)Coordination,
(3)Facilities,
(4)Accuracy of Notices to Airman and weather information, and
(5)Operability of ground equipment during the simulated diversion. b. The exercise of the certificate holder's passenger recovery plan may be completed before the validation flight. The FAA will not consider a request by a certificate holder to conduct the validation flight in a passenger revenue status if the certificate holder's passenger recovery plan has not been previously and satisfactorily demonstrated to the FAA. If the certificate holder elects to demonstrate its passenger recovery plan as part of and during its validation flight, the flight may not be conducted in a passenger revenue status. However, the carriage of cargo revenue is permissible in this case and is encouraged for airplane weight and balance purposes. *605. FAA Polar Area Approval.* Certificate holders must obtain FAA approval to conduct these operations and to operate in any area of magnetic unreliability. The FAA will grant such authority based on a specific airplane-engine combination. Any certificate holder wishing to obtain Polar authorization must submit an application with all supporting data to their local CHDO office. This application must address all the regulatory requirements for Polar operations and may follow the guidance as found in this AC. The application should be submitted at least 60 days prior to the proposed start of polar operations with the specific airplane-engine combination. FAA approval is granted by an amendment to the certificate holder's OpSpecs. Appendix 1. Definitions The following definitions are applicable to ETOPS. They include definitions from Title 14 of the Code of Federal Regulations (14 CFR) parts 1 and 121, as well as terms that are used within the context of this AC with respect to ETOPS: 1. Adequate Airport. An airport that an airplane operator may list with approval from the FAA because that airport meets the landing limitations of part 121, § 121.197 and is either, an airport that meets the requirements of 14 CFR part 139, subpart D, excluding those that apply to aircraft rescue and firefighting service, or a military airport that is active and operational. Airports without specific part 139 approval ( *i.e.* , outside FAA jurisdiction), may be considered adequate provided that they are determined to meet the equivalent standards and intent of part 139 subpart D. 2. Configuration, Maintenance, and Procedures
(CMP)Document. A document approved by the FAA that contains minimum configuration, operating, and maintenance requirements, hardware life-limits, and Master Minimum Equipment List
(MMEL)constraints necessary for an airplane-engine combination to meet ETOPS type design approval requirements. 3. Dual Maintenance. Dual maintenance means maintenance on the “same” ETOPS significant system. Dual maintenance is maintenance action performed on the same element of identical, but separate ETOPS Significant Systems during a scheduled or unscheduled maintenance visit. Dual maintenance on “substantially similar” ETOPS significant systems means maintenance actions performed on engine-driven components on both engines during the same maintenance visit. 4. Equal-Time Point (ETP). A point on the route of flight where the flight time, considering wind, to each of two selected airports is equal. 5. ER. An abbreviation used in the MMEL and in the minimum equipment list
(MEL)of some certificate holders to indicate ETOPS. As used in this AC, any ETOPS MMEL/MEL restrictions applicable to ETOPS. 6. ETOPS Alternate Airport. An adequate airport listed in the certificate holder's operations specifications (OpSpecs) that is designated in a dispatch or flight release for use in the event of a diversion during ETOPS. This definition applies to flight planning and does not in any way limit the authority of the pilot in command during flight. 7. ETOPS Area of Operation. For turbine-engine-powered airplanes with two engines an area beyond 60 minutes from an adequate airport, or with more than two engines in passenger-carrying operations, an area beyond 180 minutes from an adequate airport, and within the authorized ETOPS maximum diversion time approved for the operation being conducted. An ETOPS area of operation is calculated at an approved one-engine inoperative cruise speed under standard conditions in still air. 8. ETOPS Entry Point. The first point on the route of an ETOPS flight; determined using a one-engine-inoperative cruise speed under standard conditions in still air that is more than 60 minutes from an adequate airport for airplanes with two engines, and more than 180 minutes from an adequate airport for passenger-carrying airplanes with more than two engines. 9. ETOPS Significant System. An airplane system, including the propulsion system, the failure or malfunctioning of which could adversely affect the safety of an ETOPS flight, or the continued safe flight and landing of an airplane during an ETOPS diversion. Each ETOPS significant system is either an ETOPS group 1 significant system or an ETOPS group 2 significant system. a. An ETOPS group 1 Significant System:
(1)Has fail-safe characteristics directly linked to the degree of redundancy provided by the number of engines on the airplane;
(2)Is a system, the failure or malfunction of which could result in an in-flight shutdown (IFSD), loss of thrust control, or other power loss;
(3)Contributes significantly to the safety of an ETOPS diversion by providing additional redundancy for any system power source lost as a result of an inoperative engine; and
(4)Is essential for prolonged operation of an airplane at engine inoperative altitudes. b. An ETOPS group 2 significant system is an ETOPS significant system that is not an ETOPS group 1 significant system. 10. ETOPS-Qualified Personnel. A person performing maintenance for the certificate holder, who has satisfactorily completed the certificate holder's ETOPS training program. 11. Extended Operations (ETOPS). An airplane flight operation during which a portion of the flight is conducted beyond 60 minutes from an adequate airport for turbine-engine-powered airplanes with two engines, and beyond 180 minutes for turbine-engine-powered passenger-carrying airplanes with more than two engines. This distance is determined using an approved one-engine-inoperative cruise speed under standard atmospheric conditions in still air. 12. Flight-by-Flight Exception. The application of a greater ETOPS maximum diversion authority under specific, limited circumstances, as defined in this AC, when a flight cannot be planned on the preferred route within an authorized lesser diversion time. 13. In-Flight Shutdown (IFSD). For ETOPS only, when an engine ceases to function (when the airplane is airborne) and is shut down, whether self induced, flight crew initiated or caused by an external influence. The FAA considers IFSD for all causes, such as flameout, internal failure, flight crew initiated shutdown, foreign object ingestion, icing, inability to obtain or control desired thrust or power, and cycling of the start control; however briefly, even if the engine operates normally for the remainder of the flight. This definition excludes the airborne cessation of the functioning of an engine when immediately followed by an automatic engine relight and when an engine does not achieve desired thrust or power but is not shut down. 14. Maximum Diversion Time. For the purposes of ETOPS in § 121.161 and related ETOPS regulations, maximum diversion time (for example 120 minutes, 180 minutes, 240 minutes, and, beyond 240 minutes) is the longest diversion time authorized for a flight under the operator's ETOPS authority. It is calculated under standard conditions in still air at a one-engine-inoperative cruise speed. 15. One-Engine-Inoperative Cruise Speed. For the purposes of those sections of part 121 applicable to ETOPS, the one-engine-inoperative cruise speed is a speed within the certified operating limits of the airplane that is specified by the certificate holder and approved by the FAA for calculating required fuel reserves needed to account for an inoperative engine, or determining whether an ETOPS alternate is within the maximum diversion time authorized for an ETOPS flight. Note: The following areas (16-18) are defined for the purposes of those sections of part 121 applicable to ETOPS: 16. North Pacific (NOPAC). The North Pacific Air Traffic Service
(ATS)routes and adjacent airspace between Anchorage and Tokyo Flight Information Regions (FIR). 17. North Pacific Area of Operations. Pacific Ocean areas north of 40° North latitudes including NOPAC ATS routes, and published Pacific Organized Track System (PACOTS) tracks between Japan and North America. (For the purposes of this definition, “North America” includes the countries of Canada, the United States, and Mexico.) 18. Polar Areas. a. North Polar Area. The entire area north of 78° North latitude. b. South Polar Area. The entire area south of 60° South latitude. 19. Process. A series of steps or activities that are accomplished in a consistent manner to ensure a desired result is attained on an ongoing basis. 20. Proven Process. A process is considered to be proven when the following elements are developed and implemented: a. Definition and documentation of process elements. b. Definition of process related roles and responsibilities. c. Procedures for validation of process or process elements to include: • Indications of process stability/reliability. • Parameters to validate process and monitor (measure) success. • Duration of necessary evaluation to validate process. d. Procedure for follow-up in-service monitoring to assure the process remains reliable and stable. EN17SE07.009 EN17SE07.010 EN17SE07.011 EN17SE07.012 EN17SE07.013 EN17SE07.014 EN17SE07.015 EN17SE07.016 EN17SE07.017 EN17SE07.018 BILLING CODE 4910-13-P Appendix 3. ETOPS Approval Methods The two different approval methods available for a certificate holder's use are described in this appendix. 1. IN-SERVICE EXPERIENCE METHOD (TWO-ENGINE ETOPS FOR UP TO 180-MINUTE ETOPS). a. General.
(1)An in-service experience program is one way of gaining ETOPS operational approval. As a prerequisite to obtaining any operational approval, the certificate holder should show that an acceptable level of propulsion system reliability has been achieved in service by the world fleet for that particular airplane-engine combination. The candidate certificate holder also should obtain sufficient maintenance and operation familiarity with the particular airplane-engine combination. Each certificate holder requesting approval to conduct ETOPS by the in-service method should have operational experience appropriate to the operation proposed.
(2)This appendix contains guidelines for requisite in-service experience. These guidelines may be reduced or increased following review and concurrence on a case by case basis by the Director, Flight Standards Service. Any reduction or increase in in-service experience guidelines will be based on an evaluation of the certificate holder's ability and competence to achieve the necessary reliability for the particular airplane-engine combination in ETOPS. For example, a reduction in in-service experience may be considered for a certificate holder who can show extensive in-service experience with a related engine on another airplane that has achieved acceptable reliability. In contrast, an increase in in-service experience may be considered for those cases where heavy maintenance has yet to occur and/or abnormally low number of takeoffs has occurred. b. Specific Approvals.
(1)75- and 90-Minute Operation. Consideration may be given to the approval of 75-minute and 90-minute ETOPS for certificate holders with minimal or no in-service experience with the airplane-engine combination. This determination considers such factors as the proposed area of operations, the certificate holder's demonstrated ability to successfully introduce airplanes into operations, and the quality of the proposed maintenance and operations programs.
(2)120-Minute Operation. Each certificate holder requesting approval to conduct ETOPS with a maximum diversion time (in still air) of 120 minutes should have 12 consecutive months of operational in-service experience with the specified airplane-engine combination. In-service experience guidelines may be increased or decreased by the Director, Flight Standards Service.
(3)180-Minute Operation.
(a)Each certificate holder requesting approval to conduct ETOPS with a maximum diversion time (in still air) of 180 minutes should have previously gained 12 consecutive months of operational in service experience with the specified airplane-engine combination in conducting 120-minute ETOPS. In-service experience guidelines may be reduced or increased by the Director, Flight Standards Service. Likewise, the substitution of in-service experience, which is equivalent to the actual conduct of 120-minute ETOPS operations, also will be established by the Director, Flight Standards Service, on a case by-case basis.
(b)Before approval, the certificate holder's capability to conduct operations and implement effective ETOPS programs in accordance with the criteria detailed in this AC will be examined. Only certificate holders who have demonstrated capability to successfully conduct a 120-minute program will be considered for approval beyond 120 minutes. Approval will be given on a case-by-case basis for an increase to their area of operation beyond 120 minutes. The dispatch limitation will be a maximum diversion time of 180 minutes to an ETOPS alternate at an approved one-engine-inoperative speed (under standard conditions in still air). c. Requesting Approval. A certificate holder requesting approval under Title 14 of the Code of Federal Regulations (14 CFR) part 121, § 121.161 for ETOPS under this method should submit the request with the required supporting data to its CHDO at least 60 days before the proposed start of ETOPS operation with the specific airplane-engine combination. In considering an application from a certificate holder to conduct ETOPS, the CHDO should assess the certificate holder's overall safety record, past performance, flight crewmember training, and maintenance programs. The data provided with the request should substantiate the certificate holder's ability and competence to safely conduct and support these operations and should include the means used to satisfy the considerations outlined in this paragraph. 2. ACCELERATED ETOPS METHOD (UP TO 180-MINUTE ETOPS FOR TWO-ENGINE AIRPLANES AND FOR ALL ETOPS FOR PASSENGER-CARRYING AIRPLANES WITH MORE THAN TWO ENGINES). This section describes the means by which a certificate holder may initiate ETOPS operations when the certificate holder establishes the processes necessary for successful and reliable ETOPS operations and proves to the FAA that such processes can be successfully applied throughout the applicant's ETOPS operations. This may be achieved by thorough documentation and analysis of processes and process validation, or demonstration on another airplane/validation (as described under process validation in this appendix, below) or a combination of these processes. a. ETOPS Processes. The airplane-engine combination for which the certificate holder is seeking accelerated ETOPS operational approval must be ETOPS type design-approved (except for two-engine ETOPS at 75- and 90-minute authorizations and for passenger-carrying airplanes with more than two engines manufactured prior to March 17, 2015) and determined to be operating at a satisfactory level of reliability before commencing ETOPS. The certificate holder seeking accelerated ETOPS operational approval must demonstrate to the FAA that it has an ETOPS program in place that consists of all the following applicable ETOPS process elements:
(1)The process elements defined as the ETOPS maintenance and operations requirements of Chapter 3, paragraphs 301-304.
(2)Documentation of the following elements as appropriate:
(a)Technology new to the certificate holder and significant difference in primary and secondary power (engines, electrical, hydraulic, and pneumatic) systems between the airplanes currently operated and the two-engine airplane for which the certificate holder is seeking ETOPS operational approval.
(b)The plan to train flight and maintenance personnel to the differences identified in the maintenance subparagraph above.
(c)The plan to use proven manufacturer-validated training and maintenance and operations manual procedures relevant to ETOPS for the two-engine airplane for which the certificate holder is seeking accelerated ETOPS operational approval.
(d)Changes to any previously proven validated training, maintenance or operations manual procedures used in previous non-ETOPS operations or in previous ETOPS with a different airplane-engine combination and/or geographic area of operations. Depending on the nature and extent of any changes, the certificate holder may be required to provide a plan for validating such changes.
(e)The validation plan for any additional certificate holder unique training and procedures relevant to ETOPS.
(f)Details of any ETOPS program support from the airframe manufacturer, engine manufacturer, other certificate holders or any other outside person.
(g)The control procedures when maintenance or flight dispatch support is provided by an outside person as described above. b. Process Validation Methodology.
(1)Paragraph
(a)identifies those process elements that should be proven before ETOPS authority is granted by the FAA under the accelerated ETOPS approval program. For a process to be considered proven the process should first be defined. Typically, this will include a flow chart showing the various elements of the process. Roles and responsibilities of the personnel who will be managing this process should be defined including any training requirement. The certificate holder should demonstrate that the process is in place and functions as intended. The certificate holder may accomplish this by thorough documentation and analysis, or by demonstrating on an airplane, that the process works and consistently provides the intended results. The certificate holder should define the necessary evaluation duration to validate the process and also show that a feedback loop exists to illustrate need for revision of the process, if required, based on in-service experience.
(2)Normally the choice to use or not to use demonstration on an airplane as a means of validating individual processes should be determined by the certificate holder. Process validation may be done with the airframe-engine combination that will be used in ETOPS. It can also be done with a different airplane type from that for which ETOPS approval is being sought, including an airplane with more than two engines, if it can be shown that the particular airplane-engine combination in the certificate holder's ETOPS program is not necessary to validate a process. With sufficient preparation and dedication of resources, such validation may not be necessary to assure processes that produce acceptable results. However, if the plan proposed by the certificate holder to prove processes is determined by the FAA to be inadequate or the plan does not produce acceptable results, validation of the processes with an airplane will be required.
(3)If a certificate holder currently is conducting ETOPS with a different airplane-engine combination, it may be able to document that it has proven ETOPS processes in place with only minimal further validation required. If the certificate holder has similar non-ETOPS operations and can simulate or demonstrate proven ETOPS processes in such operations, credit can be given for such successful evaluations. In either case, the certificate holder should demonstrate that the means are in place to assure equivalent results with the airplane-engine combination being proposed for ETOPS operational approval. The following elements may aid in justifying a reduction in the validation requirement of ETOPS processes:
(a)Experience with other airframes and/or engines,
(b)Previous ETOPS experience,
(c)Experience with long range, overwater operations with two-, three-, or four-engine airplanes, and
(d)Experience gained by flight crewmembers and maintenance and flight dispatch personnel while working with other ETOPS-approved certificate holders. c. Application for Accelerated ETOPS Program. The certificate holder seeking accelerated ETOPS operational approval should submit an Accelerated ETOPS operational approval plan to the FAA six months before the proposed start of ETOPS. This will provide sufficient time for the certificate holder and the FAA to validate the effectiveness of all ETOPS process elements (“proven process”). The certificate holder's application for ETOPS should—
(1)State the ETOPS authority requested. Define proposed routes and the ETOPS diversion time necessary to support these routes and the airplane-engine combination to be flown.
(2)Define processes and related resources being allocated to initiate and sustain ETOPS operations in a manner that demonstrates commitment by management and all personnel involved in ETOPS maintenance and operational support.
(3)Provide a documented plan for compliance with requirements listed in this section for Accelerated ETOPS.
(4)Define Review Gates. A review gate is a milestone-tracking plan to allow for the orderly tracking and documentation of specific provisions of this Appendix. Each review gate should be defined in terms of the process elements to be validated. Normally, the review gate process will start six months before the proposed start of ETOPS and should continue until at least six months after the start of ETOPS. The review gate process will help ensure that the proven processes comply with the provisions of this AC and are capable of continued ETOPS operations. d. Validation of Process Elements. When the certificate holders accelerated ETOPS plan receives approval by the CHDO and final concurrence by AFS-200, a validation of the process elements of the accelerated ETOPS plan should begin. Close coordination between the certificate holder and the FAA is necessary for a successful validation of the ETOPS plan. All process elements required in paragraph
(a)should be validated.
(1)Before the start of the validation of the process elements, the following information should be part of the Accelerated ETOPS plan submitted to the FAA:
(a)Validation periods, including start dates and proposed completion dates.
(b)Definition of airplane(s) to be used in the validation. List should include registration numbers, manufacturer and serial number and model of the airframes and engines.
(c)Description of the areas of operation (if relevant to validation objectives) proposed for validation and actual ETOPS.
(d)Definition of designated ETOPS validation routes. The routes should be of duration necessary to ensure process validation occurs.
(2)Process validation reporting. The certificate holder should compile results of ETOPS process validation. The certificate holder should:
(a)Document how each element of the ETOPS process was utilized during the validation.
(b)Document any shortcomings with the process elements and measures in place to correct such shortcomings.
(c)Document any changes to ETOPS processes that were required after an IFSD, unscheduled engine removals, or any other significant operational events.
(d)When there is concurrence between the certificate holder and the CHDO that a process element has been successfully proven, the review gate should be closed and confirmation documented.
(e)Provide periodic process validation reports to the FAA. This should be addressed during the review gates.
(3)The certificate holder should include a final review gate prior to final ETOPS approval that is the validation flights described in Chapter 4, paragraphs 404 and 405 of this AC. This review gate should ensure that all ETOPS processes have been proven.
(4)Any validation program should address the following:
(a)The certificate holder should show that it has considered the impact of the ETOPS validation program with regard to safety of flight operations. The certificate holder should state in its application any policy guidance to personnel involved in the ETOPS process validation program. Such guidance should clearly state that ETOPS process validation exercises should not be allowed to adversely impact the safety of operations especially during periods of abnormal, emergency, or high cockpit workload operations. It should emphasize that during periods of abnormal or emergency operation or high cockpit workload ETOPS process validation exercises may be terminated.
(b)The validation scenario(s) should be of sufficient frequency and operational exposure to validate maintenance and operational support systems not validated by other means.
(c)A means must be established to monitor and report performance with respect to accomplishment of tasks associated with ETOPS process elements. Any recommended changes to ETOPS maintenance and operational process elements should be defined. e. Final Approval for Accelerated ETOPS Authority. At the successful completion of the certificate holder's accelerated ETOPS validation program all process elements should have been validated and appropriate review gates closed. Report of a successful completion of review gates will be forwarded by the CHDO to AFS-200. Upon final concurrence and approval, the applicant should forward to the FAA a plan for final validation flights to be conducted over proposed routes in the ETOPS area of operation and in the airframe-engine combination listed in the certificate holder's application. This FAA witnessed ETOPS validation flight or flights will be conducted in accordance with Chapter 4, paragraphs 404 and 405 of this AC. The purpose of these flights is for the certificate holder to demonstrate to the FAA that it has the competence and capability to safely conduct and adequately support the intended ETOPS operation. [FR Doc. 07-4473 Filed 9-14-07; 8:45 am]
Connectionstraces to 59
Traces to 59 documents
register
CFR
- Definitions.§ 63.2
- Ventilation.§ 1910.94
- What size standards has SBA identified by North American Industry Classification System codes?§ 121.201
- Hazard communication.§ 1910.1200
- Addresses of State air pollution control agencies and EPA Regional Offices.§ 63.13
- Compliance with standards and maintenance requirements.§ 63.6
- Incorporations by reference.§ 63.14
- Recordkeeping and reporting requirements.§ 63.10
- Notification requirements.§ 63.9
- Performance testing requirements.§ 63.7
- Monitoring requirements.§ 63.8
U.S. Code
- Purposes§ 3501
- Recordkeeping, inspections, monitoring, and entry§ 7414
- Establishment, functions, and activities§ 272
- Congressional findings and declaration of purpose§ 7401
- Admission of nonimmigrants§ 1184
- Definitions§ 1101
- Inadmissible aliens§ 1182
- Penalties for disclosure of information§ 1367
- Transferred§ 10603
- Order of restitution§ 3663
- Crime victims’ rights§ 3771
- Adjustment of status of nonimmigrant to that of person admitted for permanent residence§ 1255
- Indian country defined§ 1151
- Base closures and realignments§ 2687
- Scope of chapter; definitions§ 2801
- Transportation of minors§ 2423
- Destruction of aircraft or aircraft facilities§ 32
- Trusts, etc., in restraint of trade illegal; penalty§ 1
- Removal proceedings§ 1229a
- Judicial review of orders of removal§ 1252
- Repealed. Pub. L. 104–208, div. C, title III, § 308(b)(6), Sept. 30, 1996, 110 Stat. 3009–615§ 1252b
- Apprehension and detention of aliens§ 1226
- Voluntary departure§ 1229c
- U.S. Immigration and Customs Enforcement§ 252
- Change of nonimmigrant classification§ 1258
- Procedure for granting immigrant status§ 1154
- Authenticated transcripts or copies of certain returns; other data; restriction on use; disposition of fees received§ 8
- Definitions§ 1641
- Unlawful employment of aliens§ 1324a
- Abolishment of INS§ 291
- Deportable aliens§ 1227
- Initiation of removal proceedings§ 1229
- Rule making§ 553
- Avoidance of duplicative or unnecessary analyses§ 605
- Public information; agency rules, opinions, orders, records, and proceedings§ 552
- SHORT TITLE.§ 9701
- SHORT TITLE.§ 1
- Approval of Compact of Free Association§ 1901
- Adjustment of status of certain resident aliens to nonimmigrant status; exceptions§ 1257
- Federal Aviation Administration§ 106
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statutes-at-large
163 references not yet in our index
- 7 CFR 59
- 40 CFR 63
- 40 CFR 2
- 29 CFR 1910.123-1910
- 40 CFR 70.6
- 40 CFR 70.6(a)(3)
- 40 CFR 71.6(a)(3)
- 40 CFR 70.3
- 40 CFR 9
- Pub. L. 104-4
- Pub. L. 104-113
- 40 CFR 70
- 40 CFR 70.3(a)
- 40 CFR 63.10880
- 40 CFR 71.6
- 40 CFR 70.5(c)(9)(iii)
- 40 CFR 71.6(c)(5)(i)
- 40 CFR 60
- 40 CFR 71
- 40 CFR 71.3(a)
- Pub. L. 106-386
- Pub. L. 109-162
- 119 Stat. 2960
- Pub. L. 109-271
- 120 Stat. 750
- Pub. L. 104-208
- 8 CFR 214.1(a)(3)
- 8 CFR 212.5
- 8 CFR 241.6
- 8 CFR 1241.6
- 8 CFR 212.17
- 8 CFR 212.1
- 8 CFR 248.2
- 8 CFR 274
- 8 CFR 299.1
- 8 CFR 103.7
- 8 CFR 214.14(a)
- 8 CFR 214.14(a)(14)
- 8 CFR 214.14(a)(14)(i)
- 8 CFR 214.14(a)(14)(ii)
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F. App'x142 F.3d 702
SCOTUS495 U.S. 149
SCOTUS480 U.S. 202
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