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Code · REGISTER · 2008-04-03 · Coast Guard, DHS · Notices

Notices. Notice of meetings

129,251 words·~588 min read·/register/2008/04/03/08-1098

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

BILLING CODE 4410-10-P DEPARTMENT OF HOMELAND SECURITY Coast Guard [Docket No. USCG-2008-0123] National Boating Safety Advisory Council AGENCY: Coast Guard, DHS. ACTION: Notice of meetings. SUMMARY: The National Boating Safety Advisory Council (NBSAC) and its subcommittees on boats and associated equipment, prevention through people, and recreational boating safety strategic planning will meet to discuss various issues relating to recreational boating safety. All meetings will be open to the public.
DATES: NBSAC will meet on Friday, April 25, 2008, from 7:30 a.m. to 1 p.m. and on Sunday, April 27, 2008, from 7:30 a.m. to 12 p.m. The Boats and Associated Equipment Subcommittee will meet on Friday, April 25, 2008, from 2 p.m. to 5:30 p.m. The Recreational Boating Safety Strategic Planning Subcommittee will meet on Saturday, April 26, 2008 from 8 a.m. to 12 p.m. The Prevention through People Subcommittee will meet on Saturday, April 26, 2008, from 1 p.m. to 4:30 p.m. These meetings may close early if all business is finished.
On Saturday, April 26th, a Subcommittee meeting may start earlier if the preceding Subcommittee meeting has closed early. ADDRESSES: NBSAC will meet at the The Samoset, 220 Warrenton Street, Rockport, ME 04856. The subcommittee meetings will be held at the same address. Send written material and requests to make oral presentations to Mr. Jeff Ludwig, Executive Secretary of NBSAC, Commandant (CG-54221), U.S. Coast Guard Headquarters, 2100 Second Street, SW., Washington, DC 20593-0001.
This notice is available on the Internet at *http://www.regulations.gov* or at the Web site for the Boating Safety Division at *http://www.uscgboating.org.* FOR FURTHER INFORMATION CONTACT: Jeff Ludwig, Executive Secretary of NBSAC, telephone 202-372-1061, fax 202-372-1932. SUPPLEMENTARY INFORMATION: Notice of these meetings is given under the Federal Advisory Committee Act, 5 U.S.C. App. (Pub. L. 92-463). Tentative Agendas of Meetings National Boating Safety Advisory Council (NBSAC):
(1)Remarks—Mr. James P. Muldoon, NBSAC Chairman;
(2)Chief, Boating Safety Division Update on NBSAC Resolutions and Recreational Boating Safety Program report.
(3)Executive Secretary's report.
(4)Chairman's session.
(5)TSAC Liaison's report.
(6)NAVSAC Liaison's report.
(7)National Association of State Boating Law Administrators report.
(8)Report on upcoming national boating survey.
(9)Prevention through People Subcommittee report.
(10)Boats and Associated Equipment Subcommittee report.
(11)Recreational Boating Safety Strategic Planning Subcommittee report. A more detailed agenda can be found at: *http://www.uscgboating.org/nbsac/nbsac.htm,* after April 10, 2008. *Prevention Through People Subcommittee:* Discuss current regulatory projects, grants, contracts, and new issues affecting the prevention of boating accidents through outreach and education of boaters. *Boats and Associated Equipment Subcommittee:* Discuss current regulatory projects, grants, contracts, and new issues affecting boats and associated equipment. *Recreational Boating Safety Strategic Planning Subcommittee:* Discuss current status of the strategic planning process and any new issues or factors that could impact, or contribute to, the development of the strategic plan for the recreational boating safety program. Procedural All meetings are open to the public. These meetings may close early if all business is finished. At the Chairs' discretion, members of the public may make oral presentations during the meetings. If you would like to make an oral presentation at a meeting, please notify the Executive Secretary of your request no later than Friday, April 4, 2008. If you would like a copy of your material distributed to each member of the committee or subcommittee in advance of a meeting, please submit 30 copies to the Executive Secretary no later than Friday, April 4, 2008. If you would like written material to be distributed at the meeting, please submit at least 60 copies to the Executive Secretary no later than Friday, April 18, 2008. Information on Services for Individuals With Disabilities For information on facilities or services for individuals with disabilities or to request special assistance at the meetings, contact the Executive Secretary as soon as possible. Dated: March 27, 2008. F.J. Sturm, Captain, U.S. Coast Guard, Deputy for Prevention Policy. [FR Doc. E8-6877 Filed 4-2-08; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY U.S. Customs and Border Protection Quarterly IRS Interest Rates Used in Calculating Interest on Overdue Accounts and Refunds on Customs Duties AGENCY: Customs and Border Protection, Department of Homeland Security. ACTION: General notice. SUMMARY: This notice advises the public of the quarterly Internal Revenue Service interest rates used to calculate interest on overdue accounts (underpayments) and refunds (overpayments) of customs duties. For the calendar quarter beginning April 1, 2008, the interest rates for overpayments will be 5 percent for corporations and 6 percent for non-corporations, and the interest rate for underpayments will be 6 percent. This notice is published for the convenience of the importing public and Customs and Border Protection personnel. DATES: *Effective Date:* April 1, 2008. FOR FURTHER INFORMATION CONTACT: Ron Wyman, Revenue Division, Collection and Refunds Branch, 6650 Telecom Drive, Suite #100, Indianapolis, Indiana 46278; telephone
(317)614-4516. SUPPLEMENTARY INFORMATION: Background Pursuant to 19 U.S.C. 1505 and Treasury Decision 85-93, published in the **Federal Register** on May 29, 1985 (50 FR 21832), the interest rate paid on applicable overpayments or underpayments of customs duties must be in accordance with the Internal Revenue Code rate established under 26 U.S.C. 6621 and 6622. Section 6621 was amended (at paragraph (a)(1)(B) by the Internal Revenue Service Restructuring and Reform Act of 1998, Pub. L. 105-206, 112 Stat. 685) to provide different interest rates applicable to overpayments: one for corporations and one for non-corporations. The interest rates are based on the Federal short-term rate and determined by the Internal Revenue Service
(IRS)on behalf of the Secretary of the Treasury on a quarterly basis. The rates effective for a quarter are determined during the first-month period of the previous quarter. In Revenue Ruling 2008-10, the IRS determined the rates of interest for the calendar quarter beginning April 1, 2008, and ending June 30, 2008. The interest rate paid to the Treasury for underpayments will be the Federal short-term rate (3%) plus three percentage points (3%) for a total of six percent (6%). For corporate overpayments, the rate is the Federal short-term rate (3%) plus two percentage points (2%) for a total of five percent (5%). For overpayments made by non-corporations, the rate is the Federal short-term rate (3%) plus three percentage points (3%) for a total of six percent (6%). These interest rates are subject to change for the calendar quarter beginning July 1, 2008, and ending September 30, 2008. For the convenience of the importing public and Customs and Border Protection personnel the following list of IRS interest rates used, covering the period from before July of 1974 to date, to calculate interest on overdue accounts and refunds of customs duties, is published in summary format. Beginning date Ending date Under-payments (percent) Over-payments (percent) Corporate overpayments (Eff. 1-1-99) (percent) 070174 063075 6 6 070175 013176 9 9 020176 013178 7 7 020178 013180 6 6 020180 013182 12 12 020182 123182 20 20 010183 063083 16 16 070183 123184 11 11 010185 063085 13 13 070185 123185 11 11 010186 063086 10 10 070186 123186 9 9 010187 093087 9 8 100187 123187 10 9 010188 033188 11 10 040188 093088 10 9 100188 033189 11 10 040189 093089 12 11 100189 033191 11 10 040191 123191 10 9 010192 033192 9 8 040192 093092 8 7 100192 063094 7 6 070194 093094 8 7 100194 033195 9 8 040195 063095 10 9 070195 033196 9 8 040196 063096 8 7 070196 033198 9 8 040198 123198 8 7 010199 033199 7 7 6 040199 033100 8 8 7 040100 033101 9 9 8 040101 063001 8 8 7 070101 123101 7 7 6 010102 123102 6 6 5 010103 093003 5 5 4 100103 033104 4 4 3 040104 063004 5 5 4 070104 093004 4 4 3 100104 033105 5 5 4 040105 093005 6 6 5 100105 063006 7 7 6 070106 123107 8 8 7 010108 033108 7 7 6 040108 063008 6 6 5 Dated: March 28, 2008. W. Ralph Basham, Commissioner, U.S. Customs and Border Protection. [FR Doc. E8-6845 Filed 4-2-08; 8:45 am] BILLING CODE 9111-14-P DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT [Docket No. FR-5187-N-18] Requirement for Contractors To Provide Certificates of Insurance for Capital Program Projects AGENCY: Office of Public and Indian Housing, HUD. ACTION: Notice. SUMMARY: The proposed information collection requirement described below has been submitted to the Office of Management and Budget
(OMB)for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal. This collection is fundamental to the ongoing operations of the Congregate Housing Services Program (CHSP). The Department monitors the proper use of grant funds according to statutory, regulatory, and administrative requirements. The Grantees must meet annual requirements. DATES: *Comments Due Date:* May 5, 2008. ADDRESSES: Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB approval Number (2577-0046) and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202-395-6974. FOR FURTHER INFORMATION CONTACT: Lillian Deitzer, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410; e-mail Lillian Deitzer at *Lillian_L_Deitzer@HUD.gov* or telephone
(202)402-8048. This is not a toll-free number. Copies of available documents submitted to OMB may be obtained from Ms. Deitzer. SUPPLEMENTARY INFORMATION: This notice informs the public that the Department of Housing and Urban Development has submitted to OMB a request for approval of the Information collection described below. This notice is soliciting comments from members of the public and affecting agencies concerning the proposed collection of information to:
(1)Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2)Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information;
(3)Enhance the quality, utility, and clarity of the information to be collected; and
(4)Minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses. This notice also lists the following information: *Title of Proposal:* Requirement for Contractors to provide Certificates of Insurance for Capital Program Projects. *OMB Approval Number:* 2577-0046. *Form Numbers:* None. *Members of affected public:* Business or other for profit. *Description of the Need for the Information and Its Proposed Use:* Public Housing Agencies must obtain certificates of insurance from contractors and subcontractors before beginning work under either the development of a new low-income public housing project or the modernization of an existing project. The certificates of insurance provide evidence that worker's compensation and general liability, automobile ability insurance are in force before any construction work is started. *Frequency of Submission:* Quarterly, semi-annually, annually. Number of respondents × Annual responses × Hours per response = Burden hours Reporting Burden 3,200 4 0.47 6,000 *Total Estimated Burden Hours:* 6,000. *Status:* Extension of a currency approved collection. Authority: Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35, as amended. Dated: March 28, 2008. Lillian L. Deitzer, Departmental Paperwork Reduction Act Officer, Office of the Chief Information Officer. [FR Doc. E8-6930 Filed 4-2-08; 8:45 am] BILLING CODE 4210-67-P DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs Indian Gaming AGENCY: Bureau of Indian Affairs, Interior. ACTION: Notice of Approved Tribal—State Gaming Amendment. SUMMARY: This notice publishes an Approval of the Amendment to Interim Compact between the Chippewa Cree Tribe of the Rocky Boy's Reservation and the State of Montana regarding Class III Gaming on the Rocky Boy's Reservation. EFFECTIVE DATE: April 3, 2008. FOR FURTHER INFORMATION CONTACT: George T. Skibine, Director, Office of Indian Gaming, Office of the Deputy Assistant Secretary—Policy and Economic Development, Washington, DC 20240,
(202)219-4066. SUPPLEMENTARY INFORMATION: Under Section 11 of the Indian Gaming Regulatory Act of 1988 (IGRA), Public Law 100-497, 25 U.S.C. § 2710, the Secretary of the Interior shall publish in the **Federal Register** notice of approved Tribal—State compacts for the purpose of engaging in Class III gaming activities on Indian lands. This Amendment increases the overall limit of allowable Class III machines and increases the maximum payout per machine. The Amendment is approved. Dated: March 25, 2008. Carl J. Artman, Assistant Secretary—Indian Affairs. [FR Doc. E8-6884 Filed 4-2-08; 8:45 am] BILLING CODE 4310-4N-P DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs Land Acquisitions; Skokomish Indian Tribe, Washington AGENCY: Bureau of Indian Affairs, Interior. ACTION: Notice of Final Agency Determination to take land into trust under 25 CFR part 151. SUMMARY: The Assistant Secretary—Indian Affairs made a final agency determination to acquire approximately 0.94 acres of land into trust for the Skokomish Indian Tribe of Washington on March 14, 2008. This notice is published in the exercise of authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs by 209 Departmental Manual 8.1. FOR FURTHER INFORMATION CONTACT: George Skibine, Director, Office of Indian Gaming, MS-3657 MIB, 1849 C Street, NW., Washington, DC 20240; Telephone
(202)219-4066. SUPPLEMENTARY INFORMATION: This notice is published to comply with the requirement of 25 CFR part 151.12(b) that notice be given to the public of the Secretary's decision to acquire land in trust at least 30 days prior to signatory acceptance of the land into trust. The purpose of the 30-day waiting period in 25 CFR 151.12(b) is to afford interested parties the opportunity to seek judicial review of final administrative decisions to take land in trust for Indian tribes and individual Indians before transfer of title to the property occurs. On March 14, 2008, the Assistant Secretary—Indian Affairs decided to accept approximately 0.94 acres of land into trust for the Skokomish Indian Tribe of Washington under the authority of the Indian Reorganization Act of 1934, 25 U.S.C. 465. The 0.94 acre parcel is located within the exterior boundaries of the Skokomish Indian Tribe in Mason County, Washington. The parcel is currently used for the Tribe's gaming facility. No change in the use is anticipated following conveyance of the parcel to the United States in trust for the Tribe. The property is located adjacent/contiguous to the location of the Lucky Dog Casino and its parking lot, which are already held in trust. The legal description of the property is as follows: All that portion of the Southeast Quarter (SE 1/4 ) of the Southwest Quarter (SW 1/4 ) of the Northwest Quarter (NW 1/4 ) AND of Indian Lot twenty-three (23), all in Section two (2), township twenty-one
(21)North, Range four
(4)West, W.M., particularly described as follows: Beginning at a point 16.20 chains East of the quarter Section post on the West line of said Section two (2), which point is a post 30 feet East of the center of US Highway 101; thence North 2° 15′ East, 175 feet; thence west 235 feet; thence South 2° 15′ West, 175 feet; thence West, 235 feet to the point of beginning. Excepting therefrom right-of-way for U.S. Highway 101. Parcel No. 42102 23 00012. *Together with* and *subject to* a perpetual, non-exclusive easement for ingress, egress, drainage and utilities, 20 feet in width, as described in instrument recorded January 30, 1979, Auditor's File No. 356506. Situated in Mason County, Washington. Containing 0.94 acres, more or less. Dated: March 25, 2008. Carl J. Artman, Assistant Secretary—Indian Affairs. [FR Doc. E8-6878 Filed 4-2-08; 8:45 am] BILLING CODE 4310-4N-P DEPARTMENT OF THE INTERIOR Bureau of Land Management [ID-110-1610-DG-053D-DBG081008] Notice of Intent To Prepare a Resource Management Plan for the Four Rivers Field Office (Idaho) and Associated Environmental Impact Statement AGENCY: Bureau of Land Management, Department of the Interior. ACTION: Notice of intent. SUMMARY: Pursuant to Section 202 of the Federal Land Policy and Management Act of 1976 (FLPMA) and Section 102 (2)(C) of the National Environmental Policy Act of 1969 (NEPA), the Bureau of Land Management
(BLM)Four Rivers Field Office (FRFO), Boise, Idaho intends to prepare a RMP with an associated EIS for the Four Rivers Planning Area. Publication of this notice also initiates a public scoping period to extend until 15 days after the last public scoping meeting. RMPs are the basic land use documents used by the BLM that guide land use decisions and management actions on public lands. RMP level decisions establish goals and objectives (i.e. desired future conditions), the measures needed to achieve those goals and objectives and the parameters for resource use on BLM lands. This RMP will replace the 1988 Cascade RMP and portions of the 1983 Kuna Management Framework Plan
(MFP)and the 1987 Jarbidge RMP. The Snake River Birds of Prey National Conservation Area (NCA), located in the FRFO, is being addressed in a separate, comprehensive RMP currently available as a Final EIS. DATES: The BLM will announce public scoping meetings pursuant to 43 CFR 1610.2 (BLM Planning Regulations) and 40 CFR 1501.7 (NEPA Regulations) to identify relevant issues. Meetings will be announced through local news media, newsletters and the Idaho BLM Web site (listed below) at least 15 days prior to the first meeting once specific dates and locations are finalized. Throughout the planning process, the public will be given opportunities to participate through workshops and open house meetings. Workshops will provide the public an opportunity to work with BLM in
(1)identifying the full range of issues to be addressed in the RMP/EIS and
(2)developing the alternatives to be analyzed in the EIS. BLM will also provide an opportunity for public review upon publication of the Draft RMP/EIS. ADDRESSES: You may submit comments by any of the following methods: • Web site: *http://www.blm.gov/id/st/en/fo/four_rivers/Planning/four_rivers_resource.html* . • E-mail: *Four_Rivers_RMP@blm.gov* . • Fax: 208-384-3493. • Mail: Bureau of Land Management, Attn: RMP Project Manager, Four Rivers Field Office, 3948 Development Avenue, Boise, ID 83705. Before including your address, phone number, e-mail address or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. All submissions from organizations or businesses and individuals identifying themselves as representatives of organizations or businesses will be made available for public inspection in their entirety. Documents pertinent to this proposal may be examined at the Four Rivers Field Office at the above address. FOR FURTHER INFORMATION: For further information and/or to have your name added to the mailing list, contact Jonathan Beck, FRFO RMP Project Manager, Four Rivers Field Office, at the address above. Telephone: 208-384-3300 or e-mail: *Four_Rivers_RMP@blm.gov* . SUPPLEMENTARY INFORMATION: The planning area is located in southwestern Idaho's Ada, Adams, Boise, Canyon, Elmore, Gem, Payette, Valley and Washington counties, encompassing approximately 783,000 public land acres administered by the BLM. The planning area includes all of the FRFO located outside the Snake River Birds of Prey National Conservation Area (NCA), and encompasses an area extending north of the Snake River from approximately Glenns Ferry in the southeast, west to Weiser, and north to McCall. Much of the planning area is comprised of interspersed sections of public, private, State or Forest Service lands. While the FRFO includes the approximately one half million acre NCA, along about 81 miles of the Snake River, the NCA is managed under its own comprehensive RMP. The Four Rivers RMP will fulfill the needs and obligations set forth by the National Environmental Policy Act (NEPA), the Federal Land Policy and Management Act (FLPMA) and BLM management policies. The BLM will work collaboratively with interested parties to identify the management decisions best suited to local, regional and national needs and concerns. The purpose of the public scoping process is to determine relevant issues that will influence the scope of the environmental analysis and EIS alternatives. These issues also guide the planning process. You may submit comments on issues and planning criteria, in writing, to the BLM at any public scoping meeting or you may submit them to the BLM using one of the methods listed in the ADDRESSES section above. To be most helpful, you should submit formal scoping comments within 15 days after the last public meeting. Preliminary issues and management concerns have been identified by BLM personnel, other agencies, and individuals and user groups. They represent BLM's knowledge to date regarding existing issues and concerns with current land management. The preliminary issues that will be addressed in this planning effort include: land tenure adjustments, lands and realty management, special status species management, recreation management, public access and transportation, livestock grazing management, wild and scenic river evaluations, riparian-wetland management, upland vegetation management, noxious weed management, wildfire management, social and economic sustainability of local communities, and mineral and energy exploration and development. In addition, the BLM also requests public input for nominations considered worthy of Area of Critical Environmental Concern
(ACEC)designation. To be considered as a potential ACEC, an area must meet the criteria of relevance and importance as established and defined at 43 CFR 1610.72. There are nine ACECs and six ACEC/Research Natural Areas within the Four Rivers Planning Area. All ACEC nominations within the planning area will be evaluated during RMP development. After gathering public comments on which issues the plan should address, the suggested issues will be evaluated for their applicability to the planning process and categorized into one of following categories: 1. Issues to be resolved in the plan; 2. Issues to be resolved through policy or administrative action; or 3. Issues beyond the scope of this plan. This evaluation and categorization will be described in the plan with associated rationale. In addition to the issues to be resolved in the plan, a number of management questions and concerns will also be addressed. The public is encouraged to help identify these questions and concerns during the scoping period. The BLM will use an interdisciplinary approach to develop the plan. In order to consider the variety of resource issues and concerns identified, specialists with expertise in the disciplines corresponding to the issues listed above will be represented and utilized in the planning process. Dated: March 27, 2008. David Wolf, Associate District Manager. [FR Doc. E8-6901 Filed 4-2-08; 8:45 am] BILLING CODE 4310-GG-P DEPARTMENT OF THE INTERIOR Bureau of Land Management [WY-020-08-1220-DA] Notice of Intent To Name a Geographic Location the Craig Thomas Little Mountain Special Management Area, Big Horn County, WY AGENCY: Bureau of Land Management, Interior. ACTION: Notice of intent. SUMMARY: The Bureau of Land Management
(BLM)announces its intent to name an area of the public lands administered by the Cody Field Office. These lands include the Little Mountain Area of Critical Environmental Concern (ACEC), a portion of the West Slope Special Recreation Management Area (SRMA), and recently acquired lands near Little Mountain. In recognition of the late United States Senator Craig Thomas' support and assistance in furthering public land management in the area administered by the BLM Cody Field Office, this notice announces that those public lands collectively will be known as the “Craig Thomas Little Mountain Special Management Area”. DATES: This naming will be in effect the date this notice appears in the **Federal Register** . ADDRESSES: Additional information regarding the naming and the public lands affected by it may be obtained by written request to the BLM Cody Field Office, P.O. Box 518, Cody, Wyoming 82414; or by visiting the BLM Cody Field Office, 1002 Blackburn Avenue, Cody, Wyoming, during its business hours (7:45 a.m. to 4:30 p.m., Monday through Friday, except holidays). FOR FURTHER INFORMATION CONTACT: Mike Stewart, Field Manager, BLM, Cody Field Office, P.O. Box 518, 1002 Blackburn Avenue, Cody, Wyoming 82414. Mr. Stewart may also be contacted by telephone at
(307)578-5900. SUPPLEMENTARY INFORMATION: In June 2003, the BLM acquired approximately 8,200 acres of land on and near Little Mountain, approximately 15 miles east of Lovell, Wyoming. The land was previously part of the Devils Canyon Ranch. Acquisition of the land improved access to thousands of acres of State, BLM-administered public, and National Forest System lands on the western slope of the Bighorn Mountains. Funding for the first phase of the acquisition was made through a $4 million congressional appropriation from the Land and Water Conservation Fund Act and by a $100,000 donation from the Rocky Mountain Elk Foundation. An additional 3,000 acres are being held by the Trust for Public Land, a national land conservation group, for transfer to the BLM at a later date. When the transfer occurs, these lands would automatically become part of the Craig Thomas Little Mountain Special Management Area. The area proposed for naming offers a variety of recreational and educational opportunities and sites of historic, cultural, and paleontological interest. Portions of the area lie within the Little Mountain ACEC and the West Slope SRMA, as established in the Cody Resource Management Plan (RMP). The RMP restricts vehicular travel to designated roads and trails within the area administered by the Cody Field Office. The specific routes designated for travel were established by an Activity Plan and its implementation is currently in progress. The following described lands are included: Approximately 69,253 acres of BLM-managed public land in Townships 56 through 58 North, and Ranges 92 through 94 West, 6th Principal Meridian lying north of U.S. Highway Alternate 14 (14A), south of the Montana state line, east of the Bighorn Canyon National Recreation Area, and west of the Bighorn National Forest. James K. Murkin, Acting Associate State Director. [FR Doc. E8-6936 Filed 4-2-08; 8:45 am] BILLING CODE 4310-22-P DEPARTMENT OF THE INTERIOR Bureau of Land Management [CA-310-0777-XG] Notice of Public Meeting: Northwest California Resource Advisory Council AGENCY: Bureau of Land Management, Interior. ACTION: Notice of public meeting. SUMMARY: In accordance with the Federal Land Policy and Management Act of 1976 (FLPMA), and the Federal Advisory Committee Act of 1972 (FACA), the U. S. Department of the Interior, Bureau of Land Management
(BLM)Northwest California Resource Advisory Council will meet as indicated below. DATES: The meeting will be held Wednesday and Thursday, June 11 and 12, 2008, in Weaverville, California. On June 11, the council convenes at 10 a.m. in the parking area of the Weaverville Victorian Inn, 2051 Main St., and departs for a field tour of Trinity County public lands managed by the BLM Redding Field Office. On June 12, the meeting begins at 8 a.m. in the Conference Room of the Weaverville Victorian Inn. The council will take public comments at 11 a.m. FOR FURTHER INFORMATION CONTACT: Rich Burns, BLM Ukiah Field Office manager,
(707)468-4000; or BLM Public Affairs Officer Joseph J. Fontana,
(530)252-5332. SUPPLEMENTARY INFORMATION: The 12-member council advises the Secretary of the Interior, through the BLM, on a variety of planning and management issues associated with public land management in Northwest California. At this meeting, agenda topics include a discussion of shooting area management, support for BLM's use of California Conservation Corps crews, an update on access issues at South Cow Mountain, land use planning at Lack's Creek and an update on management of the Sacramento River Bend Area of Critical Environmental Concern. Members will also hear status reports on activities in the Arcata, Redding and Ukiah field offices' areas of jurisdiction. Members of the public may present written comments to the council. Each formal council meeting will have time allocated for public comments. Depending on the number of persons wishing to speak, and the time available, the time for individual comments may be limited. Members of the public are welcome on field tours, but they must provide their own transportation and lunch. Individuals who plan to attend and need special assistance, such as sign language interpretation and other reasonable accommodations, should contact the BLM as provided above. Dated: March 28, 2008. Joseph J. Fontana, Public Affairs Officer. [FR Doc. E8-6888 Filed 4-2-08; 8:45 am] BILLING CODE 4310-40-P INTERNATIONAL TRADE COMMISSION [Investigation No. 337-TA-619] In the Matter of Certain Flash Memory Controllers, Drives, Memory Cards, and Media Players and Products Containing Same; Notice of Commission Decision Not To Review an Initial Determination Granting Complainant's Motion to Amend the Notice of Investigation AGENCY: U.S. International Trade Commission. ACTION: Notice. SUMMARY: Notice is hereby given that the U.S. International Trade Commission has determined not to review an initial determination (“ID”) (Order No. 25) issued by the presiding administrative law judge (“ALJ”) in the above-referenced investigation granting complainant's motion to amend the notice of investigation. FOR FURTHER INFORMATION CONTACT: Michelle Walters, Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone
(202)708-5468. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone
(202)205-2000. General information concerning the Commission may also be obtained by accessing its Internet server at *http://www.usitc.gov* . The public record for this investigation may be viewed on the Commission's electronic docket
(EDIS)at *http://edis.usitc.gov* . Hearing-impaired persons are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on
(202)205-1810. SUPPLEMENTARY INFORMATION: The Commission instituted this investigation on December 12, 2007, based on a complaint filed by SanDisk Corporation. The complaint alleges violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain flash memory controllers, drives, memory cards, media players, and products containing the same by reason of infringement of various claims of five United States patents. The complaint names nearly fifty respondents. On March 6, 2008, complainant SanDisk filed an unopposed motion to amend the notice of investigation to correct the names of certain respondents pursuant to Commission Rule 210.14(b). SanDisk asserts that there is no dispute as to which parties are named in the notice of investigation, but that the following three errors should be corrected with regard to the names of the respondents in the notice of investigation: “Chipsbank Technology (Shenzhen) Co., Ltd.” should be changed to “Chipsbank Technologies (Shenzhen) Co., Ltd.;” “Chipsbank Microelectronics Co., Ltd.” should be changed to “Shenzhen Chipsbank Microelectronics Co., Ltd.;” and “Dane-Elec Memory S.A.” should be changed to “Dane Memory S.A., d/b/a Dane-Elec Memory S.A.” On March 12, 2008, the ALJ granted SanDisk's motion, finding good cause to amend the notice of investigation to reflect the corrected corporate names. No petitions for review were filed. The Commission has determined not to review the ALJ's ID. The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in section 210.42 of the Commission's Rules of Practice and Procedure (19 CFR 210.42). Issued: March 28, 2008. By order of the Commission. Marilyn R. Abbott, Secretary to the Commission. [FR Doc. E8-6869 Filed 4-2-08; 8:45 am] BILLING CODE 7020-02-P DEPARTMENT OF JUSTICE Notice of Lodging of Consent Decree Under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) Notice is hereby given that on March 28, 2008, a proposed Consent Decree in *United States* v. *Atlanta Gas Light Company, et al.* , Civil Action No. 6:08-cv-00442-ACC-GJK (M.D. Fla.), was lodged with the United States District Court for the Middle District of Florida. The proposed Consent Decree resolves the United States' claims against: Atlanta Gas Light Company; City of Sanford; Florida Power & Light Company; Florida Power Corporation; and Florida Public Utilities Company (collectively the “Settling Defendants”), for cost recovery and injunctive relief under Sections 106 and 107 of CERCLA, 42 U.S.C. 9606 and 9607, relating to the release or threatened release of hazardous substances into the environment at or from the Sanford Gasification Plant Superfund Alternative Site (“Site”) located in Sanford, Seminole County, Florida. The Consent Decree requires Settling Defendants to undertake the remedial action selected by the United States Environmental Protection Agency for the Site and to reimburse the United States for all of the government's past cost and future oversight cost incurred or to be incurred, plus interest, in connection with the remedial action at the Site. The estimated value of the cash payments and work performed by the Settling Defendants that the United States will receive under the terms of the Consent Decree is $12,703,224.58. The Department of Justice will receive for a period of thirty
(30)days from the date of this publication comments relating to the proposed Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and either e-mailed to *pubcomment-ees.enrd@usdoj.gov* or mailed to P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044-7611, and should refer to *United States* v. *Atlanta Gas Light Company, et al.* , D.J. Ref. 90-11-2-07157. The proposed Consent Decree may be examined at the United States Attorney's Office, 500 W. Church Street, Suite 300, Orlando, FL 33805, and the United States Environmental Protection Agency, Region 4, 61 Forsyth Street, Atlanta, GA 30303. During the public comment period, the Consent Decree may also be examined on the following Department of Justice Web site, *http://www.usdoj.gov/enrd/Consent_Decrees.html* . A copy of the proposed Consent Decree may also be obtained by mail from the Consent Decree Library, P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044-7611 or by faxing or e-mailing a request to Tonia Fleetwood ( *tonia.fleetwood@usdoj.gov* ), fax no.
(202)514-0097, phone confirmation no.
(202)514-1547. In requesting a copy from the Consent Decree Library, please enclose a check in the amount of $13.75 (25 cents per page reproduction cost) for a copy exclusive of appendices, or $110.75 (25 cents per page reproduction cost) for a copy including appendices payable to the “U.S. Treasury” or, if by e-mail or fax, forward a check in that amount to the Consent Decree Library at the stated address. Henry S. Friedman, Assistant Section Chief, Environmental Enforcement Section, Environment and Natural Resources Division. [FR Doc. E8-6854 Filed 4-2-08; 8:45 am] BILLING CODE 4410-15-P DEPARTMENT OF LABOR Employee Benefits Security Administration Proposed Extension of Information Collection Request Submitted for Public Comment; Procedure for Application for Exemption From the Prohibited Transaction Provisions of Section 408(a) of the Employee Retirement Security Act (ERISA) AGENCY: Employee Benefits Security Administration, Department of Labor. ACTION: Notice. SUMMARY: The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA 95). This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. Currently, the Employee Benefits Security Administration is soliciting comments on the proposed extension of the information collection provisions included in the procedure for applications for exemption from the prohibited transaction provisions of section 408(a) of the Employee Retirement Income Security Act of 1974 (ERISA) (29 CFR 2570.30, *et seq.* ). A copy of the information collection request
(ICR)can be obtained by contacting the individual shown in the ADDRESSES section of this notice or at *http://www.RegInfo.gov* . DATES: Written comments must be submitted to the office shown in the ADDRESSES section on or before June 2, 2008. ADDRESSES: G. Christopher Cosby, Department of Labor, Employee Benefits Security Administration, 200 Constitution Avenue, NW., Washington, DC 20210,
(202)693-8410, Fax
(202)693-4745 (these are not toll-free numbers). SUPPLEMENTARY INFORMATION: I. Background Section 408(a) of ERISA provides that the Secretary may grant exemptions from the prohibited transaction provisions of sections 406 and 407(a) of ERISA and directs the Secretary to establish an exemption procedure with respect to such provisions. In this regard, the Department previously issued a regulation which describes the procedures that must be followed in filing for such exemptions (29 CFR 2570.30 *et seq.* ). Under section 408(a) of ERISA, in order for the Secretary to grant an exemption, it must be determined that such exemption is “(1) Administratively feasible;
(2)in the interests of the plan and its participants and beneficiaries; and
(3)protective of the rights of participants and beneficiaries.” In order to make such determination, the Department requires full information regarding all aspects of the transaction, including the specific circumstances surrounding the transaction, and the parties and assets involved. Thus, sections 2570.34 and 2570.35 of the exemption procedures regulation lists the information that must be supplied by the applicant. This information includes: Identifying information (name, type of plan, EIN number, etc.); an estimate of the number of plan participants; a detailed description of the transaction and the parties for which an exemption is requested; statements regarding what section of ERISA is thought to be in violation and whether the transaction(s) involved have already been entered into; a statement of whether the transaction is customary in the industry; a statement of the hardship or economic loss, if any, which would result if the exemption were denied; a statement explaining why the proposed exemption would be administratively feasible, in the interests of the plan and protective of the rights of plan participants and beneficiaries; and several other statements. In addition, the applicant must certify that the information supplied is accurate and complete. Section 408(a) of ERISA requires that before granting an exemption from 406(a) the Secretary “shall require that adequate notice be given to interested parties, and shall afford interested persons opportunity to present views.” Thus, section 2570.43 of the exemption procedures regulation requires that the applicant for an exemption provide interested persons with a copy of the **Federal Register** notice containing the proposed exemption and a statement which informs them of their right to comment on the proposed exemption. II. Review Focus The Department of Labor (Department) is particularly interested in comments that: • Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; • Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; • Enhance the quality, utility, and clarity of the information to be collected; and • Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submissions of responses. III. Current Actions The Office of Management and Budget's
(OMB)approval of this ICR will expire on July 31, 2008. After considering comments received in response to this notice, the Department intends to submit the ICR to OMB for continuing approval. No change to the existing ICR is proposed or made at this time. Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of the information collection request; they will also become a matter of public record. *Agency:* Employee Benefits Security Administration, Department of Labor. *Title:* Procedure for Application for Prohibited Transaction Exemption Regulation pursuant to 29 CFR 2570.30, *et seq* . *Type of Review:* Extension of a currently approved collection of information. *OMB Number:* 1210-0060. *Affected Public:* Individuals or households; business or other for-profit; not-for-profit institutions. *Respondents:* 84. *Responses:* 143. *Average Response time:* 25 hours. *Estimated Total Burden Hours:* 0. *Estimated Total Burden Dollars:* $373,000. Joseph S. Piacentini, Director, Office of Policy and Research, Employee Benefits Security Administration. [FR Doc. E8-6767 Filed 4-1-08; 8:45 am] BILLING CODE 4510-29-P DEPARTMENT OF LABOR Employment and Training Administration Proposed Information Collection Request for the Unemployment Insurance
(UI)State Quality Service Plan (SQSP); Comment Request AGENCY: Employment and Training Administration, Department of Labor. ACTION: Notice. SUMMARY: The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with a provision of the Paperwork Reduction Act of 1995 at 44 U.S.C. 3506(c)(2)(A). This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. Currently, the Employment and Training Administration
(ETA)is soliciting comments concerning the proposed extension of the State Quality Service Plan (SQSP). Guidelines for completion and submittal of the SQSP are contained in ETA Handbook 336, 18th Edition. Fiscal year-specific information such as DOL's strategic goals and program areas that warrant special attention will be provided in an advisory that will initiate the planning process each year. The requirements of the reporting and data collection process itself remain unchanged from year to year. Copies of the SQSP Handbook may be obtained by contacting the addressee below. The Handbook is also available electronically at *http://www.workforcesecurity.doleta.gov.* A copy of the proposed information collection request
(ICR)can be obtained by contacting the office listed below in the addressee section of this notice or by accessing: *http://www.doleta.gov/OMBCN/OMBControlNumber.cfm.* DATES: Submit comments to the office listed in the addressee section below on or before June 2, 2008. ADDRESSES: Submit comments to Delores A. Mackall, Office of Workforce Security, Employment and Training Administration, U.S. Department of Labor, Room S-4231, 200 Constitution Avenue, NW., Washington, DC 20210; telephone: 202-693-3183 (this is not a toll-free number), fax: 202-693-3975 or by e-mail: *mackall.delores@dol.gov.* SUPPLEMENTARY INFORMATION: *I. Background:* As part of UI Performs, a comprehensive performance management system implemented in 1995 for the UI program, SQSP is the principal vehicle that state UI agencies use to plan, record and manage program improvement efforts as they strive for excellence in service. The SQSP which serves as the State Plan for the UI program is also the grant agreement. The statutory basis for the SQSP is Title III, section 302 of the Social Security Act, which authorizes the Secretary of Labor to provide funds to administer the UI programs, and sections 303(a)(8) and
(9)which govern the expenditures of those funds. The SQSP represents an approach to tie program performance with the budget and planning process. *II. Desired Focus of Comments:* Currently, the Department of Labor is soliciting comments concerning the proposed extension collection of the UI SQSP. The Department is particularly interested in comments which: • Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; • Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; • Enhance the quality, utility, and clarity of the information to be collected; and • Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques, or other forms of information technology, e.g., permitting electronic submission of responses. *III. Current Actions:* ETA proposes to extend this clearance with no change in burden hours. States will describe in a single narrative: Performance related to the Government Performance Results Act
(GPRA)goals; results of any customer satisfaction surveys (optional), and actions planned to correct deficiencies in program performance, reporting, Benefits Accuracy Measurement (BAM), and the Tax Performance System (TPS). Actions planned to correct deficiencies for Secretary Standards, Core Measures, and the Data Validation
(DV)program are expected to be addressed in corrective action plans. States are requested to submit the SQSP and the required signature page electronically. *Type of Review:* Extension, without change. *Agency:* Employment and Training Administration. *Title:* Unemployment Insurance State Quality Service Plan (SQSP). *OMB Number:* 1205-0132. *Affected Public:* State Workforce Agencies (SWAs). *Total Respondents:* 53. *Frequency:* Annually. *Average Time per Response:* 3.14 hours. *Number of Annual Responses:* 583. *Estimated Total Burden Hours:* 1829 hours. *Estimated Total Burden Cost:* $0. Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of the information collection request; they will also become a matter of public record. Dated: March 4, 2008. Cheryl Atkinson, Administrator, Office of Workforce Security. [FR Doc. E8-6890 Filed 4-2-08; 8:45 am] BILLING CODE 4510-FW-P DEPARTMENT OF LABOR Veterans' Employment and Training Service Office of the Assistant Secretary for Veterans' Employment and Training; The Advisory Committee on Veterans' Employment, Training and Employer Outreach (ACVETEO); Notice of Open Meeting The Advisory Committee on Veterans' Employment, Training and Employer Outreach (ACVETEO) was established pursuant to Title II of the Veterans' Housing Opportunity and Benefits Improvement Act of 2006 (Pub. L. 109-233) and section 9 of the Federal Advisory Committee Act
(FACA)(Pub. L. 92-462, Title 5 U.S.C. app. II). The ACVETEO's authority is codified in Title 38 U.S. Code, section 4110. The ACVETEO is responsible for assessing employment and training needs of veterans; determining the extent to which the programs and activities of the Department of Labor meet these needs; and assisting in carrying out outreach to employers seeking to hire veterans. The Advisory Committee on Veterans' Employment, Training and Employer Outreach will meet on Wednesday, May 21st, from 8 a.m. to 4 p.m. at the U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210. The committee will discuss programs assisting veterans seeking employment and raising employer awareness as to the advantages of hiring veterans with special emphasis on the guard/reserve and transition programs. Individuals needing special accommodations should notify Bill Offutt at
(202)693-4717 by May 9, 2008. Signed in Washington, DC, this 27th day of March 2008. John M. McWilliam, Deputy Assistant Secretary, Veterans Employment and Training. [FR Doc. E8-6754 Filed 4-2-08; 8:45 am] BILLING CODE 4510-79-P SECURITIES AND EXCHANGE COMMISSION [Release No. IC-28227] Notice of Applications for Deregistration under Section 8(f) of the Investment Company Act of 1940 March 28, 2008. The following is a notice of applications for deregistration under section 8(f) of the Investment Company Act of 1940 for the month of March, 2008. A copy of each application may be obtained for a fee at the SEC's Public Reference Branch (tel. 202-551-5850). An order granting each application will be issued unless the SEC orders a hearing. Interested persons may request a hearing on any application by writing to the SEC's Secretary at the address below and serving the relevant applicant with a copy of the request, personally or by mail. Hearing requests should be received by the SEC by 5:30 p.m. on April 22, 2008, and should be accompanied by proof of service on the applicant, in the form of an affidavit or, for lawyers, a certificate of service. Hearing requests should state the nature of the writer's interest, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Secretary, U.S. Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090. FOR FURTHER INFORMATION CONTACT: Diane L. Titus at
(202)551-6810, SEC, Division of Investment Management, Office of Investment Company Regulation, 100 F Street, NE., Washington, DC 20549-4041. Skyline Funds [File No. 811-5022] *Summary:* Applicant seeks an order declaring that it has ceased to be an investment company. On December 31, 2007, applicant transferred its assets to Skyline Special Equities Portfolio, a series of Managers AMG Funds, based on net asset value. Expenses of $393,155 incurred in connection with the reorganization were paid by Managers Investment Group LLC, the acquiring fund's investment adviser, and Skyline Asset Management, L.P., applicant's investment adviser. *Filing Dates:* The application was filed on March 7, 2008, and amended on March 26, 2008. *Applicant's Address:* 311 South Wacker Dr., Suite 4500, Chicago, IL 60606. Excelsior Private Equity Fund II, Inc. [File No. 811-8149] *Summary:* Applicant, a closed-end investment company, seeks an order declaring that it has ceased to be an investment company. On October 29, 2007, applicant made a final liquidating distribution to its shareholders, based on net asset value. Expenses of $475,230 incurred in connection with the liquidation were paid by applicant and UST Advisers, Inc., applicant's investment adviser. *Filing Dates:* The application was filed on January 29, 2008, and amended on March 26, 2008. *Applicant's Address:* 225 High Ridge Rd., Stamford, CT 06905. The Munder @Vantage Fund [File No. 811-9937] *Summary:* Applicant, a closed-end investment company, seeks an order declaring that it has ceased to be an investment company. On December 14, 2007, applicant transferred its assets to Munder Internet Fund, a series of Munder Series Trust, based on net asset value. Expenses of approximately $155,530 incurred in connection with the reorganization were paid by Munder Capital Management, applicant's investment adviser. Applicant has retained approximately $14,200 in cash to pay certain outstanding liabilities. *Filing Dates:* The application was filed on March 3, 2008, and amended on March 26, 2008. *Applicant's Address:* 480 Pierce St., Birmingham, MI 48009. Dreyfus Balanced Fund, Inc. [File No. 811-7068] *Summary:* Applicant seeks an order declaring that it has ceased to be an investment company. On December 17, 2004, applicant transferred its assets to Dreyfus Premier Balanced Opportunity Fund, a corresponding series of Dreyfus Premier Manager Funds II, based on net asset value. Expenses of $64,000 incurred in connection with the reorganization were paid by The Dreyfus Corporation, applicant's investment adviser. *Filing Dates:* The application was filed on January 30, 2008, and amended on March 20, 2008. *Applicant's Address:* c/o The Dreyfus Corporation, 200 Park Ave., New York, NY 10166. SEI Index Funds [File No. 811-4283] *Summary:* Applicant seeks an order declaring that it has ceased to be an investment company. On September 14, 2007, applicant transferred its assets to S&P 500 Index Fund, a series of SEI Institutional Managed Trust, based on net asset value. Expenses of $148,500 incurred in connection with the reorganization were paid by applicant and SEI Investment Management Corporation, applicant's investment adviser. *Filing Date:* The application was filed on March 3, 2008. *Applicant's Address:* One Freedom Valley Dr., Oaks, PA 19456. HBI Equity Trust, Series 1 [File No. 811-8184] *Summary:* Applicant, a unit investment trust, seeks an order declaring that it has ceased to be an investment company. On May 15, 2001, applicant made a liquidating distribution to its unitholders, based on net asset value. Applicant incurred no expenses in connection with the liquidation. *Filing Date:* The application was filed on February 19, 2008. *Applicant's Address:* 222 South Riverside Plaza, 7th Floor, Chicago, IL 60606. Private Asset Management Fund [File No. 811-21049] *Summary:* Applicant seeks an order declaring that it has ceased to be an investment company. On December 27, 2007, applicant made a liquidating distribution to its shareholders based on net asset value. Expenses of $2,540 incurred in connection with the liquidation were paid by Private Asset Management, Inc., applicant's investment adviser. *Filing Date:* The application was filed on February 25, 2008. *Applicant's Address:* 11995 El Camino Real, Suite 303, San Diego, CA 92130. Alliance All-Market Advantage Fund, Inc. [File No. 811-8702] *Summary:* Applicant, a closed-end investment company, seeks an order declaring that it has ceased to be an investment company. On February 1, 2008, applicant transferred its assets to AllianceBernstein Large Cap Growth Fund, Inc., based on net asset value. Expenses of $260,000 incurred in connection with the reorganization were paid by applicant. *Filing Date:* The application was filed on February 21, 2008. *Applicant's Address:* 1345 Avenue of the Americas, New York, NY 10105. Oppenheimer Emerging Technologies Fund [File No. 811-9845] *Summary:* Applicant seeks an order declaring that it has ceased to be an investment company. On October 26, 2007, applicant transferred its assets to Oppenheimer Capital Appreciation Fund, based on net asset value. Expenses of approximately $102,108 incurred in connection with the reorganization were paid by applicant. *Filing Date:* The application was filed on March 11, 2008. *Applicant's Address:* 6803 South Tucson Way, Centennial, CO 80112. Fortress Pinnacle Investment Fund LLC [File No. 811-21232] *Summary:* Applicant, a closed-end investment company, seeks an order declaring that it has ceased to be an investment company. On November 27, 2007, applicant distributed to its preferred shareholders cash payments equal to the face amount of their securities plus preferred dividends accrued. On January 22, 2008, applicant made a liquidating distribution to its common shareholders, based on net asset value. Expenses of $195,000 incurred in connection with the liquidation will be paid by applicant. Applicant has retained approximately $260,159 in cash to cover the outstanding expenses. After these expenses have been paid, remaining monies will be distributed pro rata to the common shareholders. *Filing Dates:* The application was filed on January 30, 2008, and amended on March 11, 2008. *Applicant's Address:* c/o Skadden, Arps, Slate, Meagher & Flom LLP, Four Times Sq., New York, NY 10036. Atlas Insurance Trust [File No. 811-8041] *Summary:* Applicant seeks an order declaring that it has ceased to be an investment company. On February 26, 2007, applicant made a liquidating distribution to its shareholders, based on net asset value. Applicant incurred no expenses in connection with the liquidation. *Filing Dates:* The application was filed on December 19, 2007, and amended on January 31, 2008. *Applicant's Address:* 794 Davis Street, San Leandro, CA 94577. For the Commission, by the Division of Investment Management, pursuant to delegated authority. Florence E. Harmon, Deputy Secretary. [FR Doc. E8-6873 Filed 4-2-08; 8:45 am] BILLING CODE 8011-01-P SECURITIES AND EXCHANGE COMMISSION [Investment Company Act Release No. 28228; 812-13368] Kohlberg Capital Corporation; Notice of Application March 28, 2008. AGENCY: Securities and Exchange Commission (the “Commission”). ACTION: Notice of an application for an order under section 61(a)(3)(B) of the Investment Company Act of 1940 (the “Act”). Summary of Application: Applicant, Kohlberg Capital Corporation (“Kohlberg Capital”), requests an order approving the proposal to grant stock options to directors who are not also employees or officers of Kohlberg Capital (the “Non-Employee Directors”) under its 2008 Non-Employee Director Plan (the “Plan”). Filing Dates: The application was filed on February 27, 2007, and amended on February 13, 2008, and March 21, 2008. Applicants have agreed to file an amendment to the application during the notice period, the substance of which is reflected in this notice. Hearing or Notification of Hearing: An order granting the application will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving applicant with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on April 22, 2008, and should be accompanied by proof of service on applicant, in the form of an affidavit or, for lawyers, a certificate of service. Hearing requests should state the nature of the writer's interest, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary. ADDRESSES: Secretary, U.S. Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090; Applicant, 295 Madison Avenue, 6th Floor, New York, NY, 10017. FOR FURTHER INFORMATION CONTACT: Bruce R. MacNeil, Senior Counsel, at
(202)551-6817, or Julia Kim Gilmer, Branch Chief, at
(202)551-6821 (Division of Investment Management, Office of Investment Company Regulation). SUPPLEMENTARY INFORMATION: The following is a summary of the application. The complete application is available for a fee at the Public Reference Desk, U.S. Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-0102 (telephone 202-551-5850). Applicant's Representations 1. Kohlberg Capital, a Delaware corporation, is a business development company (“BDC”) within the meaning of section 2(a)(48) of the Act. 1 Kohlberg Capital provides debt and equity growth capital to privately-held middle market companies and its investment objective is to generate current income and capital appreciation from the investments made by those companies in senior secured term loans, mezzanine debt and selected equity investments. Kohlberg Capital may also invest in loans to larger, publicly traded companies, high-yield bonds, distressed debt securities and debt and equity securities issued by collateralized debt obligation funds. Kohlberg Capital's business and affairs are managed under the direction of its board of directors (“Board”). Kohlberg Capital does not have an external investment adviser within the meaning of section 2(a)(20) of the Act. 1 Section 2(a)(48) defines a BDC to be any closed-end investment company that operates for the purpose of making investments in securities described in sections 55(a)(1) through 55(a)(3) of the Act and makes available significant managerial assistance with respect to the issuers of such securities. 2. Kohlberg Capital requests an order under section 61(a)(3)(B) of the Act that would approve the proposal under the Plan to issue stock options to Non-Employee Directors to purchase shares of Kohlberg Capital's common stock, $0.01 par value per share (“Common Stock”). Kohlberg Capital has a seven member Board, four of whom are not “interested persons” (as defined in section 2(a)(19) of the Act) (“Disinterested Directors”). The Non-Employee Directors are all Disinterested Directors, but it is possible that Kohlberg Capital may have Non-Employee Directors in the future who are interested persons of Kohlberg Capital. 2 The Board approved the Plan on February 5, 2008. Kohlberg Capital's shareholders will vote on the Plan at its 2008 annual meeting of shareholders. 2 Each Non-Employee Director receives an annual fee of $25,000, $500 for each committee meeting attended, and reimbursement of reasonable out-of-pocket expenses incurred in attending Board meetings. Each Non-Employee Director who serves as chairperson of a Board committee receives an additional $5,000 per year, except that the chairperson of the audit committee receives $10,000 per year. 3. Kohlberg Capital's Non-Employee Directors are eligible to receive stock options under the Plan. The Plan provides for the issuance of a maximum of 75,000 shares of Kohlberg Capital's Common Stock, in the aggregate, to Non-Employee Directors. The Plan also provides that each Non-Employee Director will automatically be granted options to purchase 5,000 shares of Kohlberg Capital's Common Stock on the date of each annual meeting of shareholders of Kohlberg Capital during the term of the Plan. One-half of the grant of options will vest immediately and the remaining one-half of the grant of options will vest on the earlier of
(a)the first anniversary of the date of the grant, or
(b)the date immediately preceding the next annual meeting of shareholders. A Non-Employee Director who is appointed to serve on the Board outside the annual election cycle will automatically be granted options for a number of shares of Common Stock equal to the product of
(x)the number of full months remaining until the next annual meeting of shareholders divided by 12 and
(y)5,000. One-half of the pro-rata grant will vest immediately and the remaining one-half of the pro-rata grant on the earlier of
(a)the first anniversary of the preceding annual meeting of shareholders, or
(b)the date immediately preceding the next annual meeting of shareholders. 4. Under the terms of the Plan, the exercise price of an option will not be less than the current market value of, or if no such market value exists, the current net asset value per share of, Kohlberg Capital's Common Stock on the date of the issuance of the option. 3 Options granted under the Plan will expire within ten years from the date of grant and may not be assigned or transferred other than by will or the laws of descent and distribution. 3 Under the Plan, “current market value” is the closing price of the Common Stock on the NASDAQ Global Select Market on the date the option is granted. 5. Kohlberg Capital's officers and employees have been eligible to receive options under Kohlberg Capital's 2006 equity incentive plan under which Non-Employee Directors are not entitled to participate (the “Employee Plan”). As of December 31, 2007, Kohlberg Capital had 18,017,699 shares of Common Stock outstanding. 4 The 75,000 shares of Kohlberg Capital's Common Stock that may be issued to Non-Employee Directors under the Plan represent 0.42% of Kohlberg Capital's outstanding voting securities as of December 31, 2007. As of the same date, Kohlberg Capital had no outstanding warrants or rights to purchase its voting securities and the amount of voting securities that would result from the exercise of all outstanding options issued to Kohlberg Capital's officers and employees under the Employee Plan would be 1,315,000 shares of Common Stock, or approximately 7.30% of Kohlberg Capital's outstanding voting securities. 4 Kohlberg Capital's Common Stock constitutes the only voting security of applicant currently outstanding. Applicant's Legal Analysis 1. Section 63(3) of the Act permits a BDC to sell its common stock at a price below current net asset value upon the exercise of any option issued in accordance with section 61(a)(3). Section 61(a)(3)(B) provides, in pertinent part, that a BDC may issue to its non-employee directors options to purchase its voting securities pursuant to an executive compensation plan, provided that:
(a)The options expire by their terms within ten years;
(b)the exercise price of the options is not less than the current market value of the underlying securities at the date of the issuance of the options, or if no market exists, the current net asset value of the voting securities;
(c)the proposal to issue the options is authorized by the BDC's shareholders, and is approved by order of the Commission upon application;
(d)the options are not transferable except for disposition by gift, will or intestacy;
(e)no investment adviser of the BDC receives any compensation described in section 205(a)(1) of the Investment Advisers Act of 1940, except to the extent permitted by clause (b)(1) or (b)(2) of that section; and
(f)the BDC does not have a profit-sharing plan as described in section 57(n) of the Act. 2. In addition, section 61(a)(3) provides that the amount of the BDC's voting securities that would result from the exercise of all outstanding warrants, options, and rights at the time of issuance may not exceed 25% of the BDC's outstanding voting securities, except that if the amount of voting securities that would result from the exercise of all outstanding warrants, options, and rights issued to the BDC's directors, officers, and employees pursuant to an executive compensation plan would exceed 15% of the BDC's outstanding voting securities, then the total amount of voting securities that would result from the exercise of all outstanding warrants, options, and rights at the time of issuance will not exceed 20% of the outstanding voting securities of the BDC. 3. Kohlberg Capital represents that its proposal to grant certain stock options to Non-Employee Directors under the Plan meets all the requirements of section 61(a)(3)(B). Kohlberg Capital states that the Board is actively involved in the oversight of its affairs and that it relies extensively on the judgment and experience of its Board. In addition to their duties as Board members generally, Kohlberg Capital states that the Non-Employee Directors provide guidance and advice on operational matters, asset valuation and strategic direction, as well as serving on committees. Kohlberg Capital believes that the availability of options under the Plan will provide significant at-risk incentives to Non-Employee Directors to remain on the Board and devote their best efforts to ensure Kohlberg Capital's success. Kohlberg Capital states that the options will provide a means for the Non-Employee Directors to increase their ownership interests in Kohlberg Capital, thereby ensuring close identification of their interests with those of Kohlberg Capital and its shareholders. Kohlberg Capital asserts that by providing incentives such as options, it will be better able to maintain continuity in the Board's membership and to attract and retain the highly experienced, successful and dedicated business and professional people who are critical to Kohlberg Capital's success as a BDC. 4. Kohlberg Capital states that the amount of voting securities that would result from the exercise of all outstanding options issued to its officers and employees under the Employee Plan would be 1,315,000 shares of Kohlberg Capital's Common Stock, or approximately 7.30% of its outstanding voting securities as of December 31, 2007, which is below the percentage limitations in the Act. Kohlberg Capital asserts that, given the relatively small amount of Common Stock issuable to Non-Employee Directors upon their exercise of options under the Plan, the exercise of such options would not, absent extraordinary circumstances, have a substantial dilutive effect on the net asset value of Kohlberg Capital's Common Stock. For the Commission, by the Division of Investment Management, pursuant to delegated authority. Florence E. Harmon, Deputy Secretary. [FR Doc. E8-6876 Filed 4-2-08; 8:45 am] BILLING CODE 8011-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-57576; File No. SR-CBOE-2008-33] Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of Proposed Rule Change, as Modified by Amendment No. 1 Thereto, Relating to the Penny Pilot Program March 28, 2008. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”), 1 and Rule 19b-4 thereunder, 2 notice is hereby given that on March 25, 2008, the Chicago Board Options Exchange, Incorporated (“CBOE” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”) the proposed rule change as described in Items I, II, and III below, which Items have been substantially prepared by the CBOE. On March 27, 2008, the Exchange submitted Amendment No. 1 to the proposed rule change. 3 The Exchange has designated this proposal as one constituting a stated policy, practice, or interpretation with respect to the meaning, administration, or enforcement of an existing rule under Section 19(b)(3)(A)(i) of the Act 4 and Rule 19b-4(f)(1) thereunder, 5 which renders the proposal effective upon filing with the Commission. The Commission is publishing this notice to solicit comments on the proposed rule change, as modified by Amendment No. 1, from interested persons. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. 3 In connection with Amendment No. 1 the Exchange submitted a Regulatory Circular that CBOE disseminated on March 25, 2008, identifying the twenty-eight option classes being added to the Penny Pilot on March 28, 2008. The circular constitutes changes to the text of CBOE's rules. 4 15 U.S.C. 78s(b)(3)(A)(i). 5 17 CFR 240.19b-4(f)(1). I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change CBOE proposes to implement the second phase of the expansion of the industry-wide Penny Pilot Program. The text of the proposed rule change is available on the Exchange's Web site ( *http://www.cboe.org/legal* ), at the CBOE's Office of the Secretary, and at the Commission's Public Reference Room. II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The CBOE has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements. A. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose CBOE proposes to amend its rules in connection with the second phase of the expansion of the industry-wide Penny Pilot Program on March 28, 2008. The Penny Pilot Program commenced on January 26, 2007, and was later expanded (Phase I) on September 27, 2007 with the addition of twenty-two option classes. Currently, thirty-five option classes participate in the Penny Pilot Program. 6 6 CBOE also quotes and trades two index option classes, XSP and DJX, in the same minimum increments as the Pilot classes (except for options on the QQQQs, in which the minimum increment is $0.01 for all option series). Phase II of the expansion will begin on March 28, 2008, last for one year until March 27, 2009, and add the following twenty-eight option classes to the Pilot Program. 7 These twenty-eight new classes will be among the most active, multiply-listed option classes. 7 CBOE issued a Regulatory Circular, which is published on its Web site, identifying these twenty-eight option classes. Goldman Sachs Group, Inc.
(GS)Countrywide Financial Corporation
(CFC)Bank of America Corporation
(BAC)iShares MSCI Emerging Mkts. Index Fund
(EEM)Merrill Lynch & Co., Inc.
(MER)Vale
(RIO)EMC Corporation
(EMC)Exxon Mobil Corporation
(XOM)Wal-Mart Stores, Inc.
(WMT)The Home Depot, Inc.
(HD)Valero Energy Corporation
(VLO)Alcoa Inc.
(AA)Dell Inc.
(DELL)SanDisk Corporation
(SNDK)The Bear Stearns Companies, Inc.
(BSC)Pfizer Inc
(PFE)eBay Inc.
(EBAY)Halliburton Company
(HAL)Lehman Brothers Holdings Inc.
(LEH)JPMorgan Chase & Co.
(JPM)Washington Mutual, Inc.
(WM)Ford Motor Company
(F)Target Corporation
(TGT)American International Group, Inc.
(AIG)Newmont Mining Corporation
(NEM)Verizon Communications Inc.
(VZ)Mini-NDX Index Options
(MNX)Starbucks Corporation
(SBUX)The minimum increments for all classes in the Penny Pilot Program, except for the QQQQs, will continue to be $0.01 for all option series below $3 (including LEAPS), and $0.05 for all option series $3 and above (including LEAPS). For QQQQs, the minimum increment will remain $0.01 for all option series. CBOE intends to continue to implement the quote mitigation strategies that it previously identified in its rule filings relating to the Penny Pilot Program. Finally, CBOE intends to submit to the Commission reports analyzing the Penny Pilot Program for the following time periods: • February 1, 2008-July 31, 2008 • August 1, 2008-January 31, 2009 CBOE anticipates that its reports will assess the impact of penny pricing on market quality and options systems capacity. CBOE's reports should be submitted within one month following the end of the period being analyzed. 2. Statutory Basis The Exchange believes the proposed rule change is consistent with the Act and the rules and regulations under the Act applicable to a national securities exchange and, in particular, the requirements of Section 6(b) of the Act. 8 Specifically, the Exchange believes the proposed rule change is consistent with the Section 6(b)(5) Act 9 requirements that the rules of an exchange be designed to promote just and equitable principles of trade, to prevent fraudulent and manipulative acts, and, in general, to protect investors and the public interest. 8 15 U.S.C. 78f(b). 9 15 U.S.C. 78f(b)(5). B. Self-Regulatory Organization's Statement on Burden on Competition The proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others No written comments were solicited or received with respect to the proposed rule change. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action The proposed rule change has become effective pursuant to Section 19(b)(3)(A)(i) of the Act 10 and Rule 19b-4(f)(1) thereunder, 11 because it constitutes a stated policy, practice, or interpretation with respect to the meaning, administration, or enforcement of an existing rule. 10 15 U.S.C. 78s(b)(3)(A)(i). 11 17 CFR 240.19b-4(f)(1). At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. 12 12 For purposes of calculating the 60-day period within which the Commission may summarily abrogate the proposed rule change under Section 19(b)(3)(C) of the Act, the Commission considers the period to commence on March 27, 2008, the date on which CBOE filed Amendment No. 1. *See* 15 U.S.C. 78s(b)(3)(C). IV. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission's Internet comment form ( *http://www.sec.gov/rules/sro.shtml* ); or • Send an e-mail to *rule-comments@sec.gov* . Please include File Number SR-CBOE-2008-33 on the subject line. Paper Comments • Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090. All submissions should refer to File Number SR-CBOE-2008-33. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site ( *http://www.sec.gov/rules/sro.shtml* ). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room, 100 F Street, NE., Washington, DC 20549, on official business days between the hours of 10 a.m. and 3 p.m. Copies of the filing also will be available for inspection and copying at the principal office of the CBOE. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-CBOE-2008-33 and should be submitted on or before April 24, 2008. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority. 13 13 17 CFR 200.30-3(a)(12). Florence E. Harmon, Deputy Secretary. [FR Doc. E8-6872 Filed 4-2-08; 8:45 am] BILLING CODE 8011-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-57572; File No. SR-FINRA-2008-010] Self-Regulatory Organizations: Financial Industry Regulatory Authority, Inc.; Notice of Filing of Proposed Rule Change Relating to Amendments to the Codes of Arbitration Procedure To Establish New Procedures for Arbitrators To Follow When Considering Requests for Expungement Relief March 27, 2008. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”) 1 and Rule 19b-4 thereunder, 2 notice is hereby given that on March 13, 2008, Financial Industry Regulatory Authority, Inc. (“FINRA”) (f/k/a National Association of Securities Dealers, Inc. (“NASD”)) filed with the Securities and Exchange Commission (“SEC” or “Commission”) the proposed rule change as described in Items I, II, and III below, which Items have been prepared by FINRA. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change FINRA is proposing Rule 12805 of the Code of Arbitration Procedure for Customer Disputes (“Customer Code”) and Rule 13805 of the Code of Arbitration Procedure for Industry Disputes (“Industry Code”) to establish new procedures that arbitrators must follow when considering requests for expungement relief under Rule 2130. Below is the text of the proposed rule change. All the text is new. 12805. Expungement of Customer Dispute Information Under Rule 2130 In order to grant expungement of customer dispute information under Rule 2130, the panel must:
(a)Hold a recorded hearing session (by telephone or in person) regarding the appropriateness of expungement. This paragraph will apply to cases administered under Rule 12800 even if a customer did not request a hearing on the merits.
(b)In cases involving settlements, review settlement documents and consider the amount of payments made to any party and any other terms and conditions of a settlement.
(c)Indicate in the arbitration award which of the Rule 2130 grounds for expungement serve(s) as the basis for its expungement order and provide a brief written explanation of the reason(s) for its finding that one or more Rule 2130 grounds for expungement applies to the facts of the case.
(d)Assess all forum fees for hearing sessions in which the sole topic is the determination of the appropriateness of expungement against the parties requesting expungement relief. 13805. Expungement of Customer Dispute Information under Rule 2130 In order to grant expungement of customer dispute information under Rule 2130, the panel must:
(a)Hold a recorded hearing session (by telephone or in person) regarding the appropriateness of expungement. This paragraph will apply to cases administered under Rule 13800 even if a claimant did not request a hearing on the merits.
(b)In cases involving settlements, review settlement documents and consider the amount of payments made to any party and any other terms and conditions of a settlement.
(c)Indicate in the arbitration award which of the Rule 2130 grounds for expungement serve(s) as the basis for its expungement order and provide a brief written explanation of the reason(s) for its finding that one or more Rule 2130 grounds for expungement applies to the facts of the case.
(d)Assess all forum fees for hearing sessions in which the sole topic is the determination of the appropriateness of expungement against the parties requesting expungement relief. II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, FINRA included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. FINRA has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements. A. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose FINRA is proposing to amend its Customer Code and Industry Code to establish new procedures that arbitrators must follow when considering requests for expungement relief under Rule 2130. The procedures are designed to:
(1)Make sure that arbitrators have the opportunity to consider the facts that support or weigh against a decision to grant expungement; and
(2)ensure that expungement occurs only when the arbitrators find and document one of the narrow grounds specified in Rule 2130. Proposed Rules 12805 and 13805 would require arbitrators considering an expungement request to hold a recorded hearing session by telephone or in person, provide a brief written explanation of the reasons for ordering expungement, and, in cases involving a settlement, review the settlement documents to examine the amount paid to any party and any other terms and conditions of the settlement that might raise concerns about the associated person's involvement in the alleged misconduct before awarding expungement. The proposed rule change would provide that the panel must assess forum fees for hearing sessions held solely for the purpose of considering expungement against the parties requesting the relief. The proposed rule change would not affect FINRA's current practice of permitting expungement, without judicial intervention, of information from the Central Registration Depository (“CRD”) system as directed by arbitrators in intra-industry arbitration awards that involve associated persons and firms based on the defamatory nature of the information ordered expunged. 3 3 In its original filing with the Commission proposing Rule 2130 ( *see* SR-NASD-2002-168), FINRA (then known as NASD) explained in Footnote 2 that “NASD may execute, without a court order, arbitration awards rendered in disputes between registered representatives and firms that contain expungement directives in which the arbitration panel states that expungement relief is being granted because of the defamatory nature of the information. These expungements are not covered by the moratorium and will not be covered by the proposed rules and policies.” In Amendment No. 1 to that filing (at page five), FINRA reiterated this point by stating “NASD may execute, without a court order, an arbitration award rendered in a dispute between a member and a current or former associated person that contains an expungement directive in which the arbitration panel states that expungement relief is being granted based on the defamatory nature of the information.” *See also NASD Notice to Members 04-16* (March 2004) n. 4. Background The CRD system, an online registration and licensing system, contains information regarding broker-dealers and their associated persons. It contains administrative information (e.g., personal, educational, and employment history) and disclosure information (e.g., criminal matters, regulatory and disciplinary actions, civil judicial actions, and information relating to customer disputes). Members of the securities industry, state and federal regulators, and self-regulatory organizations use the CRD system. Although public investors do not have access to the CRD system, much of the information in that system is available to investors through FINRA BrokerCheck and individual state disclosure programs. 4 FINRA recognizes that accurate and complete reporting in the CRD system is an important aspect of investor protection. 4 FINRA BrokerCheck is a free online tool to help investors check the background of current and former FINRA-registered securities firms and brokers. FINRA operates the CRD system pursuant to policies developed jointly with the North American Securities Administrators Association (NASAA). FINRA works with the SEC, NASAA, other members of the regulatory community, and broker-dealer firms to establish policies and procedures reasonably designed to ensure that information submitted to and maintained in the CRD system is accurate and complete. These procedures, among other things, cover expungement of information from the CRD system. In December 2003, the SEC approved NASD Rule 2130, which contains procedures for expungement of customer dispute information from the CRD System. 5 It requires that FINRA members or associated persons name FINRA as an additional party in any court proceeding in which they seek an order to expunge customer dispute information or request confirmation of an award containing an order of expungement. 5 Securities Exchange Act Release No. 48933 (December 16, 2003), 68 FR 74667 (December 24, 2003). Rules 2130 applies to all cases filed on or after April 12, 2004; *see NASD Notice to Members 04-16* (March 2004). Under Rule 2130, FINRA may waive the requirement to be named as a party if it determines that the expungement relief is based on an affirmative judicial or arbitral finding that:
(i)The claim, allegation, or information is factually impossible or clearly erroneous;
(ii)the registered person was not involved in the alleged investment-related sales practice violation, forgery, theft, misappropriation, or conversion of funds; or
(iii)the claim, allegation, or information is false. If expungement relief is based on a judicial or arbitral finding other than as enumerated immediately above, FINRA may also waive the requirement to be named as a party if it determines that the expungement relief and accompanying findings on which it is based are meritorious and that expungement would not have a material adverse effect on investor protection, the integrity of the CRD system, or regulatory requirements. Proposed new Rules 12805 and 13805 would set forth procedures that arbitrators must follow before recommending expungement of information related to arbitration cases from an associated person's CRD record. If the arbitrators do not fully adhere to these procedures, FINRA may determine not to waive the obligation under Rule 2130 to be named as a party to an expungement proceeding. Sometimes, arbitrators will order expungement at the conclusion of an evidentiary hearing on the merits of the case. More often, however, arbitrators will order expungement at the request of a party to facilitate settlement of the dispute. For example, customers may receive monetary compensation as part of a settlement, the terms of which require the customer to consent to (or not oppose) the entry of a stipulated award containing an order of expungement. In such cases, FINRA expected that arbitrators would examine the amount paid to any party and any other terms and conditions of the settlement that might raise concerns about the associated person's behavior before awarding expungement. 6 Contrary to this expectation, however, arbitrators often did not inquire into the terms of settlement agreements. 6 *See NASD Notice to Members 04-43* (June 2004). In order for arbitrators to perform the critical fact finding necessary before granting expungement, the proposed rule change would require arbitrators to hold a recorded hearing session by telephone or in person. The requirement of a hearing session would ensure that arbitrators consider the facts that support or weigh against a decision to grant expungement. In cases involving settlements, the proposal would require arbitrators to review the settlement documents, consider the amount paid to any party, and consider any other terms and conditions of the settlement that might raise concerns about the associated person's involvement in the alleged misconduct before awarding expungement. The proposed rule change would require arbitrators to indicate which of the Rule 2130 grounds for expungement serve as the basis for their expungement order, and provide a brief written explanation of the reasons for ordering expungement under Rule 2130. This new requirement would address issues concerning judicial confirmation of awards containing orders of expungement, as demonstrated in a recent state court case 7 in which the court expressed concern that the arbitrators did not describe “a single fact or circumstance” 8 for their conclusion that the claims were factually impossible or clearly erroneous (one of the grounds for expungement enumerated in Rule 2130). As a result, the court ordered the arbitrators to conduct a hearing to clarify the facts and circumstances that led them to order expungement. The proposed requirement of a written explanation would provide regulators with additional insight into why arbitrators awarded expungement based on what might appear to be questionable facts and circumstances (e.g., cases involving payment of significant monetary compensation to the customer). 9 7 *Matter of Sage, Rutty & Co., Inc.* v. *Salzberg,* Index No. 2007-01942 (N.Y. Sup. Ct. May 30, 2007). 8 *Id.* at 4. 9 In such cases, the payment may be based on the behavior of someone other than the associated person who is seeking expungement. The proposed rule change also would require the arbitrators to assess all forum fees for hearing sessions in which the sole topic is the determination of the appropriateness of expungement against the parties requesting expungement relief. In cases that settle, industry parties often seek expungement. In such cases, parties generally present arguments solely on the issue of expungement. In these circumstances, FINRA believes the fee for that hearing session should not be assessed against a customer. 10 10 In those situations where the issue of expungement does not constitute the sole topic considered by the arbitrators during a hearing session, the panel will determine the hearing session fee that each party must pay. See Rules 12902(a) and 13902(a). In cases administered under Rule 12800 or Rule 13800 (Simplified Arbitration), a hearing on the merits normally is held only at the request of a customer or claimant, respectively. The proposed rule change would clarify that if parties request expungement relief in such cases, a hearing session would be held to determine the appropriateness of the request even if a hearing on the merits was not requested. Any forum fees for hearing sessions associated with a request for expungement would be assessed against the parties making the request. As noted above, the proposed rule change would not affect FINRA's current practice of permitting expungement, without judicial intervention, of information from the CRD system as directed by arbitrators in intra-industry arbitration awards that involve associated persons and firms based on the defamatory nature of the information ordered expunged. In allowing expungement relief without judicial intervention under such circumstances, FINRA believes that it is fairly balancing the interests of the brokerage community and others in expunging defamatory statements with FINRA's interests in investor protection and the integrity of the CRD system. 2. Statutory Basis FINRA believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act, 11 which requires, among other things, that FINRA rules must be designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, and, in general, to protect investors and the public interest. The new procedures would enhance the integrity of the information in the CRD system and would ensure that investor protection is not compromised when arbitrators order expungement of information related to arbitration cases from an associated person's CRD record. 11 15 U.S.C. 78o-3(b)(6). B. Self-Regulatory Organization's Statement on Burden on Competition FINRA does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received from Members, Participants, or Others Written comments were neither solicited nor received. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action Within 35 days of the date of publication of this notice in the **Federal Register** or within such longer period
(i)as the Commission may designate up to 90 days of such date if it finds such longer period to be appropriate and publishes its reasons for so finding or
(ii)as to which the self-regulatory organization consents, the Commission will:
(A)By order approve such proposed rule change, or
(B)institute proceedings to determine whether the proposed rule change should be disapproved. IV. Solicitation of Comments Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission's Internet comment form ( *http://www.sec.gov/rules/sro.shtml* ); or • Send an e-mail to *rule-comments@sec.gov.* Please include File Number SR-FINRA-2008-010 on the subject line. Paper Comments • Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090. All submissions should refer to File Number SR-FINRA-2008-010. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site ( *http://www.sec.gov/rules/sro.shtml* ). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room on official business days between the hours of 10 a.m. and 3 p.m. Copies of such filing also will be available for inspection and copying at the principal office of FINRA. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-FINRA-2008-010 and should be submitted on or before April 24, 2008. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority. 12 12 17 CFR 200.30-3(a)(12). Florence E. Harmon, Deputy Secretary. [FR Doc. E8-6870 Filed 4-2-08; 8:45 am] BILLING CODE 8011-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-57575; File No. SR-Phlx-2008-06] Self-Regulatory Organizations; Philadelphia Stock Exchange, Inc.; Order Approving Proposed Rule Change, as Modified by Amendment No. 1 Thereto, Relating to U.S. Dollar-Settled FCO Spot Prices March 28, 2008. I. Introduction On January 28, 2008, the Philadelphia Stock Exchange, Inc. (“Phlx” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”) 1 and Rule 19b-4 thereunder, 2 a proposed rule change to amend the definition of Spot Price so that the Exchange may use certain bid and ask prices (“Thomson Quotes”) provided by Tenfore Systems Limited (“Tenfore”) through Thomson Financial LLC (“Thomson”) as Spot Prices in determining applicable margin requirements and strike prices for the Exchange's U.S. dollar-settled foreign currency options (“FCOs”). On February 19, 2008, the Exchange filed Amendment No. 1 to the proposed rule change. The proposed rule change, as modified by Amendment No. 1, was published for comment in the **Federal Register** on February 27, 2008. 3 The Commission received no comments on the proposal. This order approves the proposed rule change, as modified by Amendment No. 1. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. 3 *See* Securities Exchange Act Release No. 57361 (February 20, 2008), 73 FR 10503. II. Description of the Proposal Phlx proposes to amend the definition of Spot Price to permit the Exchange to use the Thomson Quotes to calculate the Spot Prices in connection with the Exchange's determination of strike prices and margin requirements for its U.S. dollar-settled FCOs. 4 Under Phlx Rule 1012, “Series of Options Open for Trading,” the Exchange is required to refer to the spot prices of foreign currencies in determining strike prices for U.S. dollar-settled FCOs. Further, Phlx Rule 722, “Margin Accounts,” requires the Exchange to establish margin requirements for FCO transactions based upon the spot price of the foreign currency underlying the option. 4 The Exchange is also proposing to substitute the term “Spot Prices” for the defined term “Spot Sales Prices” in Rule 1000(b)(16), as a clarification that this defined term includes both bids and offers made by participants in the foreign currency markets (as opposed to offers only). In addition, the Exchange is proposing to amend Rule 722 such that the current spot market price of an underlying foreign currency shall be determined using spot prices at 4 (the close of trading for U.S. dollar-settled FCOs) rather than 2:30 (the close of trading for physical delivery FCOs). Currently, the Exchange receives Spot Prices that are contributor bank quotes from Reuters in real-time and takes the weighted average of the various quotes to determine the Phlx's foreign currency spot price. 5 The Exchange now seeks to amend the definition of Spot Prices to include foreign currency quotes of entities other than commercial banks, so that the Exchange can use the Thomson Quotes to calculate Spot Prices for the setting of margin requirements and strike prices and for any other necessary purposes in connection with Phlx's FCO contracts. Thomson Quotes are not limited to quotes from banks but also include quotes from other foreign currency market participants. 5 Until March 14, 2008, in connection with its physical delivery FCOs, when the Exchange received the bid and ask from the Reuters feed, the Exchange computed the average and distributed that value as the foreign currency spot value over the facilities of the Options Price Reporting Authority (“OPRA”) to vendors and individual customers. The Exchange ceased disseminating this foreign currency spot value after March 14, 2008, in connection with the planned delisting of its physical delivery FCO contracts. Under the proposal, the Exchange will receive the latest Thomson Quotes from Thomson, which in turn obtains this data from Tenfore. 6 With the exception of the Japanese yen, the Exchange will then calculate the average of the bid and ask received to determine the current spot market price that the Exchange will use for purposes of calculating margin requirements and strike prices with respect to U.S. dollar-settled FCOs. Because the Thomson Quote is expressed differently for the Japanese yen than for the other currencies (in foreign currency units per U.S. dollar rather than in U. S. dollars per unit of foreign currency), the spot price that Phlx will use for the Japanese yen will be the inverse of the average of the Thomson Quote bid and ask (that is, one divided by the average of the Thomson Quote bid and ask). 6 Tenfore has more than 21 contributors reporting, consisting of banks, spot currency portals, the European Central Bank, and brokers. Tenfore's bid and ask Spot Prices are at any given point in time the latest bid and ask supplied to Tenfore by the last in time of any Tenfore contributor to report. The Exchange will not disseminate the current spot market value it calculates based upon the Thomson Quotes. However, the Exchange currently does, and will continue to, disseminate its modified spot value, which is also based upon the Thomson Quotes, real-time over Network B of the Consolidated Tape Association. 7 The Exchange states that this modified spot value is more widely distributed, carried by more vendors, and more easily accessible than the Exchange's current foreign currency spot market price calculated on the basis of the bank quotes provided by Reuters. 7 The Exchange currently disseminates, over the facilities of the Consolidated Tape Association at least once every fifteen seconds while the Exchange is open for trading, a modified spot rate for currencies underlying U.S. dollar-settled FCOs. The Exchange does not propose to change the modified spot rate in this proposed rule change. *See* Securities Exchange Act Release Nos. 55513 (March 22, 2007), 72 FR 14636 (March 28, 2007) (SR-Phlx-2007-28) and 56034 (July 10, 2007), 72 FR 38853 (July 16, 2007) (SR-Phlx-2007-34). III. Discussion After careful review, the Commission finds that the proposed rule change, as amended, is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange and, in particular, with Section 6(b)(5) of the Act, 8 which requires, among other things, that the rules of a national securities exchange be designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to remove impediments to, and perfect the mechanism of, a free and open market and a national market system and, in general, to protect investors and the public interest. 9 8 15 U.S.C. 78f(b)(5). 9 In approving this proposed rule change, the Commission has considered the proposed rule's impact on efficiency, competition, and capital formation. *See* 15 U.S.C. 78c(f). The Commission believes that Exchange's use of Thomson Quotes for determining Spot Prices for the setting of margin requirements and strike prices for Phlx's U.S.-dollar settled FCOs is reasonable and should result in Phlx Spot Prices that are representative of foreign currency spot market prices. Although the Exchange will not disseminate the current Spot Prices it calculates based upon the Thomson Quotes, the Commission believes that sufficient venues exist for obtaining reliable information on the foreign currencies so that investors in U.S. dollar-settled FCOs can monitor the underlying spot market, including the Exchange's dissemination of a modified spot rate for foreign currencies at least once every fifteen seconds while the Exchange is open for trading. The Commission also notes that the Exchange has represented that it believes that the new method of calculating Phlx Spot Prices should, over time, produce only minor differences from the current method of determining Spot Prices. Accordingly, the Commission finds that the proposed rule change, as amended, is consistent with the Act. IV. Conclusion It is therefore ordered, pursuant to Section 19(b)(2) of the Act, 10 that the proposed rule change (SR-Phlx-2008-06), as modified by Amendment No. 1, be, and hereby is, approved. 10 15 U.S.C. 78s(b)(2). For the Commission, by the Division of Trading and Markets, pursuant to delegated authority. 11 11 17 CFR 200.30-3(a)(12). Florence E. Harmon, Deputy Secretary. [FR Doc. E8-6871 Filed 4-2-08; 8:45 am] BILLING CODE 8011-01-P SMALL BUSINESS ADMINISTRATION [Disaster Declaration #11202] Arkansas Disaster #AR-00019 AGENCY: U.S. Small Business Administration. ACTION: Notice. SUMMARY: This is a Notice of the Presidential declaration of a major disaster for Public Assistance Only for the State of Arkansas (FEMA-1751-DR), dated 03/26/2008. *Incident:* Severe Storms, Tornadoes, and Flooding. *Incident Period:* 03/18/2008 and continuing. DATES: *Effective Date:* 03/26/2008. *Physical Loan Application Deadline Date:* 05/27/2008. ADDRESSES: Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155. FOR FURTHER INFORMATION CONTACT: A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416. SUPPLEMENTARY INFORMATION: Notice is hereby given that as a result of the President's major disaster declaration on 03/26/2008, Private Non-Profit organizations that provide essential services of a governmental nature may file disaster loan applications at the address listed above or other locally announced locations. The following areas have been determined to be adversely affected by the disaster: Primary Counties: Baxter, Benton, Boone, Carroll, Clay, Conway, Craighead, Crawford, Faulkner, Franklin, Fulton, Greene, Hot Spring, Howard, Independence, Izard, Jackson, Johnson, Lawrence, Logan, Madison, Marion, Nevada, Newton, Pope, Randolph, Scott, Searcy, Sharp, Stone, Van Buren, Washington, White, Woodruff, Yell. The Interest Rates Are: Percent Other (Including Non-Profit Organizations) With Credit Available Elsewhere 5.250 Businesses and Non-Profit Organizations Without Credit Available Elsewhere 4.000 The number assigned to this disaster for physical damage is 11202. (Catalog of Federal Domestic Assistance Number 59008) Herbert L. Mitchell, Associate Administrator for Disaster Assistance. [FR Doc. E8-6944 Filed 4-2-08; 8:45 am] BILLING CODE 8025-01-P SMALL BUSINESS ADMINISTRATION [Disaster Declaration #11203 and #11204] Missouri Disaster #MO-00025 AGENCY: U.S. Small Business Administration. ACTION: Notice. SUMMARY: This is a Notice of the Presidential declaration of a major disaster for the State of MISSOURI (FEMA-1749-DR), dated 03/27/2008. *Incident:* Severe Storms and Flooding. *Incident Period:* 03/17/2008 and continuing. DATES: *Effective Date:* 03/27/2008. *Physical Loan Application Deadline Date:* 05/27/2008. *Economic Injury
(EIDL)Loan Application Deadline Date:* 12/23/2008. ADDRESSES: Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155. FOR FURTHER INFORMATION CONTACT: A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416. SUPPLEMENTARY INFORMATION: Notice is hereby given that as a result of the President's major disaster declaration on 03/27/2008, applications for disaster loans may be filed at the address listed above or other locally announced locations. The following areas have been determined to be adversely affected by the disaster: Primary Counties (Physical Damage and Economic Injury Loans): Bollinger, Carter, Christian, Franklin, Greene, Iron, Jasper, Jefferson, Maries, Newton, Oregon, Phelps, Pulaski, Reynolds, St. Francois, Stone, Texas, Washington, Wayne. Contiguous Counties (Economic Injury Loans Only): Missouri: Barry, Barton, Butler, Camden, Cape Girardeau, Crawford, Dade, Dallas, Dent, Douglas, Gasconade, Howell, Laclede, Lawrence, Madison, Mcdonald, Miller, Osage, Perry, Polk, Ripley, Saint Louis, Sainte Genevieve, Shannon, St. Charles, Stoddard, Taney, Warren, Webster, Wright. Arkansas: Carroll, Fulton, Randolph, Sharp. Illinois: Monroe. Kansas: Cherokee, Crawford. Oklahoma: Ottawa. *The Interest Rates are:* Percent For Physical Damage: Homeowners With Credit Available Elsewhere 5.500 Homeowners Without Credit Available Elsewhere 2.750 Businesses With Credit Available Elsewhere 8.000 Other (Including Non-Profit Organizations) With Credit Available Elsewhere 5.250 Businesses And Non-Profit Organizations Without Credit Available Elsewhere 4.000 For Economic Injury: Businesses & Small Agricultural Cooperatives Without Credit Available Elsewhere 4.000 The number assigned to this disaster for physical damage is 11203B and for economic injury is 112040. (Catalog of Federal Domestic Assistance Numbers 59002 and 59008) Herbert L. Mitchell, Associate Administrator for Disaster Assistance. [FR Doc. E8-6942 Filed 4-2-08; 8:45 am] BILLING CODE 8025-01-P SMALL BUSINESS ADMINISTRATION National Small Business Development Center Advisory Board AGENCY: U.S. Small Business Administration (SBA). ACTION: Notice of open Federal advisory committee meeting. SUMMARY: The SBA is issuing this notice to announce the location, date, time and agenda for the next meeting of the National Small Business Development Center
(SBDC)Advisory Board. DATES: The meeting will be held on Tuesday, April 15, 2008 at 1 p.m. EST. ADDRESSES: This meeting will be held via conference call. SUPPLEMENTARY INFORMATION: Pursuant to section 10(a) of the Federal Advisory Committee Act (5 U.S.C. Appendix 2), SBA announces the meeting of the National SBDC Advisory Board. This Board provides advice and counsel to the SBA Administrator and Associate Administrator for Small Business Development Centers. The purpose of this meeting is to discuss following issues pertaining to the SBDC Advisory Board: —Roles and Responsibilities. —Mission Statement. —Association of Small Business Development Centers (ASBDC) Fall Conference. —Entrepreneurial Development's Annual Report. FOR FUTHER INFORMATION CONTACT: The meeting is open to the public however advance notice of attendance is requested. Anyone wishing to attend and/or make a presentation to the Board must contact Alanna Falcone by Friday, April 11, 2008, by fax or e-mail in order to be placed on the agenda. Alanna Falcone, Program Analyst, 409 Third Street, SW., Washington, DC 20416, Phone, 202-619-1612, Fax 202-481-0134, e-mail, *alanna.falcone@sba.gov* . Additionally, if you need accommodations because of a disability or require additional information, please contact Alanna Falcone at the information above. Cherylyn H. Lebon, Committee Management Officer. [FR Doc. E8-6886 Filed 4-2-08; 8:45 am] BILLING CODE 8025-01-P SOCIAL SECURITY ADMINISTRATION [Docket No. SSA-2008-0018] Retirement Research Consortium Request for Applications
(RFA)Program Announcement No. SSA-ORES-08-01 AGENCY: Social Security Administration (SSA). ACTION: Request for Applications for a Cooperative Agreement to Re-Compete a Retirement Research Consortium (RRC). SUMMARY: The growing share of older Americans in the population has profound long term effects on Social Security. Social Security's Board of Trustees projects that the program will be in poor fiscal shape over the long term at currently legislated payroll tax and benefit levels as a result of demographic changes. Through education and research efforts, the Social Security Administration
(SSA)is committed to addressing these difficulties and ensuring responsive programs and sustainable solvency. SSA's research efforts will support informed public discussion and creative thinking that relates the principles of the program to economic and demographic realities and changing needs and preferences of American households. As authorized under section 1110 of the Social Security Act, SSA announces the solicitation of applications for a cooperative agreement to re-compete a Retirement Research Consortium to help inform the public and policymakers about Social Security issues. In the first year, the Consortium will be composed of one or more research centers. The centers will have a combined annual budget of approximately $7.5 million. SSA expects to fund the centers for a period of 5 years, contingent on an annual review process and continued availability of funds. DATES: The closing date for submitting applications under this announcement is June 9, 2008. Letters of Intent are due by May 9, 2008. ADDRESSES: SSA requires that applicants submit an electronic application through *www.grants.gov* for Funding Opportunity Number SSA-ORES-08-1. The *www.grants.gov,* “Get Registered” Internet page is available to help explain the registration and application submission process. In addition, new Federal grant applicants may find the Grants.gov “Registration Brochure” on the above noted Internet page to be helpful. If you experience problems with the steps related to registering to do business with the Federal Government or application submission, your first point of contact is the Grants.gov support staff at *support@grants.gov,* 1-800-518-4726. If your difficulties are not resolved, you may also contact the SSA Grants Management Team for assistance: Gary Stammer, 410-965-9501; Audrey Adams, 410-965-9469; or Mary Biddle, 410-965-9503. If extenuating circumstances prevent you from submitting an application through *www.grants.gov,* please contact the SSA Grants Management Team for possible prior approval to download, complete and submit an application by mail. Should SSA grant such approval, the downloadable application package will be available at *www.ssa.gov/oag.* Please fax inquiries regarding the application process to the Grants Management Team at 410-966-9310 or mail to: Social Security Administration, Office of Acquisition and Grants, Grants Management Team, Attention: SSA-ORES-08-1, 1st Floor—Rear Entrance, 7111 Security Blvd., Baltimore, MD 21244. To ensure receipt of the proper application package, please include program announcement number SSA-ORES-08-1 and the date of this announcement. FOR FURTHER INFORMATION CONTACT: For nonprogrammatic information regarding the announcement or application package, contact: SSA, Office of Acquisition and Grants, Grants Management Team, 7111 Security Blvd., 1st Floor—Rear Entrance, Baltimore, MD 21244. Contact persons are: Gary Stammer, Grants Management Officer, telephone
(410)965-9501, (e-mail: *Gary.Stammer@ssa.gov* ); or Mary Biddle, Grants Management Officer, telephone
(410)965-9503, e-mail: *Mary.Biddle@ssa.gov.* The fax number is
(410)966-9310. For information on the program content of the announcement/application, contact: Sharmila Choudhury, SSA, Office of Retirement and Disability Policy, 500 E St., SW., Room 913, Washington, DC 20254. The fax number is
(202)358-6187. The telephone number is
(202)358-6261 (e-mail: *sharmila.choudhury@ssa.gov* ). SUPPLEMENTARY INFORMATION: Table of Contents Part I. Funding Opportunity Description A. Purpose B. The Role of the Center(s) a. Priority Research Areas
(PRA)1. Social Security and Retirement 2. Macroeconomic Analyses of Social Security 3. Wealth and Retirement Income 4. Program Interactions 5. International Research 6. Demographic Research b. Tasks 1. Research, Evaluation, and Data Development 2. Dissemination 3. Training and Education 4. Reporting C. Responsibilities 1. Center Responsibilities 2. SSA Responsibilities Part II. Award Information A. Type of Award B. Availability and Duration of Funding C. Letter of Intent Part III. Eligibility Information A. Eligible Applicants B. Cost Sharing or Matching C. Other Part IV. Application and Submission Information A. Overview B. Availability of Application Forms C. Content and Organization of Technical Application D. Components of a Complete Application E. Guidelines for Application Submission F. Submission Date and Times G. Funding Restrictions H. Other Submission Requirements Part V. Application Review Information A. Review Process and Funding B. Selection Process and Evaluation Criteria Part VI. Award Administration Information A. Notification B. Award Notices C. Administration and National Policy Requirements Part VII. Agency Contacts Part VIII. Other Part I. Funding Opportunity Description A. Purpose As authorized under section 1110 of the Social Security Act, SSA announces the solicitation of applications for a cooperative agreement to re-compete a Retirement Research Consortium (RRC). SSA seeks applications in support of the RRC that will continue to serve as a national resource fostering high quality research, communication, and education on matters related to retirement policy. The Consortium may consist of one or more research centers. The Consortium's program purpose is to benefit the public through the following:
(1)Research, evaluation, and data development. SSA expects the RRC to plan, initiate, and maintain a multi-disciplinary research program of high quality that will broadly cover retirement and Social Security program issues. A portion of the research effort can focus on the development of research data sources and providing opportunities to use non-publicly available data that can be accessed at restricted-use data sites, subject to the rules and requirements of those sites.
(2)Dissemination. The RRC will disseminate policy research findings using a variety of media to inform the academic community, policymakers, and the public.
(3)Training and education. The RRC will train and provide funding support for graduate students and postgraduates to conduct research on retirement policy related matters. B. The Role of the Center(s) a. Priority Research Areas
(PRAs)The successful applicant shall develop and conduct a research and evaluation program that also appropriately balances dissemination and training activities directed toward understanding retirement policy. SSA has identified six priority research areas within the realm of retirement income policy. Reviewers will score favorably applications that feature high quality research projects that address the priority areas. The priority research areas are: 1. Social Security and Retirement: Here we seek to understand how Social Security's programs influence the nature and timing of retirement and the claiming of benefits, and the impact of changes in Social Security program rules on Trust Fund solvency. Examples of research topics for this area include new insights on claiming behavior, demand and supply of older workers, health and functional capacity of older workers with an emphasis on whether older workers can work longer given longer life expectancies, early retirement and the disability program, retirement decisions of married couples, effects of voluntary individual accounts, and implications of changes in the Social Security retirement ages and other parameters of the Social Security program (e.g., tax rate, benefit amount, benefit computation.) 2. Macroeconomic Analyses of Social Security: This includes the macroeconomic and financial effects of Social Security and changes in policy on national saving, investment, and economic growth. Macroeconomic analysis also includes, but is not limited to, the intertemporal effects on capital formation, retirement savings, and the unified budget. Examples of research topics include the study of demographic change on saving, effects of national tax policy on Social Security Trust funds, and the impact on financial markets of Social Security reform. 3. Wealth and Retirement Income: This area considers the role of Social Security in retirement income and wealth accumulation. This area also includes analyses of other sources of retirement income and private savings such as employer-provided pensions, individual assets, earnings from continued employment, etc. Examples of research topics include the role of financial literacy in wealth accumulation/decumulation, the optimal design of retirement investment vehicles, effects of 401(k) and 403(b)plans on retirement wealth, measuring retiree well-being, and the distribution of retirement income sources among subgroups of interest. 4. Program Interactions: This covers interactions between current Old Age and Survivors' Insurance
(OASI)and other public or private programs, like Disability Insurance (DI), Supplemental Security Income (SSI), and Medicare, as well as private pension plans and personal saving. Examples of research topics include interactions between Veterans' Disability Insurance, SSI and Social Security, reforms to promote work among the disabled, understanding retirees' take up of Medicare Part D, and in general how changes in the Social Security program (e.g., retirement ages, tax rates, benefit amounts, benefit computation) might influence applications to the DI or SSI programs. 5. International Research: The aim here is to learn from other countries' social insurance experiences. This includes cross-country comparisons of social, demographic, and institutional characteristics as well as studies of specific countries as they institute reform. Examples of research topics include cross-national comparisons of retirement policy reform, health insurance and retirement behavior, and pension reform in various countries. 6. Demographic Research: This area includes changes in mortality, fertility, immigration, health, and marital status, and their implications for retirement policy. Also included in this area are differences in the effects of Social Security policy alternatives among workers and beneficiaries by age, race/ethnicity, sex, and occupation. Examples of research topics include trends in fertility and mortality, labor market behavior of immigrants, marital histories and retirement income security, and health limitations and retirement behavior. SSA realizes competent analysis of all priority research areas may be beyond the capacity of any one center and thus each center may wish to focus their individual resources and expertise on a subset of the areas listed above. Similarly, a center may choose to concentrate on a few aspects of the priority research areas more strongly than others. SSA expects each center to describe its quality assurance process. The goal of the Consortium as a whole is to produce high-quality research covering the range of objectives discussed above, across the separate priority areas. b. Tasks Each center will perform the following tasks: 1. Research, evaluation, and data development. Each center will be expected to plan, initiate, and maintain a research program that meets the highest standards of rigor and objectivity. Joint research between Consortium and SSA researchers is encouraged, as is collaboration with other organizations interested in retirement income policy. Federal employees can not receive any funding support for collaborations. Planning and execution of the research program shall always consider the policy implications of research findings. However, SSA also considers it appropriate, for example, to engage in activities to make advances in research techniques, where these are related to primary objectives of the Consortium. SSA recognizes the value of high-quality comprehensive micro-data for conducting policy research. The RRC should work to facilitate the development of micro-data sources as well as provide researchers with opportunities to use non-publicly available data for research purposes under secure conditions. Such efforts must adhere to clear privacy protection requirements. For example, RRC researchers may be allowed to access SSA administrative data, including administrative data files that have been linked to surveys sponsored by SSA or other Federal agencies, at SSA sites by following the requirements of SSA and those other Federal agencies. They may be subject to background checks and fingerprinting in accordance with SSA personnel suitability requirements. SSA will distribute the necessary forms and consents for completion to awardees interested in accessing administrative data at SSA sites. RRC researchers can also access restricted data at other federal agency restricted data sites, such as those of the Census Bureau and the National Center for Health Statistics, subject to the rules and restrictions of those sites. Restricted data from the Health and Retirement Study can be obtained after meeting their requirements for approval. Examples of data improvement efforts include improving the quality of existing data sources and their documentation; aiding researchers to use administrative data extracts at SSA sites for policy-relevant research projects; developing sophisticated statistical techniques to mask micro-data; and developing new sources of data for retirement policy analysis. In order to ensure the policy relevance, utility, and scope of the centers' research, evaluation, and data development goals, a group of nationally recognized scholars and practitioners (See Part I, Section C, Center Responsibilities) shall periodically review the center's activities. 2. Dissemination. Another important feature of each center's responsibilities is making knowledge and information available to the academic and policy communities and the public. The RRC will facilitate the process of translating basic behavioral and social research theories and findings into practical policy alternatives. The centers will be expected to maintain a dissemination system of quarterly newsletters, research papers, and policy briefs. These products should be accessible to the public via the Internet on a center-maintained Web site. In addition, the centers will be expected to organize conferences, workshops, lectures, seminars, or other ways of sharing current research activities and findings. The Consortium will hold an annual conference on issues related to retirement income policy, with organizational responsibility rotating among the centers. The centers will work with SSA to produce a conference agenda. The conference will be held in Washington, DC. The hosting center will also have the responsibility for preparing and distributing a bound volume of conference papers and related materials to conference participants. SSA encourages applicants to propose creative methods of disseminating data and information. Applications should show sensitivity to alternative dissemination strategies that may be appropriate for different audiences, such as policymakers, practitioners, the public, advocates, and academics. The research and dissemination will be nonpartisan and of value to all levels of policymaking. SSA reserves the right to review all publications created using Consortium funding. 3. Training and education. The RRC is expected to both train new scholars and to educate academics and practitioners on new techniques and research findings on issues of retirement policy. SSA expects each center to develop and expand a diverse corps of scholars/researchers who focus their analytical skills on research and policy issues central to the Consortium's mission. SSA expects the centers to financially support the training and research of young scholars or scholars new to the field of retirement research. The RRC should allocate funding in two ways: Dissertation fellowships to support graduate students and small research grants to support postdoctoral researchers and junior scholars. Applications solicited widely and nationally are encouraged. Graduate students working with RRC researchers on funded projects as research assistants will be included in the research budget, not in the training budget. The centers will conduct educational seminars for government analysts and policymakers on the Consortium's research findings and methodological advancements. To assure the quality of its research, dissemination, and training, each center should establish and maintain a formal tie with a university, including links with appropriate departments within that university. Each center must have a major presence at a single site; however, alternative arrangements among entities and with individual scholars are encouraged and may be proposed. 4. Reporting. Every three months during the award period, the grantee will produce a quarterly report of progress. The grantee's quarterly progress reports should provide a concise summary of the progress being made toward completion of activities in the annual work plan. The grantee should pay particular attention in the reports to achieving any milestones set forth in the work plan, delays in achieving milestones and the impact of delays on the final product. Details regarding the format of quarterly progress reports will be provided in the RRC Terms and Conditions at the time of award. C. Responsibilities 1. Center Responsibilities: The centers have the primary and lead responsibility to define objectives and approaches; plan research, conduct studies, and analyze data; and publish results, interpretations, and conclusions of their work. Occasionally, SSA will request Quick Turnaround projects from the RRC. These projects include commenting on SSA research plans, providing critical commentary on research products, composing policy briefs, performing statistical policy analyses, and other activities designed to inform SSA's research, evaluation, and policy analysis function. Funding for these as well as other related activities should be included in the budget narrative at a level of $40,000. The agency can raise the ceiling above $40,000 for quick turnaround projects if both need and funds exist. Jointly with SSA, each center will select approximately six nationally recognized scholars and practitioners who are unaffiliated with any center to provide assistance in formulating the center's research agenda and advice on implementation. Each center shall select three scholars/practitioners, and SSA will select three scholars/practitioners. Efforts will be made in selecting the scholars/practitioners to assure a broad range of academic disciplines and political viewpoints. Funded under this agreement, the scholars/practitioners must meet once a year at the RRC Annual Conference in Washington, DC. On occasion, all centers' scholars/practitioners will meet jointly to evaluate and provide advice on Consortium objectives and progress. Further, the centers may contact the scholars/practitioners throughout the year for suggestions regarding center activities. The SSA Project Officer or representative will participate in all meetings. 2. SSA Responsibilities: SSA will be involved with the Consortium in jointly establishing research priorities and deliverable dates to accomplish the objectives of this announcement. SSA, or its representatives, will provide the following types of support to the Consortium: a. Consultation and technical assistance in planning, operating and evaluating the Consortium's activities. b. Information about SSA programs, policies, and research priorities. c. Assistance in identifying SSA information and technical assistance resources pertinent to the centers' success. d. Review of Consortium activities and collegial feedback to ensure that objectives and award conditions are being met. SSA may suspend or terminate any cooperative agreement in whole or in part at any time before the date of expiration, if the awardee materially fails to comply with the terms and conditions of the cooperative agreement, technical performance requirements are not met, or the project is no longer relevant to the Agency. SSA will promptly notify the awardee in writing of the determination and the reasons for suspension or termination together with the effective date. SSA reserves the right to suspend funding for individual projects in process or in previously approved research areas or tasks after awards have been granted. In general, SSA seeks organizations with demonstrated capacity for providing quality policy research and training, and working with government policymakers. Part II. Award Information A. Type of Award All awards made under this program will be made in the form of a cooperative agreement. A cooperative agreement, as distinct from a grant, anticipates substantial involvement between SSA and the awardee during the performance of the project. A comprehensive annual review process will allow SSA to evaluate, recommend changes, and approve each center's activities. SSA's involvement may include collaboration or participation in the activities of the centers as determined at the time of award. The terms of award are in addition to, not in lieu of, otherwise applicable guidelines and procedures, and will be issued along with notice of award. The grantee must apply to continue the cooperative agreement in order to receive funds in subsequent years of the 5-year agreement. The grantee will produce a continuation application, subject to review and approval by SSA. The continuation application should clearly describe a set of research, training, and dissemination activities that best address the priorities of SSA. SSA will engage in a dialogue with grantees throughout the award period regarding research topics. Based on that dialogue, SSA will provide the grantee with guidance (in writing) on the agency's research priorities for the subsequent continuation cycle. B. Availability and Duration of Funding 1. Up to $7.5 million will be available to fund the initial 12-month budget period of a proposed five-year cooperative agreement(s) pursuant to the announcement. 2. Applicants must include detailed budget estimates for the first year. 3. The amount of funds available for the cooperative agreement in future years has not been established. Legislative support for continued funding of the Consortium cannot be guaranteed and funding is subject to future appropriations and budgetary approval. SSA expects, however, that the Consortium will be supported during future fiscal years at an annual level of up to $7.5 million. 4. Nothing in this announcement states that the annual funds will be divided proportionately among the centers. 5. Additional funds may become available from SSA or other Federal agencies in support of Consortium projects. 6. Initial awards, pursuant to this announcement, will be made on or about September 15, 2008. Although up to three awards are anticipated, nothing in this announcement restricts SSA's ability to make more or fewer awards, to make an award of lesser amount, or to add additional centers to the RRC in the future. Further, SSA is not required to fund all proposed Consortium activities in any year. SSA will review all proposed activities annually and award up to $2.75 million per center per year. C. Letter of Intent Prospective applicants are asked to submit by May 9, 2008, a letter of intent that includes
(1)this program announcement number and title;
(2)a brief description of the proposed center;
(3)the name, postal and e-mail addresses, and the telephone and fax numbers of the Center Director; and
(4)the identities of the key personnel and participating institutions. The letter of intent is not required, is not binding, and does not enter into the review process of a subsequent application. The sole purpose of the letter of intent is to allow SSA staff to estimate the potential review workload and avoid conflicts of interest in the review. The letter of intent should be sent to: Sharmila Choudhury, RRC Letter of Intent, Office of Retirement and Disability Policy, Social Security Administration, 500 E St., SW., ITC Room 913, Washington, DC 20254-0001. E-mail: *Sharmila.Choudhury@ssa.gov* . Part III. Eligibility Information A. Eligible Applicants SSA seeks applications from domestic Institutions of Higher Education, Hospitals, Non-Profit organizations, Commercial organizations, Federal and State Governments, and Native American tribal organizations. Each center need not be limited by geographical boundaries. A research team may consist of investigators or institutions that are geographically distant, to the extent that the research design requires and accommodates such arrangements. Nothing in this announcement precludes non-academic entities from being affiliated with an applicant. No cooperative agreement funds may be paid as profit to any cooperative agreement recipient. For-profit organizations may apply with the understanding that no funds may be paid as profit. Profit is considered as any amount in excess of the allowable costs of the award recipient. In accordance with an amendment to the Lobbying Disclosure Act, popularly known as the Simpson-Craig Amendment, those entities organized under section 501(c)4 of the Internal Revenue Code that engage in lobbying are prohibited from receiving Federal cooperative agreement awards. B. Cost Sharing SSA will not provide a center's entire funding. Recipients of an SSA cooperative agreement are required to contribute a non-Federal match of at least 5 percent toward the total approved cost of each center. The total approved cost of the project is the sum of the Federal share (maximum of 95 percent) and the non-Federal share (minimum of 5 percent). The non-Federal share may be cash or in-kind (property or services) contributions. C. Other Each center director must have a demonstrated capability to organize, administer, and direct the center. The director will be responsible for the organization and operation of the center and for communication with SSA on scientific and operational matters. The director must also have a minimum time commitment of 25 percent to Consortium activities. Racial/ethnic minority individuals, women, and persons with disabilities are encouraged to apply as directors. A list of previous grants and cooperative agreements held by the director shall be submitted including the names and contact information of each grant's and cooperative agreement's administrator. In addition to the director, skilled personnel and institutional resources capable of providing a strong research and evaluation base in the specified priority areas must be available. The institution must show a strong commitment to the Consortium's support. Such commitment may be provided as dedicated space, salary support for investigators or key personnel, dedicated equipment or other financial support for the proposed center. Part IV. Application and Submission Information A. Overview This part contains information on the preparation of an application for submission under this announcement and the forms necessary for submission. Potential applicants should read this part carefully in conjunction with the information provided in Part I. SSA anticipates that the applicant will have access to additional sources of funding for some projects and arrangements with other organizations and institutions. The applicant (including the center Director and other key personnel) shall make all current and anticipated related funding arrangements (including contact information for grant/contract/cooperative agreement administrators) explicit in an attachment to the application (Part IV, Section D). As part of the annual review process, this information will be updated and reviewed to limit duplicative funding for center projects. B. Availability of Application Forms The application kit is available at *www.grants.gov* . For information regarding the application package, contact: SSA, Office of Acquisition and Grants, Grants Management Team, 7111 Security Blvd., 1st Floor Rear Entrance, Baltimore, MD 21244. Contact persons are: Gary Stammer, Grants Management Officer, telephone
(410)965-9501, (e-mail: *Gary.Stammer@ssa.gov* ); or Mary Biddle, Grants Management Officer, telephone
(410)965-9503, e-mail: *Mary.Biddle@ssa.gov* . The fax number is
(410)966-9310. To request an application kit for those without Internet access or for those experiencing extenuating circumstances preventing the submission of an electronic application, contact the Grants Management Office as mentioned above. When requesting an application kit, the applicant should refer to the program announcement number SSA-ORES-08-1 and the date of this announcement to ensure receipt of the proper application kit. C. Content and Organization of Technical Application The application must begin with the required application forms and a three-page (double-spaced) overview and summary of the application. Staff resumes should be included in a separate appendix. *Budget Narrative:* In addition to providing an explanation of the budget categories specified in the required forms, the budget narrative must also link the research, training, dissemination, and administration to the center's funding level. The special instructions attachment of the application kit provides information on the distribution and presentation of budget data. Though SSA believes that all three of the stated goals and objectives are important, it is expected that the substantial majority of funds will support Research, Evaluation, and Data Development. Funding should also be allocated to address occasional SSA requested activities (described in Part I, Section C-1). The availability, potential availability or expectation of other funds (from the host institution, universities, foundations, other Federal agencies, etc.) and the uses to which they would be put, should be documented in this section. When additional funding is contemplated, applicants shall note whether the funding is being donated by the host institution, is in-hand from another funding source, or will be applied for from another funding source. Formal commitments for the 5 percent, non-federal, minimum budget share should be highlighted in this section. Seeking additional support from other sources is encouraged. However, funds pertaining to this announcement must not duplicate those received from other funding sources. *Project Narrative:* The core of the application must contain five sections, presented in the following order:
(1)A brief (not more than 10 pages) background analysis of the key retirement policy issues and trends with a focus on the primary research themes of the proposed center. The analysis should discuss concisely, but comprehensively, important priority research issues and demonstrate the applicant's grasp of the policy and research significance of recent and future social, economic, political, and demographic issues.
(2)A research and evaluation prospectus for a five-year research agenda, outlining the major research themes to be investigated over the next five years. In particular, the prospectus will describe the activities planned for the priority research areas and other additional research topics proposed by the applicant. The prospectus should discuss the kind of research activities that are needed to both address current Social Security issues and anticipate future policy debates. The prospectus should follow from the background analysis section. It may, of course, also discuss research areas and issues that were not mentioned in the analysis if the author(s) of the application feel there have been gaps in past research, or that new factors have begun to affect or soon will begin to affect national retirement policy. If a center intends to enhance data for retirement research purposes, they should include a discussion of the technical expertise of center staff and proposed mechanisms to facilitate the sharing of data. The prospectus shall include detailed descriptions of individual research projects that will be expected in the center's first year of operation. The special instructions attachment of the application kit provides guidelines for project proposals. The prospectus should be specific about long-term research themes and projects. The lines of research described in the prospectus should be concrete enough that project descriptions in subsequent research plan amendments can be viewed as articulating a research theme discussed in the prospectus. An application that contains an ad hoc categorization of an unstructured set of research projects, rather than a set of projects that strike a coherent theme, will be judged unfavorably. Note: Once a successful RRC applicant has been selected, SSA will review the RRC research agenda and determine research priorities. This may include the addition, modification, or removal of proposed research projects. After review, each center will submit to SSA a revised research plan and budget. The research plan will be periodically reviewed and revised as necessary. The application should discuss how the centers select research projects to propose, including involvement of the outside scholars/practitioners, SSA, and other advisors and participants in the consortium.
(3)A prospectus for dissemination, including ways to reach a broad audience of researchers, policymakers, and the public. Dissemination plans should detail proposed publications and conferences.
(4)A prospectus for training and education, including proposed training and educational strategies to meet the goals described in Part I, Section B-b, Task 3.
(5)A staffing and organization proposal for the center, including an analysis of the types of background needed among staff members, the center's organizational structure, and linkages with the host institution and other organizations. In this section, the applicant should specify how it will assure an effective approach to research, and where appropriate, identify the necessary links to university departments, other organizations and scholars engaged in research and government policy making. The applicant should identify the center Director and key senior research staff. Full resumes of proposed staff members must be included as a separate appendix to the application. The time commitment to the center and other commitments for each proposed staff member shall be indicated. The application should specify how administrative arrangements would be made to minimize start-up and transition delays. Note that once the cooperative agreement has been awarded, changes in key staff will require prior approval from SSA. The kinds of administrative and tenure arrangements, if any, the center proposes to make should also be discussed in this section. In addition, the authors of the application and the role that they will play in the proposed center must be specified. This section shall discuss the financial arrangements for supporting research assistants, dissertation fellowships, affiliates, resident scholars, etc. The discussion should include the expected number and type of scholars to be supported and the level of support anticipated. If the applicant envisions an arrangement of several universities or entities, this section should describe the specifics of the relationships, including leadership, management, and administration. The staffing proposal should pay particular attention to discussing how a focal point for research, training, and scholarship will be maintained given the arrangement proposed. The application also should discuss the role, selection procedure, and expected contribution of the outside scholars/practitioners (See Part I, Section C-1). The application should provide an organizational experience summary of past work at the institution proposed as the location (or the host) of the center that relates directly or indirectly to the research priorities of this request. This discussion should include more than a listing of the individual projects completed by the individuals who are included in the application. The discussion should provide a sense of institutional commitment to policy research on issues involving retirement policy. The application must list in an appendix appropriate recent or current research projects, with a brief research summary, contact person, references, and address and telephone numbers of references. This section should also discuss the experience of the research staff in working with the government agencies and their demonstrated capacity to provide policy relevant support to these agencies. D. Components of a Complete Application A complete application package consists of one electronic application. It should include the following items: 1. Project Abstract/Summary (not to exceed three pages); 2. Table of Contents; 3. Part I (Face Sheet)—Application for Federal Assistance (Standard Form 424); 4. Part II—Budget Information— a. Form SF-424A—Sections A through F b. Form SSA SF-424 Section G—Personnel 5. Budget Narrative for Section B—Budget Categories; 6. Copy of the applicant's approved indirect cost rate agreement, if appropriate; 7. Part III—Project Narrative. The project narrative should be organized in five sections:
(1)Background Analysis,
(2)Research, Evaluation, and Data Development Prospectus,
(3)Dissemination Prospectus,
(4)Training and Education Prospectus,
(5)Staffing Proposal Including Staff Utilization, Staff Background, and Organizational Experience. 8. Assurances—Form SF-424B; 9. Disclosure of Lobbying Activities, Form SF-LLL, if applicable. 10. Any appendices/attachments. E. Guidelines for Application Submission These guidelines should be followed in submitting applications: —All applications requesting SSA funds for cooperative agreement projects under this announcement must be submitted on the standard forms provided in the application kit. —The application shall be executed by an individual authorized to act for the applicant organization and to assume for the applicant organization the obligations imposed by the terms and conditions of the cooperative agreement award. —Length: Applications should be as brief and concise as possible, but assure successful communication of the applicant's proposal to the reviewers. The Project Narrative portion of the application may not exceed 150 double spaced pages (excluding the resume and outside funding appendices), equivalent to being typewritten on one side using standard (8 1/2 ″ x 11″) size paper and 12 point font. Attachments that support the project narrative count within the 150 page limit. Attachments not applicable to the project narrative do not count toward this page limit. —Attachments/Appendices, when included should be used only to provide supporting documentation. —On all applications developed by more than one organization, the application must identify only one institution as the lead organization and the official applicant. The other(s) can be included as sub grantees or subcontractors. F. Submission Dates and Times Applicants must submit applications through *www.grants.gov* by the closing date of June 9, 2008. However, when the SSA Grants Management Team approves the submission of a mailed application due to extenuating circumstances, applications may be mailed or hand-delivered to: Social Security Administration, Office of Acquisition and Grants, Grants Management Team, Attention: SSA-ORES-08-1, 1st Floor-Rear Entrance, 7111 Security Blvd., Baltimore, MD 21244. Hand-delivered applications are accepted between the hours of 8 a.m. and 5 p.m., Monday through Friday. An application will be considered as meeting the deadline if it is either: • Received from Grants.gov on or before the deadline date; or • Received at the above address on or before the deadline, when a mailed application has been authorized by the Grants Management Team; or • Postmarked by June 9, 2008 when a mailed application has been authorized by the Grants Management Team. Packages approved for mailing must be sent through the U.S. Postal Service or by commercial carrier on or before the deadline date and received in time to be considered during the competitive review and evaluation process. Applicants are cautioned to request a legibly dated U.S. Postal Service postmark or to obtain a legibly dated receipt from a commercial carrier as evidence of timely mailing. Private metered postmarks are not acceptable as proof of timely mailing. Applications that do not meet the above criteria will be considered late applications. SSA will not waive or extend the deadline for any applicant unless the deadline is waived or extended for all applicants. SSA will notify each late applicant that its application will not be considered. Letters of intent, which are optional, are requested by May 9, 2008. See Part II, Section C for details. G. Funding Restrictions There will be limitations concerning allowable construction expenses. Submitted budgets may include minor construction expenses, such as alterations and renovations. This could include work required to change the interior arrangements or other physical characteristics of an existing facility or installed equipment so that it may be more effectively used for the project. Alteration and renovation may include work referred to as improvements, conversion, rehabilitation, remodeling, or modernization, but is distinguished from construction and large scale permanent improvements. Awards will not allow reimbursement of pre-award costs. H. Other Submission Requirements SSA requires applicants to submit an electronic application through *www.grants.gov* for Funding Opportunity Number SSA-ORES-08-1. If you experience problems with application submission, your first point of contact is the Grants.gov support staff at *support@grants.gov* , 1-800-518-4726. If your difficulties are not resolved, you may also contact the SSA Grants Management Team for assistance: Gary Stammer, 410-965-9501; Audrey Adams, 410-965-9469; or Mary Biddle, 410-965-9503. If extenuating circumstances prevent you from submitting an application through *www.grants.gov* , please contact the SSA Grants Management Team for possible prior written approval to download, complete and submit an application by mail. When such approval is granted, the downloadable application package will be available at *www.ssa.gov/oag* . The address for pre-approved mailed applications is: Social Security Administration, Office of Acquisition and Grants, Grants Management Team, Attention: SSA-ORES-08-1, 1st Floor-Rear Entrance, 7111 Security Blvd., Baltimore, MD 21244. To ensure receipt of the proper application package, please include program announcement number SSA-ORES-08-1 and the date of this announcement. Part V. Application Review Information A. Review Process and Funding In addition to any other reviews, a review panel consisting of at least three qualified persons will be formed. Each panelist will objectively review and score the cooperative agreement applications using the evaluation criteria listed below. The panel will recommend centers based on
(1)the application scores;
(2)the feasibility and adequacy of the project plan and methodology; and
(3)how the centers would jointly meet the objectives of the Consortium. The Agency will consider the panel's recommendations when awarding the cooperative agreements. Although the results from the review panel are the primary factor used in making funding decisions, they are not the sole basis for making awards. The Agency will consider other factors as well (such as duplication of internal and external research effort) when making funding decisions. All applicants must use the guidelines provided in the SSA application kit at *www.grants.gov* by June 9, 2008 for preparing applications requesting funding under this cooperative agreement announcement. These guidelines describe the minimum amount of required project information. However, when completing the Project Narrative, please follow the guidelines under Part IV, Section C, above. All awardees must adhere to SSA's Privacy and Confidentiality Regulations (20 CFR part 401) as well as provide specific safeguards surrounding client information sharing, paper/computer records/data, and other issues potentially arising from administrative data. Additional details regarding safeguarding of Personally Identifiable Information are available in the SSA Grants Administration Manual, Section 3-10-60, available at *http://www.ssa.gov/oag/grants/ssagrant_info.htm* . B. Selection Process and Evaluation Criteria The evaluation criteria correspond to the outline for the development of the Budget and Project Narrative Statement of the application described in Part IV, Section C, above. The application should be prepared in the format indicated by the outline described in the components of a complete application (Part IV, Section D). Selection of the successful applicants will be based on the technical and financial criteria laid out in this announcement. Reviewers will determine the strengths and weaknesses of each application in terms of the evaluation criteria listed below. The point value following each criterion heading indicates the maximum numerical relative weight that each section will be given in the review process. An unacceptable rating on any individual criterion may render the application unacceptable. Consequently, applicants should take care that all criteria are fully addressed in the applications. Applications will be reviewed as follows:
(1)Quality of the background analysis. (10 points) Applications will be judged on whether they provide a thoughtful and coherent discussion of political, economic, social, and demographic issues influencing retirement and solvency. Reviewers will judge applicants' abilities to discuss the past, present, and future role of government programs and polices which affect these issues and how these are tied to their proposed research agenda.
(2)Quality of the research and evaluation prospectus. (40 points) Reviewers will judge this section on whether the research agenda is scientifically sound and policy relevant. They also will consider whether the applicant is likely to produce significant contributions to their proposed research areas and how closely the proposed projects fit the objectives for which the applications were solicited. The application will be judged on the breadth and depth of the applicant's commitment to research and evaluation of the priority research areas described in Part I, Section B, part a. The discussion and research proposed must address at least three priority research areas, preferably with a multi-disciplinary approach. Applicants will generally receive higher scores for addressing more than three priority research areas. However, a strong proposal focusing on three areas will outscore one that is broad and weakly defined. Applicants with additional insightful research proposals will also score higher. Besides detailed plans for research projects in the first year, the research agenda should discuss possible projects over the longer five-year horizon. Reviewers will rate applications on the contents of the plans to conduct policy relevant research.
(3)Dissemination. (15 points) Reviewers will evaluate strategies for dissemination of research and other related information to a broad and disparate set of academic, research, and policy communities as well as to the public. Reviewers will also evaluate whether the appropriate dissemination method is being proposed for targeted audiences of academics and researchers, policymakers, and the public. Proposed strategies that increase dissemination across centers and other organizations conducting retirement research will also receive higher ratings.
(4)Training. (10 points) The evaluation of the training and education prospectus will include an assessment of plans to enhance the training of graduate students and young scholars through direct financial support as well as exposure to policy research. An approach that solicits applications widely and from across the nation is encouraged. In addition, reviewers will evaluate proposed strategies for educating and training policymakers and practitioners on issues of retirement.
(5)Quality of the staffing proposal and proposed administration. (15 points) Reviewers will judge the applicant's center Director and staff on research experience, demonstrated research skills, administrative skills, public administration experience, and relevant policy-making skills. An additional criterion will be the center's demonstrated potential to act as a conduit between basic and applied behavioral and social science research and policy analysis/evaluation. Both the evidence of past involvement in related research and the specific plans for seeking applied outcomes described in the application shall be considered part of that potential. Reviewers may consider references from grant/cooperative agreement administrators on previous grants and cooperative agreements held by the proposed center Director or other key personnel. Director and staff time commitments to the center also will be a factor in evaluation. Reviewers will evaluate the affiliations of proposed key personnel to ensure the required multi-disciplinary nature of the consortium is being fulfilled. Applicants will be judged on the nature and extent of the organizational support for research, mentoring scholars, dissemination, and in areas related to the center's central priorities and this request. Reviewers will evaluate the commitment of the host institution (and the proposed institutional unit that will contain the center) to assess its ability to support all three of the center's major activities:
(1)Research, evaluation, and data development;
(2)dissemination;
(3)education and training. Reviewers also will evaluate the applicant's demonstrated capacity to work with a range of government agencies.
(6)Appropriateness of the budget for carrying out the planned staffing and activities. (10 points) Reviewers will consider whether
(1)the budget assures an efficient and effective allocation of funds to achieve the objectives of this solicitation, and
(2)the applicant has additional funding from other sources, in particular, the host institution. Applications that show funding from other sources that supplement funds from this cooperative agreement will be given higher marks than those without financial support. Awardees are required to contribute a minimum of 5 percent cost share of total project costs. Panel Recommendations. Once each application is scored and ranked, the panel will then review the top applicants and recommend centers that together best address the range of responsibilities described in Part I. Part VI. Award Administration Information A. Notification Grants.gov will issue application receipt acknowledgements. B. Award Notices Applicants who have been selected will receive an official electronic notice of award signed by an SSA Grants Management Officer around September 15, 2008. Those who were not selected will be notified by official letter. C. Administration and National Policy Requirements Executive Order 12372 and 12416—Intergovernmental Review of Federal Programs This program is not covered by the requirements of Executive Order (E.O.) 12372, as amended by E.O. 12416, relating to the Federal policy for consulting with State and local elected officials on proposed Federal financial assistance. VII. Agency Contacts For matters related to the application and submission process for this cooperative agreement, contact Grants Management Officer, Gary Stammer at
(410)965-9501 or *gary.stammer@ssa.gov* , or Mary Biddle, Grants Management Officer, at
(410)965-9503 or *Mary.Biddle@ssa.gov* . The mailing address is SSA, Office of Acquisition and Grants, Grants Management Team, 7111 Security Blvd., 1st Floor, Rear Entrance, Baltimore, MD 21244. The fax number is
(410)966-9310. For program content information, contact the RRC Project Officer, Sharmila Choudhury at
(202)358-6261 or *sharmila.choudhury@ssa.gov* . The mailing address is SSA, Office of Retirement and Disability Policy, 500 E St., SW., Room 913, Washington, DC 20254. The fax number is
(202)358-6187. VIII. Other This announcement is for the re-competition of the RRC. The cooperative agreement for the RRC currently in place was awarded in 2003 and will expire in September 2008. Along with the official notice of award each year, SSA will issue a set of Terms and Conditions that define closely the responsibilities of the center and SSA towards meeting the goals of the cooperative agreement. An Annual Priority Research Memo will also be issued each year before the start of the continuation cycle to guide the centers in preparing their continuation applications. SSA is committed to accessibility of its products to persons with disabilities. Each center's Web site should meet accessibility standards identified in Section 508 of the Rehabilitation Act. The annual conference also should be accessible to persons with disabilities. Additional information on how SSA sponsors grants and other details may be found on the Grants Home page at *http://www.ssa.gov/oag* . (Catalog of Federal Domestic Assistance: Program No. 96.007, Social Security—Research and Demonstration) Dated: March 21, 2008. Michael J. Astrue, Commissioner of Social Security. [FR Doc. E8-6948 Filed 4-2-08; 8:45 am] BILLING CODE 4191-02-P DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Administration Reports, Forms and Recordkeeping Requirements; Agency Information Collection Activity Under OMB Review AGENCY: National Highway Traffic Safety Administration, DOT. ACTION: Notice. SUMMARY: In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), this notice announces that the Information Collection Request
(ICR)abstracted below has been forwarded to the Office of Management and Budget
(OMB)for review and comment. The ICR describes the nature of the information collections and their expected burden. The **Federal Register** Notice with a 60-day comment period was published on January 9, 2008, Vol. 73, No. 6, Pages 1666-1667. DATES: Comments must be submitted on or before May 5, 2008 FOR FURTHER INFORMATION CONTACT: Susan Ryan at the National Highway Traffic Safety Administration, Office of Regional Operations and Program Delivery (NTI-200), 202-366-2715, 1200 New Jersey Avenue, SE., Washington, DC 20590. SUPPLEMENTARY INFORMATION: National Highway Traffic Safety Administration *Title:* Highway Safety Program Cost Summary and 23 CFR Part 1345, Occupant Protection Incentive Grant, Section 405. *OMB Numbers:* 2127-0003; 2127-0600. *Type of Request:* Extension to a previously approved collection of information. *Abstract:* The Highway Safety Plan identifies state's traffic safety problems and describes the program and projects to address those problems. In order to account for funds expended, States are required to submit a HS-217 Highway Safety Program Cost Summary. The Program Cost Summary is completed to reflect the state's proposed allocations of funds (including carry-forward funds) by program area, based on the projects and activities identified in the Highway Safety Plan. An occupant protection incentive grant (Section 405) is available to states that can demonstrate compliance with at least four of six criteria. Demonstration of compliance requires submission of copies of relevant seat belt and child passenger protection statutes, plan and/or reports on statewide seatbelt enforcement and child seat education programs and possible some traffic court records. *Affected Public:* For the Highway Cost Summary the public is the 50 states, District of Columbia, Puerto Rico, U.S. Territories, and Tribal Government. For the Section 405 grant program the public is the 50 states, the District of Columbia, Puerto Rico, American Samoa, Guam, Northern Marianas and the Virgin Islands. Estimated Total Annual Burden: 570 and 780 respectively. *Address:* Send comments, within 30 days, to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725-17th Street, NW., Washington, DC 20503, Attention: NHTSA Desk Officer. *Comments are invited on:* Whether the proposed collection of information is necessary for the proper performance of the functions of the Department, including whether the information will have practical utility; the accuracy of the Departments estimate of the burden of the proposed information collection; ways to enhance the quality, utility and clarity of the information to be collected; and ways to minimize the burden of the collection of information on respondents, including the use of automated collection techniques or other forms of information technology. A comment to OMB is most effective if OMB receives it within 30 days of publication. John F. Oates, Acting Associate Administrator for Regional Operations and Program Delivery. [FR Doc. E8-6856 Filed 4-2-08; 8:45 am] BILLING CODE 4910-59-P DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration [PHMSA-2008-0075 (Notice No. 08-2)] Hazardous Materials: Transport of Lithium Batteries; Notice of Public Meeting AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT. ACTION: Notice of public meeting. SUMMARY: This notice is to advise interested persons that PHMSA will conduct a public meeting to discuss the safe transportation of lithium batteries. DATES: The public meeting will be Friday, April 11, 2008, starting at 9 a.m. ADDRESSES: The meeting will be held at the U.S. DOT headquarters, Rooms 8-9-10—DOT Conference Center, 1200 New Jersey Ave., SE., Washington, DC 20590. The main visitor's entrance is located in the West Building, on New Jersey Avenue and M Street. For information on the facilities or to request special accommodations, please contact Kevin Leary at the telephone number listed under FOR FURTHER INFORMATION CONTACT below. FOR FURTHER INFORMATION CONTACT: Kevin Leary, Office of Hazardous Materials Standards, telephone, 202-366-8553, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, East Building, PHH-10, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001. SUPPLEMENTARY INFORMATION: On February 22, 2007, the Pipeline and Hazardous Materials Safety Administration (PHMSA) hosted a meeting of public and private sector stakeholders who share our interest in the safe transportation of batteries and battery-powered devices. The meeting included representatives of the National Transportation Safety Board (NTSB), the Federal Aviation Administration (FAA), the National Highway Traffic Safety Administration (NHTSA), battery and electronics manufacturers, the Air Transport Association (ATA), the Air Line Pilots Association (ALPA), and emergency responders. On the basis of the meeting we initiated a comprehensive strategy aimed at reducing the transportation risks posed by batteries of all types. PHMSA outlined the strategy in an action plan detailing a range of public and private sector measures designed to enhance safety standards, improve data collection and awareness, and otherwise reduce the risks of transporting batteries and battery-powered devices, with a special focus on aviation safety. PHMSA and the parties to the action plan have met repeatedly over the course of the last year and have made significant progress in meeting the action plan targets. PHMSA believes that a follow-on public meeting would be useful at this time to review progress under the 2007 action plan and discuss necessary next steps. Although substantial effort and progress have been made since the February 2007 meeting, we believe additional steps should be taken to prevent a significant incident. While the safety record associated with the transportation of lithium batteries is very good, we continue to observe incidents in all modes of transport and are especially concerned about the risk of battery-related fires aboard aircraft. PHMSA is aware of more than 90 reports of transport incidents involving batteries and battery-powered devices; several of these have involved fires in an aircraft cabin. In cooperation with NTSB and FAA we are investigating a number of these incidents to determine their root cause and to identify effective measures to reduce risk. Based on the observed incidents and our investigations, we have identified several factors we believe are the primary cause of most of the battery incidents. These factors include: internal short circuits, external short circuits, improper charging or discharging, and non-compliance with current safety standards. On December 17, 2007 and January 7, 2008, the National Transportation Safety Board
(NTSB)issued a total of eight safety recommendations following its investigation of a February 7, 2006 hazardous materials incident at the Philadelphia International Airport. In that incident, United Parcel Service Company flight 1307 landed at the airport after a cargo smoke indication in the cockpit. The captain, first officer, and a flight engineer evacuated the airplane after landing, sustaining minor injuries. The airplane and most of the cargo were destroyed by a fire. NTSB determined that the probable cause of this accident was an in-flight cargo fire from an unknown source. The NTSB issued the following safety recommendations: • Require aircraft operators to implement measures to reduce the risk of primary lithium batteries becoming involved in fires on cargo-only aircraft, such as transporting such batteries in fire resistant containers and/or in restricted quantities at any single location on the aircraft; • Until fire suppression systems are required on cargo-only aircraft, as asked for in Safety Recommendation A-07-99, require that cargo shipments of secondary lithium batteries, including those contained in or packed with equipment, be transported in crew-accessible locations where portable fire suppression systems can be used; • Require aircraft operators that transport hazardous materials to immediately provide consolidated and specific information about hazardous materials on board an aircraft, including proper shipping name, hazard class, quantity, number of packages, and location, to on-scene emergency responders upon notification of an accident or incident; • Require commercial cargo and passenger operators to report to the Pipeline and Hazardous Materials Safety Administration all incidents involving primary and secondary lithium batteries, including those contained in or packed with equipment, that occur either on board or during loading or unloading operations and retain the failed items for evaluation purposes; • Analyze the causes of all thermal failures and fires involving secondary and primary lithium batteries and, based on this analysis, take appropriate action to mitigate any risks determined to be posed by transporting secondary and primary lithium batteries, including those contained in or packed with equipment, on board cargo and passenger aircraft as cargo; checked baggage; or carry-on items; • Eliminate regulatory exemptions for the packaging, marking, and labeling of cargo shipments of small secondary lithium batteries (no more than 8 grams equivalent lithium content) until the analysis of the failures and the implementation of risk-based requirements asked for in Safety Recommendation A-07-108 are completed; • In collaboration with air carriers, manufacturers of lithium batteries and electronic devices, air travel associations, and other appropriate government and private organizations, establish a process to ensure wider, highly visible, and continuous dissemination of guidance and information to the air-traveling public, including flight crews, about the safe carriage of secondary (rechargeable) lithium batteries or electronic devices containing these batteries on board passenger aircraft; and • In collaboration with air carriers, manufacturers of lithium batteries and electronic devices, air travel associations, and other appropriate government and private organizations, establish a process to periodically measure the effectiveness of your efforts to educate the air-traveling public, including flight crews, about the safe carriage of secondary (rechargeable) lithium batteries or electronic devices containing these batteries on board passenger aircraft. During the April 11th meeting we plan to distribute and solicit feedback on a draft action plan identifying additional steps that will help to reduce the risk associated with the transport of lithium batteries, particularly in the air mode. Topics to be covered during the public meeting include:
(1)Recent transportation incidents;
(2)Probable causes of battery incidents;
(3)NTSB recommendations;
(4)PHMSA/FAA activities; and
(5)Action plan with next steps/additional actions. In addition, we plan to discuss the effectiveness of stakeholder partnerships in reducing the safety risks posed by the transportation of lithium batteries, ways to facilitate and foster additional stakeholder partnerships, and strategies for expanding the ongoing DOT public awareness campaign. The public is invited to attend without prior notification. Due to the heightened security measures, participants are encouraged to arrive early to allow time for security checks necessary to obtain access to the building. Issued in Washington, DC on March 28, 2008. Theodore L. Willke, Associate Administrator for Hazardous Materials Safety. [FR Doc. E8-6923 Filed 4-2-08; 8:45 am] BILLING CODE 4910-60-P DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Finance Docket No. 35121] Burlington Shortline Railroad, Inc., d/b/a Burlington Junction Railway—Acquisition and Operation Exemption—BNSF Railway Company Burlington Shortline Railroad, Inc., d/b/a Burlington Junction Railway (BJRY), a Class III rail carrier, has filed a verified notice of exemption under 49 CFR 1150.41 to acquire and operate, pursuant to an agreement with BNSF Railway Company (BNSF), approximately 2.5 miles of BNSF railroad properties consisting of certain trackage, real properties, and railroad operating rights. The railroad properties consist of two tracks, numbered 3905 and 3930, connecting to a switch at BNSF's main rail line at milepost 39 in Montgomery, IL. There are no mileposts on the subject line. The transaction is scheduled to be consummated on April 19, 2008 (more than 30 days after the notice of exemption was filed). BJRY certifies that its projected annual revenues as a result of this transaction will not exceed those that qualify it as a Class III rail carrier and will not exceed $5 million. Pursuant to the Consolidated Appropriations Act, 2008, Public Law 110-161, 193, 121 Stat. 1844 (2007), nothing in this decision authorizes the following activities at any solid waste rail transfer facility: collecting, storing or transferring solid waste outside of its original shipping container; or separating or processing solid waste (including baling, crushing, compacting and shredding). The term “solid waste” is defined in section 1004 of the Solid Waste Disposal Act, 42 U.S.C. 6903. If the verified notice contains false or misleading information, the exemption is void *ab initio.* Petitions to revoke the exemption under 49 U.S.C. 10502(d) may be filed at any time. The filing of a petition to revoke will not automatically stay the effectiveness of the exemption. Petitions to stay must be filed no later than April 10, 2008 (at least 7 days before the exemption becomes effective). An original and 10 copies of all pleadings, referring to STB Finance Docket No. 35121, must be filed with the Surface Transportation Board, 395 E Street, SW., Washington, DC 20423-0001. In addition, a copy of each pleading must be served on John D. Heffner, John D. Heffner, PLLC, 1750 K Street, NW., Suite 350, Washington, DC 20006. Board decisions and notices are available on our Web site at *http://www.stb.dot.gov.* Decided: March 26, 2008. By the Board, David M. Konschnik, Director, Office of Proceedings. Anne K. Quinlan, Acting Secretary. [FR Doc. E8-6844 Filed 4-2-08; 8:45 am] BILLING CODE 4915-01-P DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Docket No. AB-55 (Sub-No. 682X)] CSX Transportation, Inc.—Abandonment Exemption—in Greenbrier and Fayette Counties, WV CSX Transportation, Inc.
(CSXT)has filed a notice of exemption under 49 CFR Part 1152 Subpart F— *Exempt Abandonments* to abandon a 16.7-mile line of railroad on CSXT's Southern Region, Huntington-East Division, Sewell Subdivision, between milepost CAF 27, near Rainelle, and milepost CAF 43.7, near Nallen, in Greenbrier and Fayette Counties, WV. The line traverses United States Postal Service Zip Codes 25962, 25981 and 26680, and includes the stations of Babcock and Nallen. CSXT has certified that:
(1)No local traffic has moved over the line for at least 2 years;
(2)any overhead traffic on the line can be rerouted over other lines;
(3)no formal complaint filed by a user of rail service on the line (or by a state or local government entity acting on behalf of such user) regarding cessation of service over the line either is pending with the Board or with any U.S. District Court or has been decided in favor of complainant within the 2-year period; and
(4)the requirements of 49 CFR 1105.7 (environmental report), 49 CFR 1105.8 (historic report), 49 CFR 1105.11 (transmittal letter), 49 CFR 1105.12 (newspaper publication), and 49 CFR 1152.50(d)(1) (notice to governmental agencies) have been met. As a condition to this exemption, any employee adversely affected by the abandonment shall be protected under *Oregon Short Line R. Co.—Abandonment—Goshen,* 360 I.C.C. 91 (1979). To address whether this condition adequately protects affected employees, a petition for partial revocation under 49 U.S.C. 10502(d) must be filed. Provided no formal expression of intent to file an offer of financial assistance
(OFA)has been received, this exemption will be effective on May 3, 2008, unless stayed pending reconsideration. Petitions to stay that do not involve environmental issues, 1 formal expressions of intent to file an OFA under 49 CFR 1152.27(c)(2), 2 and trail use/rail banking requests under 49 CFR 1152.29 must be filed by April 14, 2008. Petitions to reopen or requests for public use conditions under 49 CFR 1152.28 must be filed by April 23, 2008, with the Surface Transportation Board, 395 E Street, SW., Washington, DC 20423-0001. 1 The Board will grant a stay if an informed decision on environmental issues (whether raised by a party or by the Board's Section of Environmental Analysis
(SEA)in its independent investigation) cannot be made before the exemption's effective date. *See Exemption of Out-of-Service Rail Lines,* 5 I.C.C.2d 377 (1989). Any request for a stay should be filed as soon as possible so that the Board may take appropriate action before the exemption's effective date. 2 Each OFA must be accompanied by the filing fee, which is currently set at $1,300. *See* 49 CFR 1002.2(f)(25). A copy of any petition filed with the Board should be sent to CSXT's representative: Louis E. Gitomer, 600 Baltimore Ave., Suite 301, Towson, MD 21204. If the verified notice contains false or misleading information, the exemption is void *ab initio.* CSXT has filed environmental and historic reports which address the effects, if any, of the abandonment on the environment and historic resources. SEA will issue an environmental assessment
(EA)by April 8, 2008. Interested persons may obtain a copy of the EA by writing to SEA (Room 1100, Surface Transportation Board, Washington, DC 20423-0001) or by calling SEA, at
(202)245-0305. [Assistance for the hearing impaired is available through the Federal Information Relay Service
(FIRS)at 1-800-877-8339.] Comments on environmental and historic preservation matters must be filed within 15 days after the EA becomes available to the public. Environmental, historic preservation, public use, or trail use/rail banking conditions will be imposed, where appropriate, in a subsequent decision. Pursuant to the provisions of 49 CFR 1152.29(e)(2), CSXT shall file a notice of consummation with the Board to signify that it has exercised the authority granted and fully abandoned the line. If consummation has not been effected by CSXT's filing of a notice of consummation by April 3, 2009, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire. Board decisions and notices are available on our Web site at “ *http://www.stb.dot.gov.* ” Decided: March 24, 2008. By the Board, David M. Konschnik, Director, Office of Proceedings. Anne K. Quinlan, Acting Secretary. [FR Doc. E8-6448 Filed 4-2-08; 8:45 am] BILLING CODE 4915-01-P DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Finance Docket No. 34658] Alaska Railroad Corporation—Petition for Exemption—To Construct and Operate a Rail Line Between North Pole, Alaska and Delta Junction in Alaska AGENCY: Surface Transportation Board. ACTION: Notice of availability of final scope of study for the Environmental Impact Statement (EIS). SUMMARY: On July 6, 2007, the Alaska Railroad Corporation
(ARRC)filed a petition with the Surface Transportation Board (Board) pursuant to 49 U.S.C. 10502 for authority to construct and operate a new rail line from the vicinity of North Pole to Delta Junction, Alaska. The project would involve the construction and operation of approximately 80 miles of new main line track. Figure 1 shows ARRC's existing track and the proposed rail line extension from North Pole to Delta Junction (All figures are available for viewing on the Board's Web site at *www.stb.dot.gov* by going to “Environmental Matters,” then selecting “Key Cases” in the dropdown; and then when the next page appears, clicking “Alaska Railroad—Northern Rail Extension”). Because the construction and operation of this project has the potential to result in significant environmental impacts, the Board's Section on Environmental Analysis
(SEA)has determined that the preparation of an Environmental Impact Statement
(EIS)is appropriate. To help determine the scope of the EIS, and as required by the Board's regulations at 49 CFR 1105.10(a)(2), SEA published in the **Federal Register** and mailed to the public on November 1, 2005, the Notice of Availability of Draft Scope of Study for the EIS, Notice of Scoping Meetings, and Request for Comments. SEA also prepared and distributed to the public a fact sheet that introduced ARRC's Northern Rail Extension, announced SEA's intent to prepare an EIS, requested comments, and gave notice of three public scoping meetings to over 400 citizens, elected officials, Federal, state, and local agencies, tribal organizations, and other potentially interested organizations received this information. SEA held three public scoping meetings in North Pole, Delta Junction, and Anchorage, Alaska on December 6, 7, and 8, 2005, respectively. The scoping comment period concluded January 13, 2006. The U.S. Army Corps of Engineers, Alaska District (USACE); U.S. Coast Guard, Seventeenth Coast Guard District (USCG); Bureau of Land Management, Alaska State Office (BLM); U.S. Department of Defense, Alaskan Command (ALCOM); U.S. Department of Defense, 354th Fighter Wing, Eielson Air Force Base (354th); Federal Transit Administration, Region 10 (FTA); Federal Railroad Administration (FRA); and Alaska Department of Natural Resources
(ADNR)requested and were granted cooperating agency status in preparation of the EIS. After review and consideration of all comments received, this notice sets forth the final scope of the EIS. The final scope reflects any changes to the draft scope as a result of the comments, summarizes and addresses the principal environmental concerns raised by the comments, and briefly discusses pertinent issues concerning this project that further clarify the final scope. FOR FURTHER INFORMATION CONTACT: David Navecky, Section of Environmental Analysis, Surface Transportation Board, 395 E Street, SW., Washington, DC 20423-0001, 202-245-0294, or call SEA's toll-free number for the project at 1-800-359-5142. Assistance for the hearing impaired is available through the Federal Information Relay Service
(FIRS)at 1-800-877-8339. The Web site for the Surface Transportation Board is *www.stb.dot.gov.* Christy Everett, Regulatory Branch, Fairbanks Field Office, U.S. Army Corps of Engineers—Alaska District, 2175 University Avenue, Suite 201E, Fairbanks, AK 99709-4777, 907-474-2166. James Helfinstine, Commander, Seventeenth Coast Guard District, P.O. Box 25517, Juneau, AK 99802-5517, 907-463-2268. Gary Foreman, Bureau of Land Management, Fairbanks District Office, 1150 University Avenue, Fairbanks, AK 99709, 907-474-2339. Chris Pike, Lieutenant Colonel, USAF, ALCOM/J4, 10471 20th Street, Elmendorf AFB, AK 99506-2100, 907-552-7013. Jeff Putnam, P.E., Deputy Base Civil Engineer, 354 CES/CEVP, 2310 Central Avenue, Suite 100, Eielson AFB, AK 99702-2299, 907-377-5213. Linda Gehrke, Federal Transit Administration, Region 10, Jackson Federal Building, 915 Second Avenue, Seattle, WA 98174-1002, 206-220-4463. John Winkle, Passenger Programs Division, Federal Railroad Administration, 1120 Vermont Avenue, NW., Washington, DC 20590, 202-493-6067. Donald Perrin, Large Project Coordinator, Office of Project Management and Permitting, Alaska Department of Natural Resources, 550 W. 7th Avenue, Suite 1160, Anchorage, AK 99501-1000, 907-269-7476. SUPPLEMENTARY INFORMATION: *Background:* ARRC operates and maintains a 29-mile-long branch, referred to as the Eielson Branch, that runs from ARRC's railyard facilities in Fairbanks and then south and east through the community of North Pole, Alaska to Eielson Air Force Base. The proposed action, referred to as the Northern Rail Extension, would involve the construction and operation of a new rail line from a point on the existing Eielson Branch in the vicinity of North Pole to Delta Junction, Alaska, a distance of approximately 80 miles. Figure 1 shows ARRC's existing track and the proposed rail line extension from North Pole to Delta Junction. The purpose of the project is to develop a safe and reliable all-weather rail connection to support anticipated freight and passenger needs between Fairbanks and Delta Junction. *Major elements of the project would include:* • Approximately 80 miles of new railroad track; • Crossings of the Tanana River, Little Delta River, Delta Creek, Delta River, and depending on the selected alternative, the Salcha River and Little Salcha River (along with many other small stream crossings); • Rock revetments and/or levees in and along the Tanana River to direct river flow under the proposed Tanana River bridge; • Grade-separated crossings of the Richardson and Alaska highways depending on the selected alternative; • Pipeline and utility crossings, including at least one crossing of the Trans-Alaska Pipeline System (TAPS); • Sidings and facilities for passenger, freight, and maintenance operations; and • Ancillary railroad support facilities including, but not limited to: communications towers and facilities, power lines, signals, and access roads. ARRC plans to support both commercial and passenger rail service needs with the proposed project. Anticipated commercial freight includes agricultural goods, mining products, and petrochemicals. The proposed project could also provide improved access to the military training areas on the west side of the Tanana River. *Environmental Review Process:* The Board is the lead agency, pursuant to 40 CFR 1501.5. SEA is responsible for ensuring that the Board complies with the National Environmental Policy Act (NEPA), 42 U.S.C. 4321-4335, and related environmental statutes, and for completing the environmental review process. The NEPA review process is intended to assist SEA, the cooperating agencies and the public in identifying and assessing the potential environmental consequences of a proposed action and the reasonable alternative before a decision is made. ICF International is serving as an independent third-party contractor to assist SEA in the environmental review process. SEA is directing and supervising the preparation of the EIS. The USACE, FTA, USCG, BLM, 354th, FRA, ALCOM, and ADNR are cooperating agencies, pursuant to 40 CFR 1501.6. The Federal agency actions considered in this EIS will include decisions, permits, approvals and funding related to the proposed action. The Board will decide whether or not to grant authority to ARRC to construct and operate the rail line pursuant to 49 U.S.C. 10901 and 10502. The USACE will decide whether or not to issue permits pursuant to Section 404 of the Clean Water Act (33 U.S.C. 1251-1376, as amended) and/or Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403). The USCG will decide whether or not to issue authority to construct bridges over navigable waters of the United States pursuant to the Department of Transportation Act of 1966 (49 U.S.C. 1651-1659). The BLM will decide whether or not to issue a right-of-way grant for BLM-administered lands under Title V of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1737). ALCOM will decide whether or not to concur with alignments on military lands including the Tanana Flats and Donnelly training areas. The 354th will decide whether or not to concur with alignments on or in proximity to Eielson AFB, which is home to the 354th Fighter Wing. FTA may provide funding for portions of the project's construction and/or operation. FRA is currently administering grant funding to ARRC for preliminary engineering and environmental analysis of the Northern Rail Extension. The EIS should include all of the information necessary for the decisions by the Board and the cooperating agencies. SEA and the cooperating agencies are preparing a Draft EIS
(DEIS)for the proposed action. The DEIS will address those environmental issues and concerns identified during the scoping process and detailed in this final scope. It will also discuss a reasonable range of alternatives to the proposed action, including a no-action alternative, and recommend environmental mitigation measures, as appropriate. The DEIS will be made available upon its completion for public review and comment. A Final EIS
(FEIS)will then be prepared reflecting further analysis by SEA and the cooperating agencies and the public and agency comments on the DEIS. In reaching their decisions on this case, the Board and the cooperating agencies will take into account the full environmental record, including the DEIS, the FEIS, and all public and agency comments received. *Proposed Action and Alternatives:* The NEPA regulations require Federal agencies to consider a reasonable range of feasible alternatives to the proposed action. The President's Council on Environmental Quality (CEQ), which oversees the implementation of NEPA, has stated in Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act Regulations that “[R]easonable alternatives include those that are practical or feasible from the technical and economic standpoint and using common sense * * *.” In this EIS, SEA and the cooperating agencies are considering a full range of alternatives that meet the purpose and need of the project, as well as the no-action alternative. Some alternatives have been dismissed from further analysis because they have been determined to be infeasible or because SEA and the cooperating agencies consider them to be environmentally inferior to other alternatives under consideration. The EIS will include a brief discussion of the reasons for eliminating certain alternatives from detailed analysis. The reasonable and feasible alternatives included for detailed analysis and alternatives dismissed from detailed analysis are discussed in more detail below. A. Alternatives The Proposed Action and Alternatives include common segments, alternative segments, and connector segments. Common segments are portions of the rail line with a single route option. Alternative segments provide multiple route options. Connector segments are short pieces of a rail alignment that connect alternative segments. There are two common segments—north and south common segments—with a combined length of 13.1 miles. Between these common segments are five sets of alternative segments with two or three segments each. Figure 2 shows the proposed routes, and divides the project into six areas. The six areas are shown in more detail in Figures 3-8. ARRC filed its preferred alternative with the Board on July 6, 2007. All common segments are part of the preferred alternative identified by ARRC. Alternative segments and connector segments that were filed as ARRC's preference are identified in the sections below. North Common Segment The North Common Segment starts at the east end of the Chena River Overflow Bridge off of the Eielson Branch and extends 2.7 miles southeast to meet the Eielson Alternative Segments. The segment runs roughly parallel to the Richardson Highway, crosses the Eielson Farm Road, and is on the east side of the Tanana River (see Figure 3). Eielson Alternative Segments SEA is considering three alternative segments through the Eielson area that start about one half mile southeast of the Eielson Farm Road. Each alternative segment has at least one shared segment section. The alternative segments pass between the fence line of Eielson Air Force Base on the east and the Eielson Farm Community on the west. They connect with the Salcha Alternative Segments (see Figure 3). *Eielson Alternative Segment 1* takes the most westerly route, closer to the farm community and farthest from the Richardson Highway. The segment crosses through some farm community property while staying to the west along Piledriver Slough. The segment crosses a few roads before hugging the Tanana River for approximately the last 3 miles of the alternative segment. This alternative segment is 10.3 miles long. *Eielson Alternative Segment 2* follows the same route as the Eielson Alternative Segment 1 for approximately 5.7 miles, at which point Eielson Alternative Segment 2 bears more to the southeast, crosses Piledriver Slough, and follows a route closer to the Richardson Highway. The last 2.2 miles of Eielson Alternative Segment 2 share the same route as Eielson Alternative Segment 3. This alternative segment is 10.0 miles long. *Eielson Alternative Segment 3* takes the most easterly route, remaining closer to the Richardson Highway and located largely within Eielson Air Force Base property, but outside the base fence line. The segment would cross Piledriver Slough approximately one half mile into its route and then stay east of the slough for approximately 4.2 miles before crossing Twentythreemile Slough, a tributary of Piledriver Slough. This alternative segment is 10.1 miles long. This is ARRC's preferred alternative segment. Salcha Alternative Segments SEA is considering two alternative segments for the Salcha section, each starting approximately 0.3 mile northwest of the intersection of the Old Richardson Highway and Bradbury Drive. The segments cross the Tanana River at different places and meet four connector segments (see Figure 4). *Salcha Alternative Segment 1* crosses the Tanana River just west of the intersection of the Bradbury Drive and Ruger Trail. After crossing the river, the alternative segment runs through the Tanana Flats Training Area on the west side of the river. The segment is 11.8 miles long and would require a dual-modal bridge ranging from 2,400 to 3,500 feet in length to cross the Tanana River. This is ARRC's preferred alternative segment. *Salcha Alternative Segment 2* remains on the east side of the Tanana River for most of its 13.8-mile route. For approximately the first 9 miles, the route parallels the Tanana River and Richardson Highway. The river then curves west while the route maintains a southerly direction. In approximately the last 3 miles, the segment crosses the river at Flag Hill, where it connects with one of the Central Alternative Segments. The Tanana River crossing would require a dual-modal bridge span ranging from 1,300 to 2,800 feet in length. This alternative segment would require relocation of portions of the Richardson Highway and Salcha Elementary School. Approximately two miles of the highway would need to be relocated further into the river bluff and the rail line would assume the location of the highway by the river. In addition to the Tanana River main channel crossing, the alternative segment would cross some Tanana River side channels, the Little Salcha River, and the Salcha River. Connector Segments The connector segments are short pieces of rail alignment between 0.9 and 4.4 miles long that connect alternative segments that do not have a common start and end points. There are five connector segments on the west side of the Tanana River that connect the Central Alternative Segments to the Salcha and Donnelly alternative segments (see Figure 5). Connector Segments B and E are part of the ARRC's preferred route. Central Alternative Segments SEA is considering two alternative segments between the Salcha and Donnelly alternative segments. Both Central Alternative Segments run parallel to the west bank of the Tanana River in a southeasterly direction (see Figure 5). *Central Alternative Segment 1* connects to the Salcha Alternative Segments via Connector Segment A from Salcha Alternative Segment 1 or Connector Segment C from Salcha Alternative Segment 2 and is further from the Tanana River than Central Alternative Segment 2. The alternative segment is 5.1 miles long and out of the Tanana River floodplain. Central Alternative Segment 1 does not connect to Donnelly Alternative Segment 2 due to terrain considerations. *The Central Alternative Segment 2* connects to the Salcha Alternative Segments via Connector Segment B from Salcha Alternative Segment 1 or Connector Segment D from Salcha Alternative Segment 2. The alternative segment is within the floodplain of the Tanana River and has several clearwater stream crossings. The Central Alternative Segment is 3.6 miles long and is the Applicant's preferred alternative. The alternative segment connects directly to Donnelly Alternative Segment 2 and to Donnelly Alternative Segment 1 via Connector Segment E. Donnelly Alternative Segments SEA is considering two alternative segments for the Donnelly area (see Figure 6). Both run on the southwestern side of the Tanana River and end approximately 4 miles east of Delta Creek, where they meet the South Common Segment. The alternative segments both cross Delta Creek and the Little Delta River but run through distinct terrains with different elevation profiles. *Donnelly Alternative Segment 1* takes the southern route, farther from the Tanana River and through the northeastern corner of the Donnelly Training Area. This segment is 25.8 miles long and crosses steep grades. The route would cross the Delta Creek paleochannel, an ancient water channel that appears to no longer be active but could become active during periods of high flow. This is ARRC's preferred alternative segment. *Donnelly Alternative Segment 2* runs closer to the Tanana River than Donnelly Alternative Segment 1. This segment is 26.2 miles long and crosses milder grades than Donnelly Alternative Segment 1, but faces more difficult geotechnical considerations than the other Donnelly alternative. South Common Segment This segment would connect the two Donnelly Alternative Segments to the Delta Alternative Segments described below. The segment begins approximately four miles east of Delta Creek and runs roughly parallel to the Tanana River until the river curves southerly, just north of Delta Junction. The segment is 10.5 miles long (see Figure 7). Delta Alternative Segments SEA is considering two alternative segments for the Delta area. Each of these segments crosses the Delta River: One north and one south of Delta Junction. The alternative segments meet at the end of the alignment about 3 miles west of the Tanana River, adjacent to the Alaska Highway (see Figure 8). B. Alternatives Excluded From Detailed Analysis Based on the process described under Proposed Action and Alternatives, ARRC developed the initial sets of alignments and provided them to SEA for consideration as alternatives. Since 2005, ARRC presented SEA with several versions of the alignments. Examples of these versions are shown in Figures 9 and 10. The latest alignment versions and the Applicant's preferred alignments were identified to SEA in two key sources; ARRC's Preferred Route Alternative Report published in March 2007 and ARRC's filing of its preferred route with the Board on July 6, 2007. SEA identified alignments and segments proposed to be carried forward for more detailed study, and others proposed to be eliminated from further consideration. The Proposed Action and Alternatives Section describes the alternative segments that have been retained by SEA for detailed analysis. The following discussion describes several alignments and alternatives for segments that were initially considered but eliminated from detailed study in the Salcha, Donnelly, and Delta segments of the alignment. For each of the alternatives that were eliminated, a brief discussion of the alternative and the reasons for elimination is provided. Eielson Area Alignments Alignments Proposed by ARRC During SEA's EIS scoping comment period, ARRC initially presented three alignments (formerly called N1, N2, and N3) that crossed the Eielson Farm Community. Members of that community strongly opposed the N1 and N2 alignments, which were closer to the Tanana River, because of private property impacts (see Figure 11). The N1 alignment, as initially proposed by ARRC in November 2005, crossed the Tanana River from the Eielson Farm Community into the Tanana Flats Training Area. The alignment then continued south through the training area on the western side of the Tanana River. During scoping, ALCOM expressed concern about the amount of encroachment this alignment would have on the training area. Other comments raised strong concerns about the alignment passing through a prime moose calving area. After the scoping comment period, ARRC developed two other feasible and reasonable alignments, now Eielson Alternative Segments 1 and 2, and dropped the N1 alignment through Tanana Flats Training Area. Because there were few design differences through the Eielson Farm Community among the Eielson alignments proposed by ARRC in 2005, ARRC dropped the first half of the N1 and N2 alignments, the two alignments with greater private property intrusion. ARRC instead retained one (formerly called N3 and Eielson West) of the three alignments presented in November 2005 and after the scoping comment period offered a new alignment (formerly called Eielson East) located to the east of the Eielson Farm Community, closer to the Eielson Air Force Base fenced boundary. In the interim between the end of the scoping comment period and ARRC's Preferred Route Alternative Report, ARRC developed a crossover alignment between Eielson East and West. SEA agreed with dropping the N1 and N2 alignments through the Eielson Farm Community and decided to retain the Eielson East and West alignments, renamed as Eielson 1 and 2, including the crossover alignment, for detailed analysis in this EIS as the Eielson Alternative Segments. Alignments Proposed in Scoping Comments In response to scoping comments that were received by SEA and posted on the Board's Web site, ARRC considered alignments that crossed the Tanana River shortly before or after the Chena River overflow; therefore bypassing the Eielson Farm Community. These alignments, however, would create further intrusion into the Tanana Flats Training Area and also affect important moose habitat. Therefore, ARRC did not propose these alignments to SEA in ARRC Preferred Route Alternative Report in March 2007. Comments also recommended an alignment that crossed the Richardson Highway at Milepost 0. The recommended alignment would either continue through Eielson Air Force Base using an existing track or go around the Air Force Base to the east. According to ARRC, during its the initial corridor analysis, ARRC considered using the additional section of the existing Eielson Branch line, but determined that using the line was not reasonable or practicable because of the current grade crossing of the Richardson Highway and topography. Because of security and operational concerns, ARRC anticipated that the 354th Fighter Wing would consider use of the existing track through Eielson Air Force Base for through-movement of trains as highly undesirable. Land use and other conditions around the east side of Eielson Air Force Base are unfavorable for an alignment due to potential private property impacts, concerns over existing land use, and steep topography. For these reasons, ARRC determined that alignments east of the Richardson Highway from the start of the project at Milepost 0 to the south end of the Air Force Base runway are not practicable or feasible. Comments also recommended an alignment through Eielson Air Force Base along the east side of the Richardson Highway. Such an alignment would avoid Piledriver Slough and private property in the Eielson Farm Community. ARRC reviewed the feasibility of alignments in this area. Based on information obtained from the military, ARRC determined that alignments east of the highway in proximity to the Air Force Base were infeasible due to encroachment on the operating and runway/taxi areas. Salcha Area Alignments Alignments Proposed by ARRC Before SEA's EIS scoping period began, ARRC proposed four alignments through the Salcha area including two on the western side of the Tanana River south of ARRC's proposed Salcha Crossing. These alignments paralleled each other until merging in the Flag Hill area. One alignment (formerly called the N5 and subsequently the Salcha West alignment) closely followed the bank of the Tanana River; therefore, intruding less into the Tanana Flats Training Area than the N1 alignment while having potentially higher impacts on fish habitat and higher construction costs. The second alignment (formerly called N1) encroached more on military property, but avoided the Tanana River bank and some of the fishery concerns. Because of the greater potential conflict with military use, ARRC retained the route closer to the Tanana River for further examination and dropped alignment N1. The alignment closer to the Tanana River was retained by SEA for detailed analysis and is now called the Salcha Alternative Segment 1 (see Figure 12). Two alignments were also proposed by ARRC on the east side of the Tanana River. One Salcha area alignment (formerly known as the N3 and subsequently the Salcha East alignment), retained in ARRC's March 2007 Preferred Route Alternative Report, traveled east of the Richardson Highway and south of the Eielson Air Force Base. Although the alignment met the purpose and need, this alignment was not retained by SEA as an alternative for detailed analysis because it would affect a significantly greater wetland acreage than the two Salcha Alternative Segments that are being retained for detailed study. The N3 or Salcha East alignment would affect a total of approximately 304 acres of wetlands, compared to 103 acres for the Salcha Central alignment, and 53 acres for the Salcha West alignment. This segment would also more directly affect cultural resources such as remains of the historic Salchaket Village. SEA retained the other alignment (formerly known as the N2 and subsequently the Salcha Central alignment) on the east side of the Tanana River for detailed analysis, and is now called *Salcha Alternative Segment 2* . Alignments Proposed in Scoping Comments The east bank of the Tanana River, particularly through Salcha, remains transient and unstable as the river continues to migrate east. The Richardson Highway, along Salcha Bluff, is located on a narrow shelf between the steep bluff and the main channel of the Tanana River. In response to scoping comments, ARRC considered an alignment that would cross the eastern-most main channel to a pair of islands. This alignment would continue south of the bluff and traverse the islands before crossing back to the east bank of the Tanana River. However, after further examination of the river hydraulics, the stability of the islands in this area, and long-term serviceability, ARRC proposed to drop this alignment. SEA did not retain this alignment as an alternative in the DEIS. Richardson Highway Comments received during SEA's EIS scoping period recommended a rail alternative that paralleled the Richardson Highway all the way to Delta Junction. ARRC, upon request from SEA, considered an alignment following the Richardson Highway, but determined such an alignment was not reasonable or feasible. The hilly topography on the east side of the Tanana River is considerably less favorable for rail line construction south of Flag Hill. There are also a large number of private land holdings along the highway, requiring potentially significant mitigation for continued vehicle access and potentially causing large impacts to private property. SEA did not retain this alignment as an alternative in the DEIS. Blair Lakes Spur Before the start of scoping in 2005, ARRC proposed a spur to the Blair Lakes Range and/or other facilities to support military operations including sidings, off-load facilities, and end-of-track facilities. However, the spur would only be constructed if requested by the military. At this time, the spur has not been requested and the military has indicated to SEA that such a spur may interfere with training activities at the Blair Lakes Range. Therefore, the Blair Lakes Spur will not be analyzed in the DEIS (see Figure 10). Tanana Area Alignments All Tanana area alignments have been retained for detailed analysis in the DEIS. These alignments have been renamed as the Central Alternative Segments (see Figure 13). Donnelly Area Alignments During SEA's scoping process, ARRC presented two alignments to SEA through the Donnelly area. One alignment (formerly named S2/Donnelly East alignment) hugged the west side of the Tanana River while the second alignment (formerly named S1/Donnelly Central alignment) followed the Tanana River initially before heading further south and west near the Little Delta River (see Figures 14 and 15). In response to comments from agencies, ARRC shifted an early version of S2/Donnelly East further inland from the Tanana River due to fish habitat concerns. In ARRC's March 2007 Preferred Route Alternative Report both of these alignments were retained, but ARRC included a third alignment called the Donnelly West alignment, which was developed by ARRC after the scoping period. Although ARRC had shifted the alignment to minimize potential impacts, SEA decided to not retain the Donnelly East alignment for detailed analysis in the DEIS. In addition to affecting a substantial amount of wetlands (approximately 363 acres), it would create adverse impacts through the displacement of summer homes and vacation cabins that the other two alignments avoid. The Donnelly East alignment would also cross sensitive wildlife habitat contained in clear backwater channels and springs that serve as prime spawning and rearing habitat for salmon. ARRC has also indicated that this alignment would traverse steep hills with potential icing problems as well as areas that exhibit groundwater upwelling and quicksand-type conditions. SEA retained Donnelly Alternative Segments 1 and 2 for detailed analysis in this DEIS. Delta Area Alignments During scoping, ARRC presented two alignments (formerly named S1 and S2 and Delta Central and South, respectively) in the Delta Junction area that crossed the Delta River from the Donnelly alignments and continued to the rail terminus on the south side of Delta Junction (see Figure 16). In the interim between scoping and the March 2007 Preferred Route Alternative Analysis Report, ARRC developed a third alignment (formerly named the S5/Delta North alignment) that crossed the Delta River north of Delta Junction and continued south along the east side of the Richardson Highway to the rail terminus. SEA decided not to retain the Delta Central alignment for detailed analysis because it would involve greater adverse impacts to residential and commercial property in Delta Junction than the other alignments. In addition, the Delta Central alignment would involve adverse impacts to a larger amount of wetlands (approximately 83 acres) than the two alternative segments being retained for detailed analysis (36 acres for the Delta North Segment and 58 acres for the Delta South segment). SEA retained Delta Alternative Segments 1 and 2 for detailed analysis in the DEIS. Alignment Along the Alaska Range In their October 2006 review of the range of reasonable alternatives, USACE recommended that the EIS include analysis of an alternative along the foothills of the Alaska Range to the military training areas on the west side of the Tanana River and that the EIS evaluate transportation alternatives other than rail. SEA eliminated further analysis of these recommended alternatives because they did not meet one of the purposes of the proposed Northern Rail Extension; specifically to provide passenger train service between Fairbanks and Delta Junction and to provide common carrier rail service to Delta Junction. Public Participation As part of the environmental review process to date, SEA has conducted broad public outreach activities to inform the public about the Proposed Action and to facilitate public participation. SEA consulted with and will continue to consult with Federal, state, and local agencies, affected communities, and all interested parties to gather and disseminate information about the proposal. SEA and the cooperating agencies have also developed and implemented a Government-to-Government Consultation and Coordination Plan to seek, discuss, and consider the views of Federally recognized Tribal Governments regarding the Proposed Action and Alternatives. Response to Comments SEA and the cooperating agencies reviewed and considered the comments received on the draft scope (26 comments with approximately 180 signatures) in preparation of this final scope of the EIS. The final scope reflects any changes to the draft scope as a result of comments. Other changes in the final scope were made for clarification or as a result of additional analysis. Additions and modifications reflected in the final scope include: • Analysis of impacts on fisheries and fish habitat. Federal and state agencies provided comments on the potential impacts on fish and fish habitat. As a point of clarification, the EIS will consider all project effects on fish resources including: impacts from road placement, grade cuts and fills, changes in permafrost levels, types and locations of crossings and the accommodation of ice formation. The EIS will also evaluate impacts to aquatic resources in terms of aerial acreage or linear extent to be affected and the functions these resources perform. • Analysis of impacts on birds. Comments stated concerns about the potential impacts on birds. As a point of clarification, the analysis in the EIS will consider the locations of raptor nests near proposed alignments. These nests were identified from surveys over three nesting seasons. The EIS will address the bird species generally present in the project area. • Analysis of impacts on moose. Comments stated that moose strikes by trains are among the greatest wildlife concerns. To clarify, the EIS will address moose habitat, calving and concentration areas and travel corridors, and proposed protocols for monitoring and reporting moose strikes. The EIS will consider data from observations conducted during the winters of 2005/2006 and 2006/2007, and will identify potential mitigation measures, as appropriate. • Analysis of wildlife and habitat. Comments recommend that the EIS consider the impacts of the proposed project on other wildlife such as bison and high quality plant communities such as freshwater fens and open-water oxbows. Federal agencies also requested that the EIS consider impacts from the spread of invasive species and the disruption of aquatic habitat by the placement of the rail line. The EIS will consider these impacts. • Analysis of water resources. Comments requested that the EIS evaluate the potential project interactions between permafrost and surface water and groundwater and the effects of the project on rivers and ice formation. Other comments listed concerns regarding the potential project impacts on floodplains. Comments requested that the EIS include a discussion of best management practices applied to minimize impacts of the Proposed Action on water resources. The EIS will contain a floodplain analysis and will evaluate the potential impacts to surface water and ground water. • Analysis of navigation. Comments requested that the EIS identify existing navigable waterways within the project area and analyze the potential impacts on navigability resulting from each alternative; describe the permitting requirements for the various alternatives with regards to navigation; and propose mitigation measures to minimize or eliminate potential impacts to navigation, as appropriate. The EIS will address navigation, as requested. • Analysis of rail safety. Comments stated concerns over rail and highway safety such as hazardous materials transport and at-grade crossings. The EIS will examine the potential safety impacts that could result from the proposed action. • Analysis of recreation and access. Comments requested that the EIS address the potential impacts on recreation areas, access to these areas, and safety. Analysis of these issues will be included in the EIS. • Effects from expanded use of military training areas. Comments requested that the EIS evaluate the impacts of expanded use of the Tanana Flats and Donnelly training areas. Consultations with the military regarding future training plans indicate that the Proposed Action would not increase or shift training activities in these areas in the foreseeable future. Therefore, the project area for most analyses regarding the training areas will be limited to the rail line and immediate vicinity. • Analysis of an Alaska-Canada rail link and Alaska-Canada natural gas pipeline as reasonably foreseeable future actions. Although the Alaska-Canada rail link has been proposed in the past, there are no formalized plans to construct, operate or fund a railroad to Canada. Therefore, SEA and the cooperating agencies do not consider this reasonably foreseeable. However, if an Alaska-Canada rail link becomes reasonably foreseeable during the process of preparing the EIS, SEA and the cooperating agencies will include it in the analysis of impacts. The State has accepted a proposal from TransCanada Pipeline Corporation to construct a natural gas pipeline along the TAPS, pending approval by the legislature and a public review period. SEA will monitor the State review process and whether TransCanada files an application with the Federal Energy Regulatory Commission before determining that it is reasonably foreseeable. Under CEQ's guidelines, the analysis of environmental effects resulting from a proposed action requires the separation of actions and effects that are reasonably foreseeable as opposed to results that are remote and speculative. Typically, the Board analyzes potential rail operations for a period of three to five years into the future depending on an applicant's projections. Projects for rail operations beyond these time frames are generally not reasonably foreseeable. Beyond three to five years, for example, fluctuations in the economy and demand for infrastructure projects become speculative. The time frame for the analysis of potential effects of other projects or actions will likely vary by resource area depending on the availability of reliable information and the current and predicted health of the resource. • Analysis of alternatives that do not meet the ARRC's stated purpose and need. Under NEPA, an applicant's goals are important in defining the range of feasible alternatives. NEPA does not require discussion of an alternative that is not reasonably related to the proposal considered by the agencies. Here, the proposed project is intended to provide freight and passenger rail service from Fairbanks to the region south of North Pole, Alaska. Comments were received suggesting that the EIS evaluate transportation alternatives such as improvements to the Richardson Highway, as an alternative to rail construction. This alternative, while it may improve transportation access to Delta Junction, does not advance the applicant's goals of expanding reliable rail service in interior Alaska, and therefore will not be evaluated as a separate alternative in the EIS. • Analysis of ARRC's proposed Eielson Branch Realignment Project (now the Fort Wainwright Realignment Project) and the Northern Rail Extension under one NEPA document. The comment stated that the projects are connected and suggested that one NEPA document could more efficiently analyze both projects. However, the Eielson Branch realignment would be constructed regardless of whether the Northern Rail Extension is built and the NEPA process for the realignment is on a different schedule. Therefore, both projects are best analyzed separately. Environmental Impact Analysis Proposed New Construction Analysis in the EIS will address the proposed activities associated with construction and operation of new rail facilities and their potential environmental impacts, as appropriate. Impact Categories The EIS will analyze potential direct and indirect impacts from construction and operation of new rail facilities on the human and natural environment for each alternative, or in the case of the no-action, the potential direct and indirect impacts of these activities not occurring. Impact areas addressed will include the categories of land use, biological resources, water resources including wetlands and other waters of the US, navigation, geology and soils, air quality, noise, energy resources, socioeconomics as they relate to physical changes in the environment, safety, highway-rail grade crossing delay, cultural and historic resources, subsistence, recreation, aesthetics, and environmental justice. The EIS will include a discussion of each of these categories as they currently exist in the project area and will address the potential direct and indirect impacts of each alternative on each category as described below: 1. Safety. The EIS will: a. Describe existing road/rail grade crossing safety and analyze the potential for an increase in accidents related to the new rail operations, as appropriate. b. Describe existing rail operations and analyze the potential for increased probability of train accidents, as appropriate. c. Evaluate the potential for disruption and delays to the movement of emergency vehicles due to new rail line construction and operation for each alternative. d. Propose mitigative measures to minimize or eliminate potential project impacts to safety, as appropriate. 2. Land Use. The EIS will: a. Evaluate potential impacts of each alternative on existing land use patterns within the project area and identify those land uses that would be potentially impacted by new rail line construction. b. Analyze the potential impacts associated with each alternative to land uses identified within the project area. Such potential impacts may include incompatibility with existing land uses and conversion of land to railroad uses. c. Propose mitigative measures to minimize or eliminate potential impacts to land use, as appropriate. 3. Recreation (as part of the land use discussion and a separate Section 4(f) to meet the requirements of the Federal Railroad Administration and Federal Transit Administration). The EIS will: a. Evaluate existing conditions and the potential impacts of the alternatives, including the various new rail line construction alignments and their operation, on recreational opportunities in the project area. b. Propose mitigative measures to minimize or eliminate potential project impacts on recreational opportunities, as appropriate. c. Identify resources including parks, wildlife refuges, and sites eligible for the National Register of Historic Places and evaluate unavoidable impacts to them for the 4(f) evaluation, in accordance with Section 4(f) of the Department of Transportation Act of 1966, as amended. 4. Biological Resources. The EIS will: a. Evaluate the existing biological resources within the project area, including vegetative communities, wildlife and fisheries, wetlands, and Federal and state threatened or endangered species and the potential impacts to these resources resulting from each alternative. b. Describe any wildlife sanctuaries, refuges, national or state parks, forests, or grasslands and evaluate the potential impacts to these resources resulting from each alternative. c. Propose mitigative measures to avoid, minimize, or compensate for potential impacts to biological resources, as appropriate. 5. Water Resources. The EIS will: a. Describe the existing surface water and groundwater resources within the project area, including lakes, rivers, streams, stock ponds, wetlands, and floodplains and analyze the potential impacts on these resources resulting from each alternative. b. Describe the permitting requirements for the various alternatives with regard to wetlands, stream and river crossings, water quality, floodplains, and erosion control. c. Propose mitigative measures to avoid, minimize, or compensate for potential project impacts to water resources, as appropriate. 6. Navigation. The EIS will: a. Identify existing navigable waterways within the project area and analyze the potential impacts on navigability resulting from each alternative. b. Describe the permitting requirements for the various alternatives with regards to navigation. c. Propose mitigative measures to minimize or eliminate potential impacts to navigation, as appropriate. 7. Geology and Soils. The EIS will: a. Describe the geology, soils, permafrost and seismic conditions found within the project area, including unique or problematic geologic formations or soils, prime farmland, prime and unique soils, and hydric soils and analyze the potential impacts on these resources resulting from the various alternatives for construction and operation of a new rail line. b. Evaluate potential measures employed to avoid or construct through unique or problematic geologic formations, soils, or permafrost. c. Propose mitigative measures to minimize or eliminate potential project impacts to geology and soils, as appropriate. 8. Air Quality. The EIS will: a. Evaluate air emissions from rail operations, if the alternative would affect a Class I or non-attainment or maintenance area as designated under the Clean Air Act. b. Describe the potential air quality impacts resulting from new rail line construction activities. c. Propose mitigative measures to minimize or eliminate potential project impacts to air quality, as appropriate. 9. Noise and Vibration. The EIS will: a. Describe the potential noise and vibration impacts during new rail line construction. b. Describe the potential noise and vibration impacts of rail line operations over new and existing rail lines. c. Propose mitigative measures to minimize or eliminate potential project impacts to sensitive noise receptors, as appropriate. 10. Energy Resources. The EIS will: a. Describe and evaluate the potential impact of the new rail line on the distribution of energy resources in the project area for each alternative, including petroleum and gas pipelines and overhead electric transmission lines. b. Propose mitigative measures to minimize or eliminate potential project impacts to energy resources, as appropriate. 11. Socioeconomics. The EIS will: a. Analyze the effects of a potential influx of construction workers and the potential increase in demand for local services interrelated with natural or physical environmental effects. b. Propose mitigative measures to minimize or eliminate potential project adverse impacts to social and economic resources, as appropriate. 12. Transportation Systems. The EIS will: a. Evaluate the potential impacts of each alternative, including new rail line construction and operation, on the existing transportation network in the project area, including vehicular delays at grade crossings. b. Propose mitigative measures to minimize or eliminate potential project impacts to transportation systems, as appropriate. 13. Cultural and Historic Resources. The EIS will: a. Analyze the potential impacts to historic structures or districts previously recorded and determined potentially eligible, eligible, or listed on the National Register of Historic Places within or immediately adjacent to the right-of-way for the proposed rail alignments. b. Evaluate the potential impacts of each alternative to archaeological sites previously recorded and either listed as unevaluated or determined potentially eligible, eligible, or listed on the National Register of Historic Places within the right-of-way for the alternative rail alignments and the no-action alternative. c. Analyze the potential impacts to historic structures or districts or archaeological sites identified by ground survey and determined potentially eligible, eligible, or listed on the National Register of Historic Places within or immediately adjacent to the right-of-way for the alternative rail alignments. d. Evaluate the potential general impacts to paleontological resources in the project area due to project construction, if necessary and required. e. Propose mitigative measures to minimize or eliminate potential project impacts to cultural and historic resources, as appropriate. 14. Subsistence. The EIS will: a. Analyze the potential impacts of the alternatives, including the alternate alignments for new rail line construction and operation, on subsistence activities in the project area. b. Propose mitigative measures to minimize or eliminate potential project impacts on subsistence activities, as appropriate. 15. Aesthetics. The EIS will: a. Evaluate the potential impacts of each alternative, including construction and operation of the rail lines, on visual resources and other aesthetic values within the project area. b. Propose mitigative measures to minimize or eliminate potential project impacts on aesthetics, as appropriate. 16. Environmental Justice. The EIS will: a. Evaluate the potential impacts of each alternative, including construction and operation of the rail lines, on local and regional minority populations and low-income populations. b. Propose mitigative measures to minimize or eliminate potential project impacts on environmental justice issues, as appropriate. Cumulative Impacts The EIS will analyze cumulative impacts for the alternatives for the proposed construction and operation of new rail facilities on the human and natural environment, or in the case of the no-action, of the lack of these activities. SEA will analyze the potential additive effects of the Proposed Action and Alternatives to the effects on applicable resources of relevant past, present, and reasonably foreseeable projects or actions in the area of the proposed action. SEA will determine appropriate time and geographic boundaries for applicable resource-specific analyses in order to focus the cumulative impacts analysis on truly meaningful effects. Resources addressed may include the categories of land use, biological resources, water resources including wetlands and other waters of the U.S., navigation, geology and soils, air quality, noise, energy resources, socioeconomics as they relate to physical changes in the environment, rail safety, transportation systems, cultural and historic resources, subsistence, recreation, aesthetics, and environmental justice. The EIS will review all relevant past, concurrent, and reasonably foreseeable actions that could result in collectively significant impacts to each of the categories of impacts listed above, and to any other categories of impacts that may be addressed as a result of comments received during the scoping process or the DEIS comment period. By the Board, Victoria Rutson, Chief, Section of Environmental Analysis. Anne K. Quinlan, Acting Secretary. [FR Doc. E8-6939 Filed 4-2-08; 8:45 am] BILLING CODE 4915-01-P DEPARTMENT OF THE TREASURY Financial Crimes Enforcement Network; Proposed Renewal Without Change; Comment Request; Imposition of Special Measure Against VEF Banka, as a Financial Institution of Primary Money Laundering Concern AGENCY: Financial Crimes Enforcement Network (“FinCEN”), Department of the Treasury. ACTION: Notice and request for comments. SUMMARY: As part of our continuing effort to reduce paperwork and respondent burden, FinCEN invites comment on a proposed renewal, without change, to information collection requirements found in existing regulations imposing the imposition of a special measure against the VEF Banka, as a financial institution of primary money laundering concern. This request for comments is being made pursuant to the Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. 3506(c)(2)(A). DATES: Written comments are welcome and must be received on or before June 2, 2008. ADDRESSES: Written comments should be submitted to: Financial Crimes Enforcement Network, P.O. Box 39, Vienna, VA 22183, Attention: Comment Request; Imposition of Special Measure against VEF Banka. Comments also may be submitted by electronic mail to the following Internet address: *regcomments@fincen.gov,* again with a caption, in the body of the text, “Attention: Comment Request; Imposition of Special Measure against VEF Banka.” *Inspection of comments:* Comments may be inspected, between 10 a.m. and 4 p.m., in the FinCEN reading room in Vienna, VA. Persons wishing to inspect the comments submitted must request an appointment with the Disclosure Officer by telephoning
(703)905-5034 (Not a toll free call). FOR FURTHER INFORMATION CONTACT: Financial Crimes Enforcement Network, Regulatory Policy and Programs Division at
(800)949-2732. SUPPLEMENTARY INFORMATION: *Abstract:* The Director of the Financial Crimes Enforcement Network is the delegated administrator of the Bank Secrecy Act. The Act authorizes the Director to issue regulations to require all financial institutions defined as such pursuant to the Act to maintain or file certain reports or records that have been determined to have a high degree of usefulness in criminal, tax, or regulatory investigations or proceedings, or in the conduct of intelligence or counter-intelligence activities, including analysis, to protect against international terrorism. 1 1 Pub. L. 91-508, as amended and codified at 12 U.S.C. 1829b, 12 U.S.C. 1951-1959 and 31 U.S.C. 5311-5332. Language expanding the scope of the Bank Secrecy Act to intelligence or counter-intelligence activities to protect against international terrorism was added by section 358 of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, Pub. L. No. 107-56. Regulations implementing section 5318A of title 31, United States Code can be found in part at 31 CFR 103.192. In general, the regulations require financial institutions, as defined in 31 U.S.C. 5312(a)(2) and 31 CFR 103.11 to establish, document, and maintain programs as an aid in protecting and securing the U.S. financial system. *Title:* Imposition of Special Measure against VEF Banka. *Office of Management and Budget Control Number:* 1506-0041. *Abstract:* The Financial Crimes Enforcement Network is issuing this notice to renew the control number for an information collection in an existing regulation concerning the imposition of a special measure against the VEF Banka, as a financial institution of primary money laundering concern, pursuant to the authority contained in 31 U.S.C. 5318A. *Current Action:* Renewal without change to existing regulations. *Type of Review:* Extension of a currently approved information collection. *Affected Public:* Business and other for-profit institutions. *Burden:* Estimated Number of Respondents: 5,000. Estimated Number of Responses: 5,000. Estimated Number of Hours: 5,000. (Estimated at one hour per respondent). An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by the Office of Management and Budget. Records required to be retained under the Bank Secrecy Act must be retained for five years. Generally, information collected pursuant to the Bank Secrecy Act is confidential but may be shared as provided by law with regulatory and law enforcement authorities. Request for Comments Comments submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget approval. All comments will become a matter of public record. Comments are invited on:
(a)Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility;
(b)the accuracy of the agency's estimate of the burden of the collection of information;
(c)ways to enhance the quality, utility, and clarity of the information to be collected:
(d)ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology; and
(e)estimates of capital or start-up costs and costs of operation, maintenance and purchase of services to provide information. Dated: March 26, 2008. James H. Freis, Jr., Director, Financial Crimes Enforcement Network. [FR Doc. E8-6889 Filed 4-2-08; 8:45 am] BILLING CODE 4810-02-P 73 65 Thursday, April 3, 2008 Corrections CRYSTAL ENVIRONMENTAL PROTECTION AGENCY [EPA-R04-OW-2008-0179;FRL-8543-7] Proposed Determination To Prohibit, Restrict, or Deny the Specification, or the Use for Specification, of an Area as a Disposal Site, Yazoo River Basin, Issaquena County, MS Correction In notice document E8-5401 beginning on page 14806, in the issue of Wednesday, March 19, 2008, make the following correction: On page 14815, footnote 22 is missing and is corrected to read: 22 EPA, 2008. Synopsis of Yazoo Backwater Area Hydrology. Wetlands Regulatory Section, Water Management Division, EPA Region 4, Atlanta, GA. [FR Doc. Z8-5401 Filed 4-2-08; 8:45 am] BILLING CODE 1505-01-D 73 65 Thursday, April 3, 2008 Proposed Rules Part II Environmental Protection Agency 40 CFR Part 63 National Emission Standards for Hazardous Air Pollutants: Area Source Standards for Nine Metal Fabrication and Finishing Source Categories; Proposed Rule ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 63 [EPA-HQ-OAR-2006-0306; FRL-8547-2] RIN 2060-AO27 National Emission Standards for Hazardous Air Pollutants: Area Source Standards for Nine Metal Fabrication and Finishing Source Categories AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing national emission standards for control of hazardous air pollutants
(HAP)for nine metal fabrication and finishing area source categories. This rule proposes emission standards in the form of management practices and equipment standards for new and existing operations of dry abrasive blasting, machining, dry grinding and dry polishing with machines, spray painting and other spray coating, and welding operations. These proposed standards reflect EPA's determination regarding the generally achievable control technology
(GACT)and/or management practices for the nine area source categories. DATES: Comments must be received on or before May 5, 2008, unless a public hearing is requested by April 14, 2008. If a hearing is requested on this proposed rule, written comments must be received by May 19, 2008. Under the Paperwork Reduction Act, comments on the information collection provisions must be received by OMB on or before May 5, 2008. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2006-0306, by one of the following methods: • *http://www.regulations.gov* : Follow the on-line instructions for submitting comments. • *E-mail: a-and-r-Docket@epa.gov* . • *Fax:*
(202)566-9744. • *Mail:* National Emission Standards for Hazardous Air *Pollutants* : Area Source Standards for Metal Fabrication and Finishing Operations 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-2006-0306. 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 *http://www.regulations.gov* or e-mail. The *http://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 *http://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 *http://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 *http://www.regulations.gov* or in hard copy at the NESHAP for Metal Fabrication and Finishing 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: Dr. Donna Lee Jones, 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)541-5251; *fax number* :
(919)541-3207; *e-mail address* : *jones.donnalee@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 Proposed Area Source Standards A. What is the statutory authority and regulatory approach for the proposed standards? B. What source categories are affected by the proposed standards? C. What are the production operations, emission sources, and available controls? III. Summary of Proposed Standards A. Do the proposed standards apply to my source? B. When must I comply with the proposed standards? C. For what processes is EPA proposing standards? D. What emissions control requirements is EPA proposing? E. What are the initial compliance provisions? F. What are the continuous compliance requirements? G. What are the notification, recordkeeping, and reporting requirements? IV. Rationale for This Proposed Rule A. How did we select the source category? B. How did we select the affected sources? C. How did we determine the regulated processes? D. How was GACT determined? E. How did we select the compliance requirements? F. How did we decide to exempt this area source category from 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 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 categories and entities potentially affected by this proposed action are shown in the table below. This proposed rule applies only to facilities that are an area source of the compounds of cadmium, chromium, lead, manganese, and nickel, or an area source of volatile organic HAP (VOHAP) from spray painting operations, and which perform metal fabrication or finishing operations in one of the following nine source categories:
(1)Electrical and Electronic Equipment Finishing Operations;
(2)Fabricated Metal Products;
(3)Fabricated Plate Work (Boiler Shops);
(4)Fabricated Structural Metal Manufacturing;
(5)Heating Equipment, except Electric;
(6)Industrial Machinery and Equipment: Finishing Operations;
(7)Iron and Steel Forging;
(8)Primary Metal Products Manufacturing; and
(9)Valves and Pipe Fittings. Facilities affected by this proposed rule are not subject to the miscellaneous coating requirements in 40 CFR part 63, subpart HHHHHH, “National Emission Standards for Hazardous Air Pollutants: Paint Stripping and Miscellaneous Surface Coating Operations at Area Sources,” for their affected source(s) that are subject to the requirements of this proposed rule. There potentially may be other sources at the facility not subject to the requirements of this proposed rule that are instead subject to subpart HHHHHH of this part. Metal fabrication and finishing category NAICS Codes 1 Examples of Regulated Entities Electrical and Electronics Equipment Finishing Operations 335999 Establishments primarily engaged in manufacturing motors and generators and electrical machinery, equipment, and supplies, not elsewhere classified. The electrical machinery equipment and supplies industry sector includes facilities primarily engaged in high energy particle acceleration systems and equipment, electronic simulators, appliance and extension cords, bells and chimes, insect traps, and other electrical equipment and supplies, not elsewhere classified. The Motors and Generators Manufacturing industry sector includes those establishments primarily engaged in manufacturing electric motors (except engine starting motors) and power generators; motor generator sets; railway motors and control equipment; and motors, generators and control equipment for gasoline, electric, and oil-electric buses and trucks. Fabricated Metal Products 332117 Establishments primarily engaged in manufacturing fabricated metal products, such as fire or burglary resistive steel safes and vaults and similar fire or burglary resistive products; and collapsible tubes of thin flexible metal. Also included are establishments primarily engaged in manufacturing powder metallurgy products, metal boxes; metal ladders; metal household articles, such as ice cream freezers and ironing boards; and other fabricated metal products not elsewhere classified. Fabricated Plate Work (Boiler Shops) 332313, 332410, 332420 Establishments primarily engaged in manufacturing power and marine boilers, pressure and nonpressure tanks, processing and storage vessels, heat exchangers, weldments and similar products. Fabricated Structural Metal Manufacturing 332312 Establishments primarily engaged in fabricating iron and steel or other metal for structural purposes, such as bridges, buildings, and sections for ships, boats, and barges. Heating Equipment, except Electric 333414 Establishments primarily engaged in manufacturing heating equipment, except electric and warm air furnaces, including gas, oil, and stoker coal fired equipment for the automatic utilization of gaseous, liquid, and solid fuels. Typical products produced in this source category include low-pressure heating (steam or hot water) boilers, fireplace inserts, domestic (steam or hot water) furnaces, domestic gas burners, gas room heaters, gas infrared heating units, combination gas-oil burners, oil or gas swimming pool heaters, heating apparatus (except electric or warm air), kerosene space heaters, gas fireplace logs, domestic and industrial oil burners, radiators (except electric), galvanized iron nonferrous metal range boilers, room heaters (except electric), coke and gas burning salamanders, liquid or gas solar energy collectors, solar heaters, space heaters (except electric), mechanical (domestic and industrial) stokers, wood and coal-burning stoves, domestic unit heaters (except electric), and wall heaters (except electric). Industrial Machinery and Equipment: Finishing Operations 333120, 333132, 333911 Establishments primarily engaged in construction machinery manufacturing, oil and gas field machinery manufacturing, and pumps and pumping equipment manufacturing. Finishing operations include the collection of all operations associated with the surface coating of industrial machinery and equipment. The construction machinery manufacturing industry sector includes establishments primarily engaged in manufacturing heavy machinery and equipment of types used primarily by the construction industries, such as bulldozers; concrete mixers; cranes, except industrial plan overhead and truck-type cranes; dredging machinery; pavers; and power shovels. Also included in this industry are establishments primarily engaged in manufacturing forestry equipment and certain specialized equipment, not elsewhere classified, similar to that used by the construction industries, such as elevating platforms, ship cranes and capstans, aerial work platforms, and automobile wrecker hoists. The oil and gas field machinery manufacturing industry sector includes establishments primarily engaged in manufacturing machinery and equipment for use in oil and gas field or for drilling water wells, including portable drilling rigs. The pumps and pumping equipment industry sector includes establishments primarily engaged in manufacturing pumps and pumping equipment for general industrial, commercial, or household use, except fluid power pumps and motors. This category includes establishments primarily engaged in manufacturing domestic water and sump pumps. Iron and Steel Forging 33211 Establishments primarily engaged in the forging manufacturing process, where purchased iron and steel metal is pressed, pounded or squeezed under great pressure into high strength parts known as forgings. The process is usually performed hot by preheating the metal to a desired temperature before it is worked. The forging process is different from the casting and foundry processes, as metal used to make forged parts is never melted and poured. Primary Metals Products Manufacturing 332618 Establishments primarily engaged in manufacturing products such as fabricated wire products (except springs) made from purchased wire. These facilities also manufacture steel balls; nonferrous metal brads and nails; nonferrous metal spikes, staples, and tacks; and other primary metals products not elsewhere classified. Valves and Pipe Fittings 332919 Establishments primarily engaged in manufacturing metal valves and pipe fittings; flanges; unions, with the exception of purchased pipes; and other valves and pipe fittings not elsewhere classified. 1 North American Industry Classification System. This table is not intended to be exhaustive, but rather provide 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 can refer to the descriptions in section (II)(B) below. For descriptions of the North American Industry Classification System (NAICS) codes, you can view information on the U.S. Census site at *http://www.census.gov/epcd/ec97brdg* . 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 *http://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-2006-0306. 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 April 14, 2008, we will hold a public hearing on April 18, 2008. 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 Proposed Area Source Standards A. What is the statutory authority and regulatory approach for the proposed standards? Section 112(d) of the CAA requires us to establish national emission standards for hazardous air pollutants (NESHAP) for both major and area sources of 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 HAP which, as the result of emissions from area sources, pose the greatest threat to public health in the largest number of urban areas. EPA implemented this provision in 1999 in the Integrated Urban Air Toxics Strategy (64 FR 38715, July 19, 1999). Specifically, in the Strategy, EPA identified 30 HAP that pose the greatest potential health threat in urban areas, and these HAP are referred to as the “30 urban HAP.” Section 112(c)(3) requires EPA to list sufficient categories or subcategories of area sources to ensure that area sources representing 90 percent of the emissions of the 30 urban HAP are subject to regulation. We implemented 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. Under CAA section 112(d)(5), we may elect to promulgate standards or requirements for area sources “which provide for the use of GACT or management practices by such sources to reduce emissions of hazardous air pollutants.” Additional information on GACT is found in the Senate report on the legislation (Senate Report Number 101-228, December 20, 1989), which describes GACT as: * * * 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 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. We are proposing these national emission standards in response to a court-ordered deadline that requires EPA to issue standards for 11 source categories listed pursuant to section 112(c)(3) and
(k)by June 15, 2008 ( *Sierra Club* v. *Johnson* , no. 01-1537, D.D.C., March 2006). We have already issued regulations addressing one of the 11 area source categories. See regulations for Wood Preserving ( **Federal Register** , 72 (135), July 16, 2007.) Other rulemakings will include standards for the remaining source categories that are due in June 2008. B. What source categories are affected by these proposed standards? These proposed standards would affect any facility that performs metal fabrication or finishing operations in one of the following nine metal fabrication and finishing area source categories:
(1)Electrical and Electronic Equipment Finishing Operations;
(2)Fabricated Metal Products;
(3)Fabricated Plate Work (Boiler Shops);
(4)Fabricated Structural Metal Manufacturing;
(5)Heating Equipment, except Electric;
(6)Industrial Machinery and Equipment: Finishing Operations;
(7)Iron and Steel Forging;
(8)Primary Metal Products Manufacturing; and
(9)Valves and Pipe Fittings. Throughout this proposed rule, we refer to the nine metal fabrication and finishing source categories collectively as “metal fabrication or finishing operations.” The following are descriptions of the nine metal fabrication and finishing source categories: *Electrical and Electronic Equipment Finishing Operations:* This category includes establishments primarily engaged in manufacturing motors and generators and electrical machinery, equipment, and supplies, not elsewhere classified, and includes facilities primarily engaged in high energy particle acceleration systems and equipment, electronic simulators, appliance and extension cords, bells and chimes, insect traps, and other electrical equipment and supplies not elsewhere classified. This category also includes those establishments primarily engaged in manufacturing electric motors (except engine starting motors) and power generators; motor generator sets; railway motors and control equipment; and motors, generators and control equipment for gasoline, electric, and oil-electric buses and trucks. *Fabricated Metal Products, Not Elsewhere Classified:* This category includes establishments primarily engaged in manufacturing fabricated metal products, such as fire or burglary resistive steel safes and vaults and similar fire or burglary resistive products; and collapsible tubes of thin flexible metal. Also included are establishments primarily engaged in manufacturing powder metallurgy products, metal boxes; metal ladders; metal household articles, such as ice cream freezers and ironing boards; and other fabricated metal products not elsewhere classified. *Fabricated Plate Work (Boiler Shops):* This category includes establishments primarily engaged in manufacturing power and marine boilers, pressure and nonpressure tanks, processing and storage vessels, heat exchangers, weldments and similar products. *Fabricated Structural Metal Manufacturing:* This category includes establishments primarily engaged in fabricating iron and steel or other metal for structural purposes, such as bridges, buildings, and sections for ships, boats, and barges. *Heating Equipment, except Electric:* This category includes establishments primarily engaged in manufacturing heating equipment, except electric and warm air furnaces, including gas, oil, and stoker coal fired equipment for the automatic utilization of gaseous, liquid, and solid fuels. Typical products produced in this source category include low-pressure heating (steam or hot water) boilers, fireplace inserts, domestic (steam or hot water) furnaces, domestic gas burners, gas room heaters, gas infrared heating units, combination gas-oil burners, oil or gas swimming pool heaters, heating apparatus (except electric or warm air), kerosene space heaters, gas fireplace logs, domestic and industrial oil burners, radiators (except electric), galvanized iron nonferrous metal range boilers, room heaters (except electric), coke and gas burning salamanders, liquid or gas solar energy collectors, solar heaters, space heaters (except electric), mechanical (domestic and industrial) stokers, wood and coal-burning stoves, domestic unit heaters (except electric), and wall heaters (except electric). *Industrial Machinery and Equipment Finishing Operations:* This category includes establishments primarily engaged in construction machinery manufacturing, oil and gas field machinery manufacturing, and pumps and pumping equipment manufacturing. Finishing operations include the collection of all operations associated with the surface coating of industrial machinery and equipment. This category includes establishments primarily engaged in manufacturing heavy machinery and equipment of types used primarily by the construction industries, such as bulldozers; concrete mixers; cranes, except industrial plant overhead and truck-type cranes; dredging machinery; pavers; and power shovels. Also included in this industry are establishments primarily engaged in manufacturing forestry equipment and certain specialized equipment, not elsewhere classified, similar to that used by the construction industries, such as elevating platforms, ship cranes and capstans, aerial work platforms, and automobile wrecker hoists. This category also includes establishments primarily engaged in manufacturing machinery and equipment for use in oil and gas fields or for drilling water wells, including portable drilling rigs. This category includes establishments primarily engaged in manufacturing pumps and pumping equipment for general industrial, commercial, or household use, except fluid power pumps and motors, and establishments primarily engaged in manufacturing domestic water and sump pumps. *Iron and Steel Forging:* This category includes establishments primarily engaged in the forging manufacturing process, where purchased iron and steel metal is pressed, pounded or squeezed under great pressure into high strength parts known as forgings. The process is usually performed hot by preheating the metal to a desired temperature before it is worked. The forging process is different from the casting and foundry processes, as metal used to make forged parts is never melted and poured. *Primary Metal Products Manufacturing:* This source category includes establishments primarily engaged in manufacturing products such as fabricated wire products (except springs) made from purchased wire. These facilities also manufacture steel balls; nonferrous metal brads and nails; nonferrous metal spikes, staples, and tacks; and other primary metals products not elsewhere classified. *Valves and Pipe Fittings:* This source category includes establishments primarily engaged in manufacturing metal valves and pipe fittings, flanges, and unions, with the exception of from purchased pipes; and other valves and pipe fitting products not elsewhere classified. We added the nine metal fabrication and finishing source categories to the Integrated Urban Air Toxics Strategy Area Source Category List on November 22, 2002 (67 FR 70427). The inclusion of these source categories to the section 112(c)(3) area source category list is based on 1990 emissions data, as EPA used 1990 as the baseline year for that listing. The nine metal fabrication and finishing source categories were listed for regulation based on emissions of compounds of cadmium, chromium, lead, manganese, and nickel in the 1990 inventory, hereafter referred to as “metal fabrication and finishing metal HAP” (MFHAP). Four of the metal fabrication and finishing source categories were also listed for emissions of the organic HAP trichloroethylene (TCE). 1 Chlorinated solvents such as TCE are used as degreasers in these metal fabrication and finishing source categories. We subsequently discovered that the 1990 emissions data for TCE was for metal fabrication and finishing facilities that used TCE in degreasing operations, which are not part of this source category. Rather, these emission units at both major and area sources are subject to standards for halogenated solvent cleaning under 40 CFR part 63, subpart T. Consequently, we are not proposing standards for TCE from metal fabrication and finishing facilities. The four metal fabrication and finishing source categories listed for TCE emissions remain listed source categories pursuant to section 112(c)(3) of this part. Therefore, we are clarifying that we do not need these four source categories to meet the section 112(c)(3) 90 percent requirement regarding area source emissions of TCE. 1 These four source categories were Electrical and Electronic Equipment Finishing Operations; Fabricated Metal Products; Primary Metal Products Manufacturing; and Valves and Pipe Fittings. Based on 2002 U.S. Census data and a survey of the industry that we conducted in 2006, we estimate that 5,800 metal fabrication and finishing area source facilities are currently operating in the U.S. Our analyses of 2002 U.S. Census data also indicate that more than 90 percent of the metal fabrication and finishing area source categories is comprised of small businesses, based on the Small Business Administration definition. A majority of the metal fabrication and finishing area source facilities are estimated to be in urban areas, based on an estimate of 73 percent developed from EPA's 2002 National Emission Inventory (NEI). 2 2 These urban areas are defined to be the urban 1 and urban 2 areas that formed the basis of the listing decisions under 112(c)(3) and (k). Facilities affected by this proposed rule are not subject to the miscellaneous coating requirements in 40 CFR part 63, subpart HHHHHH, “National Emission Standards for Hazardous Air Pollutants: Paint Stripping and Miscellaneous Surface Coating Operations at Area Sources,” for their affected source(s) that are subject to the requirements of this proposed rule. There potentially may be other sources at the facility not subject to the requirements of this proposed rule that are instead subject to subpart HHHHHH of this part. C. What are the production operations, emission sources, and available controls? While these nine source categories produce a wide variety of products, they perform very similar fabrication and finishing operations to create them. There are five general production operations common to metal fabrication and finishing source categories that can emit MFHAP. These five production operations are:
(1)Dry abrasive blasting;
(2)dry grinding and dry polishing with machines;
(3)machining;
(4)spray painting and coating; and
(5)welding. As typical within any industry, there is variation in operations between facilities. Also, all facilities do not necessarily employ all five production areas. Information acquired from an EPA survey of 166 facilities showed that for the area sources in the source categories of interest, 39 percent perform dry abrasive blasting, 59 percent perform metal fabrication and finishing with machines, 60 percent perform painting or coating of some kind (that includes but is not limited to spray painting or spray coating), and 65 percent perform welding. More detailed analyses are available in the docket, including estimated percentages of the number of facilities in each category performing each operation. Another metal fabrication and finishing operation that can emit MFHAP is plating. This operation was noted to be performed by some of the facilities in the nine metal fabrication and finishing source categories, but is not regulated by this proposed rule. Plating operations are not regulated by this proposed rule because they are regulated elsewhere, as follows: Chromium electroplating tanks are subject to the Chromium Electroplating NESHAP (40 CFR 63, subpart N), while other plating operations at area sources are subject to the Plating and Polishing Area Source Rule (40 CFR part 63, subpart WWWWWW) which will be promulgated by June 15, 2008. 1. Metal Fabrication and Finishing Operations The nine Metal Fabrication and Finishing source categories produce a wide variety of products using five general production operations that can emit MFHAP:
(1)Dry abrasive blasting;
(2)dry grinding and dry polishing with machines;
(3)machining;
(4)spray painting and coating; and
(5)welding. The following is a brief description of each of these five fabrication and finishing operations regulated by this proposed rule. *Dry Abrasive Blasting Operations.* This metal fabrication and finishing operation (also referred to in the industry as sand blasting, shot blasting, and shot peening) is used to clean or prepare a surface by forcibly propelling abrasive material against it. Commonly used abrasives include silica sand, glass beads, aluminum oxide, slag, garnet, steel shot, walnut shells, as well as other materials. Common applications of dry abrasive blasting include surface preparation for painting or coating; burr removal after machining, grinding, or welding; matte surface finishing; removal of flash from molded objects. Two primary aspects differentiate the various types of abrasive blasting: The method of abrasive propulsion and the type of abrasive used. There are three primary methods of propelling the abrasive: Air pressure, using compressed air to propel the abrasive; water pressure, using air or water pressure to propel a wet abrasive slurry; or centrifugal wheels, which use a rotating impeller to mechanically propel the abrasive. Abrasive blasting covers numerous applications under widely varying conditions. Blasting is also performed outdoors with a portable apparatus or indoors within specially constructed cabinets or enclosures/chambers, either manually, or as part of an automated process line. Because the applications of abrasive blasting are widely varied, there is a similarly wide variety of abrasive blasting equipment available. Dry abrasive blasting equipment consists of the following general types of systems, listed from small to large: Portable blasters, blast cabinets or “glove boxes”, blast chambers which can be 3 or 4-sided structures, and “bulk” blasters that are totally enclosed and vented to a filtration device to collect and recycle the blast material. Shot peening is a common type of dry abrasive blasting that is a surface treatment used to increase the fatigue life of metal parts. In shot peening, a higher pressure is used to focus the abrasive on a localized area as opposed to general abrasive blasting that may be directed over a larger surface area. Shot peening generally refers to abrasive blasting with metallic or steel pellets, like BB shot. Shot peening is almost always performed in a contained area so that the pellets can be recovered and reused. Similarly, blasting performed with sand other media is also often performed in a contained area so that the media can be recovered and reused. *Dry Grinding and Dry Polishing Operations.* These metal fabrication and finishing operations are very similar and vary only as to their timing in the fabrication and extent of abrasion. Not all parts are polished but most are ground. Grinding is performed on a work piece prior to fabrication or finishing operations to remove undesirable material from the surface or to remove burrs or sharp edges. Grinding is done using belts, disks, or wheels consisting of or covered with various abrasives, e.g., silica, alumina, silicon carbide, garnet, alundum, or emery. Grinding may be performed dry or may use lubricants or coolants such as water or water-based mixtures, solutions, or emulsions containing cutting oils, soaps, detergents, wetting agents, or proprietary compounds. Polishing generally follows grinding. The purpose of the polishing operation is to remove any remaining metal and to prepare the surface for more refined finishing procedures. Burrs on castings or stampings may also be removed by polishing. Polishing is performed using hard-faced wheels constructed of muslin, canvas, felt or leather. Abrasives are applied to the wheels with synthetic adhesives or cements, typically silicate-base cements. The types of abrasives that are used in polishing include both natural and artificial abrasives. Lubricants including oil, grease, tallow, and special bar lubricants are used to prevent gouging and tearing when a fine polished surface is required and also to minimize frictional heat. Polishing may also be performed by hand without machines; however, no emissions occur from hand polishing. *Machining Operations.* This metal fabrication and finishing operation includes activities such as turning, milling, drilling, boring, tapping, planing, broaching, sawing, cutting, shaving, shearing, threading, reaming, shaping, slotting, hobbing, and chamfering, where stock is removed from a work piece as chips by a machine that forces a cutting piece against a work piece. Shearing operations cut materials into a desired shape and size, while forming operations bend or conform materials into specific shapes. Cutting and shearing operations include punching, piercing, blanking, cutoff, parting, shearing and trimming. Forming operations include bending, forming, extruding, drawing, rolling, spinning, coining, and forging the metal. Machining is usually totally enclosed, where the enclosure is part of the operating equipment. Many of these machining operations use lubricants or liquid coolants either alone or in conjunction with enclosures. *Painting Operations.* Paints and coatings (hereafter called “paints”) are applied to metal fabrication and finishing products for surface protection, aesthetics, or both. Painting or coating (hereafter called “painting”) is usually performed using a spray gun in a spray booth or with portable spray equipment. Paints may also be applied via dip tanks. The coated parts then pass through an open (flashoff) area where additional volatiles evaporate from the paint. The coated parts may pass through a drying/curing oven, or are allowed to air dry, where the remaining volatiles are evaporated. Spray-applied painting operations include any hand-held device that creates an atomized mist of paint and deposits the paint on a substrate. For the purposes of this rule, spray-painting does not include thermal spray operations, also known as metallizing, flame spray, plasma arc spray, and electric arc spray, among other names, in which solid metallic or non-metallic material is heated to a molten or semi-molten state and propelled to the work piece or substrate by compressed air or other gas, where a bond is produced upon impact. Thermal spraying operations at area sources are subject to the Plating and Polishing Area Source NESHAP, subpart WWWWWW of this part. Spray gun cleaning may be done by hand cleaning parts of the disassembled gun in a container of solvent, by flushing solvent through the gun without atomizing the solvent and paint residue, or by using a fully enclosed spray gun washer. A combination of non-atomizing methods may also be used. A gun washer consists of a solvent reservoir and a covered enclosure that dispenses solvent for gun cleaning. The enclosure may also hold the gun for automated gun cleaning. During gun cleaning in a gun washer, the cleaning solvent is dispensed from the reservoir and sprayed through the gun while it is open. *Welding Operations.* This metal fabrication and finishing operation joins two metal parts by melting the parts at the joint and filling the space with molten metal. The most frequently used method for generating heat is obtained either from an electric arc or a gas-oxygen flame. The type of welding most commonly used in the metal fabrication and finishing source categories is thought to be electric arc welding. Electric arc welding includes many different variations that involve various types of electrodes, fluxes, shielding gases, and types of equipment. Electric arc welding can be divided into that which uses consumable electrodes vs. nonconsumable electrodes. In electric arc welding, a flow of electricity across the gap from the tip of the welding electrode to the base metal creates the heat needed for melting and joining the metal parts. The electric current melts both the electrode and the base metal at the joint to form a molten pool, which solidifies upon cooling. Consumable welding rods are used when extra metal is needed as a filler for the joint to make a complete bond. The consumable rods must be close in composition to the base metals, and can vary with each application. An externally supplied gas (argon, helium, or carbon dioxide) can be used to shield the arc. 2. Metal Fabrication and Finishing HAP Emission Sources All five of the metal fabrication and finishing operations described above can emit MFHAP. The MFHAP that can be emitted from the metal fabrication and finishing operations are in the form of particulate matter
(PM)produced from the material being fabricated, PM emitted from the use of consumable welding rods, and MFHAP used to color paints (as pigments). In addition, there are VOHAP emitted from painting operations, where the VOHAP are used as vehicles and solvents for the paints. Details on the HAP emissions from each of the five potential HAP-emitting operations follow below. *Dry Abrasive Blasting Emissions.* The emissions from dry abrasive blasting are predominantly inert PM resulting from breakdown of the blast material which is composed of silica sand, glass beads, aluminum oxide, slag, garnet, steel shot, walnut shells, and other materials. Few if any blast materials contain MFHAP, therefore any MFHAP that is emitted from blasting would originate from the part or product being blasted. Occasionally the blasted part or product may be painted, in which case the PM will contain additional MFHAP if present in the pigments in the paint. Painted substrates are uncommon in the metal fabrication and finishing industries, since these industries primarily produce new products rather than recondition old ones. The blasted substrates typically include metals such as: Cadmium, chromium (primarily in stainless steel), iron, lead, magnesium, manganese (in both mild and stainless steels), mercury, molybdenum, nickel (in stainless steel), selenium, tin, vanadium, and zinc (in galvanized steel). All five MFHAP are potential components of blasting substrates. *Dry Grinding and Dry Polishing Emissions.* Some metal fabrication and finishing machine operations, such as grinding and polishing, are often times dry operations which can emit PM that can contain MFHAP. Polishing by hand without the use of machines usually emits little or no PM or MFHAP due to the low level of abrasion that potentially can be induced by the worker's hands. All the PM or MFHAP in grinding and polishing is produced from the work piece itself. Thus, the composition of the PM and presence of MFHAP is dependent upon the metal being worked. As above for blasting, the metal fabrication and finishing substrates typically include metals such as: Cadmium, chromium (primarily in stainless steel), iron, lead, magnesium, manganese (in both mild and stainless steels), mercury, molybdenum, nickel (in stainless steel), selenium, tin, vanadium, and zinc (in galvanized steel). All five MFHAP are potential components of metal fabrication and finishing substrates and therefore, are also potential emissions from operations of dry grinding and dry polishing with machines. *Machining Emissions.* Most of the machining operations in the metal fabrication and finishing industry are totally enclosed, where the enclosure is part of the equipment. Many of these operations use lubricants or liquid coolants, either alone or in conjunction with enclosures. Because any emissions generated by these machining operations, which would be in the form of PM, are captured or entrained in the liquid, little or no emissions are generated. Any MFHAP that is released from machining would originate from the part or product being machined. *Spray Painting Emissions.* The sources of HAP emissions from spray painting operations are the metal pigments and solvents that are in the paints. A substantial fraction of paint that is atomized does not reach the part and becomes what is termed “overspray” and generates HAP emissions. All five MFHAP are potential components of paint pigments that are used to provide color to the paint. The MFHAP are emitted when the paints are atomized during spray application. The proposed spray painting requirements of this proposed rule would only apply to those spray painting operations that spray-apply paints that contain MFHAP. Paints are considered to contain MFHAP if they contain any individual MFHAP at a concentration greater than 0.1 percent by mass. For the purpose of determining whether paints contain MFHAP, facilities would be able to use formulation data provided by the manufacturer or supplier, such as the material safety data sheet, as long as it represents each MFHAP compound in the paint that is present at 0.1 percent by mass or more for Occupational Safety and Health Administration (OSHA)-defined carcinogens and at 1.0 percent by mass or more for other MFHAP compounds. Paint solvents are used as vehicles for the paint pigments. These solvents include VOHAP such as xylenes, toluene, phenol, cresols/cresylic acid, glycol ethers (including ethylene glycol monobutyl ether), styrene, methyl isobutyl ketone, and ethyl benzene. Paints used in spray painting are thinned with solvents so that the paints are fluid enough to be able to be delivered onto the parts and products via narrow spray gun nozzles. The solvents are considered to be completely volatilized during spray application of the paint and during curing or drying. Most solvents contain HAP. The solvents may also consist of volatile organic compound
(VOC)emissions which contribute to ozone formation, an EPA-regulated criteria pollutant. The remaining HAP emissions are primarily from cleaning operations, such as cleaning of spray guns. The HAP emissions from both the cleaning solvent and the paint removed from the gun can be emitted during cleaning. Solvents used for equipment cleaning may contain the same HAP as the paints they remove. The HAP Emissions from gun cleaning are minimized when cleaning is performed in a manner such that an atomized mist or spray of gun cleaning solvent and paint residue is not created outside of a container that collects used gun cleaning solvent. Mixing and storage are other sources of HAP emissions. The HAP emissions can occur from displacement of HAP-laden air in containers used to store HAP solvents or to mix paints containing HAP solvents. The displacement of vapor-laden air also can be caused by changes in temperature or barometric pressure, or by agitation during mixing. *Welding Emissions.* The type of welding most commonly used in the metal fabrication and finishing source categories is thought to be electric arc welding. This is also the type of welding that can produce the most MFHAP emissions, since a consumable electrode is used. Emissions from welding are in the form of a fume, which is defined to be particles that are small enough to be airborne for extended periods of time and are visible to the human eye. The size of particles in welding fume is highly variable with an average size around 1 micrometer (μm), corresponding to what is commonly called the “fume” size range. Welding fumes have a bimodal distribution, with maximum concentrations in “coarse” (approximately 1.5 μm) and “fine” (0.52 μm) particle size ranges. Welding fumes are a product of the base metal being welded, the consumable welding electrode or wire, the shielding gas, and any surface coatings or contaminants on the base metal. As much as 95 percent of the welding fume is thought to originate from the melting of the electrode or wire consumable. Welding fume constituents may include silica and fluorides, used to aid the welding operation, and HAP metals such as antimony, arsenic, beryllium, cobalt, mercury, and selenium, in addition to the five MFHAP: Cadmium, chromium, lead, manganese, and nickel. As noted above for dry abrasive blasting, chromium and nickel are found primarily in stainless steel, whereas manganese is found in both mild and stainless steels. Among the electric arc welding operations that use a consumable electrode, shielded metal arc welding
(SMAW)is used in more than 50 percent of welding. SMAW also was the first welding type to use a consumable electrode and suits most general purpose welding applications. SMAW, also called manual metal arc welding
(MMAW)or “stick” possibly because it uses replaceable welding electrode rods that look like sticks, has a high fume formation rate as compared to other welding operations. The advantages of SMAW welding include its simplicity, low cost, portability, and the fact that a shielding gas is not needed. One restriction of SMAW is that since it uses metal rods that must be replaced, it is slower than the welding operations which use continuous electrodes. Another type of welding that uses a consumable electrode and has a high fume formation rate is fluxed-core arc welding (FCAW). High fume formation occurs because the weld material is a liquid or “flux” and not a solid wire, and therefore is more volatile. Gas metal arc welding (GMAW), originally called metal inert gas
(MIG)welding because it used an inert gas for shielding, has a moderate fume formation rate as compared to other welding operations. The advantages of GMAW include its ability to be operated in semiautomatic or automatic modes. It is the only consumable welding type that can weld all commercially important metals, such as carbon steel, high-strength low alloy steel, stainless steel, nickel alloys, titanium, aluminum, and copper. With GMAW, a weld can be performed in all positions with the proper choice of electrode, shielding gas, and welding variables. Compared to SMAW, the rate of deposition of the electrode material and therefore welding rate is higher than with GMAW. The disadvantage is that the equipment for GMAW is more complex, more expensive, and less portable than SMAW. Another type of welding that uses a consumable electrode and has a low fume formation rate is submerged arc welding (SAW). In this type of welding, the welding rod is not exposed to the atmosphere which lowers the potential for emissions. Two welding operations that use non-consumable electrodes are gas tungsten arc welding
(GTAW)that is also called tungsten inert gas (TIG), and plasma arc welding (PAW). Because consumable electrodes are not used, this type of welding has low or no emissions. The choice of welding method is determined by many variables that include but are not limited to substrate material and shape; type of weld needed; skill of welder; and amount of welding to be done, therefore, a change from one type of welding to another is not always possible. The shape of the material is another variable that can affect fume formation rate. It also has been found that when the angle of welding is closer to 90°, lower fume formation occurs. If the shape of the part to be welded prevents re-positioning the welding equipment, this pollution prevention technique also cannot be used. In terms of welding rod feed rate, it has been found that the higher the wire feed rate the higher the fume formation rate. Also, a low fume welding rod that reduces fume by 30 percent as compared to other available products has been reported as recently available for use with FCAW. Minor effects to reduce fume formation rate have also been attributed to the speed that the welding torch moves along the weld, i.e., the “travel speed.” Carrier or shielding gas type and flow rate are also variables that have been found to affect welding fume formation rate. Substitution of argon gas reduces the fume formation rate. A reduction in fume of approximately 40 percent has been reported if argon is replaced as the shielding gas. The shield gas flowrate also can be optimized, with 35 cubic feet per hour the reported optimum rate. This rate is in the middle of the usual operating range and is thought to be low enough to minimize turbulence but high enough to protect the worker. Voltage and current play a key role in the welding fume formation rate. While low voltage and/or current is known to lower the fume formation rate, the use of a pulsed current has been found to lower fume formation by up to 90 percent of the rate with straight current for some types of welding operations. The reduction in welding fume with a pulsed current is due to the change in metal electrode transfer mode from globular to spray, that results from moderately increasing the voltage and delivering a pulsed rather than steady current. There is also a voltage window in which the fume rate reduction occurs, since with too high voltage, a shift from spray to stream mode occurs along with a subsequent increase in emissions. Pulsed current is only successful if used with GMAW, which is itself a pollution prevention technique since it has one of the lowest fume formation rates of welding performed with consumable electrodes. Welding emissions have been found to be reduced when automation is used. Since automated welding is faster and more efficient than manual welding, total emissions are lower even though the overall fume formation rate of the automated welding remains the same as with manual welding. Emissions of MFHAP in welding fume are also subject to regulations by the OSHA, a U.S. government agency that develops work place emission standards. The sole goal of OSHA regulations is to protect the worker from being exposed to high concentrations of pollutants, such as MFAP. The OSHA regulations set standards for MFHAP concentration as measured in the breathing zone of the workers, as a time-weighted average over the time period of a typical work shift (usually 6 hours or more). The OSHA limits for MFHAP are as follows: Welding MFHAP OSHA limit (micrograms per cubic meter) cadmium fume 5 chromium, hexavalent 5 chromium, total metal 1,000 lead 50 manganese 5,000 nickel 1,000 The OSHA hexavalent chromium exposure limit was reduced in 2006 from 52 to 5 micrograms per cubic meter (μg/m 3 ). The American Conference of Government Industrial Hygienists, an association of occupational health professionals, recommends a worker exposure limit for “total welding fume” of 5,000 μg/m 3 . 3. Metal Fabrication and Finishing HAP Emission Controls A variety of methods is used to control emissions from the metal fabrication and finishing operations. Some methods are designed to reduce emissions through pollution prevention or management practices, and other methods involve capturing emissions and exhausting them to an add-on emission control device. The most widely-used methods of control employed by the metal fabrication and finishing operations are discussed below. *Dry Abrasive Blasting Controls.* Small self-contained “glove box” dry abrasive blasting operations are used for small parts and typically have no vents to the atmosphere, thus no emissions. These devices are considered controlled operations as typically operated. When using glove boxes, the worker places their hands in openings or gloves that extend into the box and enables the worker to hold the objects as they are being blasted without allowing air and blast material to escape the box. Because of the proximity of the worker to the glove box and the blasting operation, no abrasive material can be allowed to be emitted. Larger dry abrasive blasting operations are performed in enclosures and are typically equipped with cartridge filters or other external add-on control devices that collect degraded or “used” blast material and particles removed from the parts or products. These control systems, which consist of enclosures and filters, can achieve at least 95 percent control of PM, as a surrogate for MFHAP, if operated according to the manufacturer's specifications. Used blast material is recycled via screening, sieving, or other methods to remove degraded media and return the blast material to its original condition. Significant cost savings are realized through recycling of the blast material. Some dry abrasive blasting operations are not completely enclosed, or are performed outdoors. Emissions from these operations are controlled or reduced via partial enclosures and also the use of management practices. These practices include good choice of blast media which is less likely to break down into fine PM; avoiding re-use of blast media, or filtration of blast media to remove broken particles; and avoiding blasting outside during periods of high winds. *Dry Grinding and Dry Polishing with Machines Controls.* These machine operations emit significant metal PM if uncontrolled, therefore, these operations, if not totally enclosed, use control systems to control the PM emitted. The control systems are composed of local capture devices with cartridge, fabric, or high-efficiency particulate air
(HEPA)filters as control devices. These control systems are known to achieve 85 percent overall control of PM, as a surrogate for MFHAP, considering the efficiency of both the capture and control devices. The large amount of fine PM generated during these operations would make the work environment unbearable for the workers if not controlled, hence constant PM control is standard industry practice and an integral part of all dry grinding and dry polishing with machine operations at metal fabrication and finishing facilities. *Machining Controls.* The MFHAP emitted by machining operations consist of large particles or metal shavings that are so large they immediately fall to the floor. The machines used today to perform precision cutting and forming are totally enclosed except for doors that open to allow placement of the part to be machined. The doors are closed before the machining begins; therefore, no MFHAP or PM is emitted into the workplace during machining operations. Some machining operations also use lubricants and cutting oils to keep the equipment cooled and working properly and, therefore, concurrently entrain any fine particles that are generated. These “wet” machining operations also do not generate any MFHAP or PM emissions during operation. This industry has evolved since 1990, where machining operations were open and a large source of PM and MFHAP, to the current industry practice of totally enclosing the machining operations. *Spray Painting Controls.* There are three primary means of controlling emissions from painting operations: Reduction of overspray; capture of overspray with a spray booth and control of the MFHAP by filtration or a water scrubbing system; and changes to paint composition to reduce solvent and VOHAP content. Reduction of overspray can have a significant effect on emissions of both MFHAP and VOHAP. The fraction of applied paint that becomes overspray depends on many variables, but two of the most important are the type of equipment and the skill of the painter. High velocity low pressure spray guns or other high-efficiency technologies, such as airless spray guns or electrostatic technologies, can significantly reduce the amount of overspray, and thus reduce emissions. Worker training is particularly important with these technologies, because they require even experienced painters to learn new techniques. Many types of training programs are available and many facilities perform their own training “in-house.” The best known of the external training programs is the Spray Technique Analysis and Research (STAR®) program study that originated at the University of Northern Iowa Waste Reduction Center and has now been adopted at 37 locations (primarily community colleges) throughout the United States. 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 contained by the spray booth and drawn into the spray booth exhaust system. The large amount of PM generated during paint spraying makes it necessary to control the PM emitted at all times to protect the worker and working environment. If the spray booth has filters, most of the overspray PM and metals are captured by the filters; otherwise, the emissions are exhausted to the atmosphere. Spray booths controlled by fabric filters can reduce PM and MFHAP emissions by 98 percent, if operated properly. Water curtains can also be used for controlling emissions from spray booths. As a result of efforts to reduce the impact of HAP- and VOC-containing paint solvents on the environment, many paint manufacturers have developed lower solvent-content paints, also referred to as “water-based” paints. Water-based paints may have up to 30 percent VOHAP-containing solvent, with the balance of the paint vehicle consisting of water; however, the level of solvent in water-based paints is much less than the previous 80 percent or more VOHAP that is contained in solvent-based paints. As a result of the lower VOHAP solvent content, water-based paints in general have a lower VOHAP content than solvent-based paints. The regulations promulgated to fulfill section 112 of the CAA for major sources had a direct effect on increasing the market availability of lower-HAP and -VOC paints in all market areas, including miscellaneous metal parts, plastic parts, large appliances, autobody refinishing, and architectural and industrial maintenance coatings. Many State air toxics regulations require the use of commonly called “compliant coatings,” where the only paints or coatings allowed to be used in certain areas must contain a solvent content lower than a designated level in order to be “compliant” with the regulation. The use of compliant coatings is a pollution prevention control method. Some regulations which require compliant coatings set one limit for all paints while others require different limits depending on the purpose of the paint. Other regulations permit a weighted averaging of the solvent content of the paints used, where facilities are permitted to use paints with higher solvent contents as long as their use is offset by paints with lower solvent content. This latter method of compliance is considered a more flexible approach that allows facilities to balance their use of solvents to where it is needed most. In addition, some facilities may choose to use add-on controls such as solvent recovery units, thermal incineration, or carbon absorbers to control VOHAP emissions for situations where the solvent content cannot be reduced to a compliant coating level. These add-on controls are known to achieve at least 95 percent control of VOHAP. *Welding Controls.* Many different welding operations are commonly used in the metal fabrication and finishing industry, as discussed above under welding emissions. Consequently, there are many possible means of reducing emissions. Not all control methods are appropriate for all types of welding operations, however, and thus there is no one “best” method to reduce welding fume or PM, as a surrogate for MFHAP. The two primary categories of emission control for welding are fume reduction through pollution prevention and management practices, and capture and control of the welding fume. The primary variable in pollution prevention for welding is the type of welding wire or electrode used. Over 95 percent of welding fume is thought to originate from the filler or electrode material with the remainder coming from the base material. If the wire consists of MFHAP-containing material, such as chromium or nickel, then the emissions of these MFHAP are more likely. Since the weld or wire material must closely match the material being welded in order to be effective, the choice of weld material may not be able to be altered by the facility for some or all of its products. For example, if stainless steel is a required material due to the specifications of the part or product by the customers, the potential for chromium emissions in these operations cannot be prevented. The choice of welding type, which impacts the potential fume formation rate, also provides opportunities for pollution prevention. The type of welding method used at metal fabrication and finishing facilities is determined by many variables that include but are not limited to substrate material and shape; type of weld needed; skill of welder; and amount of welding to be done. Therefore, a change from one type of welding to another is not always possible. Welding which does not use a consumable electrode has a much lower emission potential, as noted above in the “Welding Emissions” discussion. Two common welding operations that use non-consumable electrodes are GTAW, also called TIG, and PAW. Switching from welding that uses a consumable electrode to one of the above operations that does not use a consumable electrode is a form of pollution prevention. Among the welding operations that use a consumable electrode, SMAW, also called MMAW or “stick,” is the most widely used electric arc welding. However, SMAW has a high fume formation rate as compared to other welding operations. Another welding type that also has a high fume formation rate is FCAW. GMAW, also called MIG, has a moderate fume formation rate as compared to other welding operations. The disadvantage of GMAW is that the equipment for GMAW is more complex, more expensive, and less portable than SMAW. Another type of welding that uses consumable electrodes and has a relatively lower fume formation rate is SAW. Switching from welding that has a relatively higher fume formation rate, such as SMAW or FCAW, to one that has a lower rate, such as GMAW or SAW, is a form of pollution prevention. Other welding variables have been determined to have a favorable effect on fume formation rates. Optimizing these variables for the specific task at hand is a form of pollution prevention. These variables include optimized welding rod feed rate, use of low fume welding rods; fast welding torch travel speed; optimized carrier or shielding gas flow rate; substitution of inert shielding gas, such as argon, for carbon dioxide shielding gas; lowering the welding voltage; pulsing the applied current; and the use of automation, i.e., robotics. Note that pulsing the current is only successful if used with GMAW, which is itself a pollution prevention technique since it has one of the lowest fume formation rates for welding performed with consumable electrodes. In addition to the numerous management and pollution prevention practices that reduce welding fume generation, some facilities use capture and control devices to collect welding fume after it is generated. Hoods and other local exhaust techniques are used to collect the welding fume which is then vented to cartridge, fabric, or HEPA filters. Some of these control systems may only partially capture the welding fume. The advantage of using local capture systems as opposed to room ventilation is that it provides the ability to move the control device to different welding stations as needed. Very few facilities in the metal fabrication and finishing source categories use full room ventilation and PM control to reduce welding emissions. This is due to the competing requirements to ventilate the breathing zone of the worker to comply with OSHA regulations and the need to minimize the amount of exhaust air going to ventilation and add-on control devices. The use of control systems is not always possible because the capture systems may affect the air flow pattern around welding operations and, therefore, interfere with the success of the weld. Another difficulty with local exhaust is the need to position and sometimes reposition the capture equipment so as to be most effective during welding operations without causing more fumes to enter the breathing zone of the worker. Fume control welding guns, commonly called fume guns, have been developed where the welding fume is captured by the same device that performs the welding. Mixed success has been reported with these devices because of problems with the ergonomics of using the fume guns. In the EPA survey of metal fabrication and finishing facilities, only 20 percent of facilities with welding stations used controls devices or fume guns. These control systems are known to achieve 85 percent overall PM control efficiency, as a surrogate for MFHAP, considering the efficiency of both the capture and control devices. III. Summary of Proposed Standards A. Do the proposed standards apply to my source? The proposed subpart XXXXXX applies to new or existing affected metal fabrication and finishing area sources in one of the following nine source categories (listed alphabetically) that emit MFHAP:
(1)Electrical and Electronic Equipment Finishing Operations;
(2)Fabricated Metal Products;
(3)Fabricated Plate Work (Boiler Shops);
(4)Fabricated Structural Metal Manufacturing;
(5)Heating Equipment, except Electric;
(6)Industrial Machinery and Equipment: Finishing Operations;
(7)Iron and Steel Forging;
(8)Primary Metal Products Manufacturing; and
(9)Valves and Pipe Fittings. A more detailed description of these source categories can be found in section II(B) above. 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). Facilities affected by this proposed rule are not subject to the miscellaneous coating requirements in 40 CFR part 63, subpart HHHHHH, “National Emission Standards for Hazardous Air Pollutants: Paint Stripping and Miscellaneous Surface Coating Operations at Area Sources,” for their source(s) subject to the requirements of this proposed rule. There potentially may be other sources at the facility not subject to the requirements of this proposed rule that are instead subject to subpart HHHHHH of this part. B. When must I comply with these proposed standards? All existing area source facilities subject to this proposed rule would be required to comply with the rule requirements no later than 2 years after the date of publication of the final rule in the **Federal Register** . C. For what processes is EPA proposing standards? In our research for this proposed rule, we found that there are five general production operations common to the nine metal fabrication and finishing source categories that can emit MFHAP. These five production operations are:
(1)Dry abrasive blasting;
(2)dry grinding and dry polishing with machines;
(3)machining;
(4)spray painting; and
(5)welding. In our review of the available data, we observed significant differences for some of the five metal fabrication and finishing operations. As explained below, as the result of these differences we have further differentiated some of the above five operations. We identify below nine distinct metal fabrication and finishing processes for the purposes of this proposed rule. For dry abrasive blasting operations, we determined that there were two distinct sizes of products being blasted that affected the manner in which the blasting was performed: products more than 8 feet in any dimension, and products equal to or less than 8 feet. For products under 8 feet, we also observed that some of these products were blasted in completely enclosed chambers that did not allow any air or emissions to escape. Therefore, we developed three distinct dry abrasive blasting processes:
(1)Dry abrasive blasting of objects less than or equal to 8 feet in any dimension in completely enclosed and unvented blast chambers;
(2)dry abrasive blasting of objects less than or equal to 8 feet in any dimension performed in vented enclosures, and
(3)dry abrasive blasting of objects greater than 8 feet in any dimension. In spray painting operations that emit MFHAP, we also determined that there were two distinct sizes of products being painted that affected the manner in which the process was performed: products more than 15 feet in any dimension, and products equal to or less than 15 feet in any dimension. Therefore we developed two distinct spray painting processes:
(1)Spray painting of objects less than or equal to 15 feet in any dimension, and
(2)spray painting of objects greater than 15 feet in any dimension. However, for the purposes of controlling VOHAP, we did not distinguish between object size, therefore the standards proposed for control of VOHAP emissions from spray painting includes only one proposed GACT requirement. For dry grinding and dry polishing with machines, machining, and welding, we did not observe any distinct differences that would warrant further distinguishing the operations into separate processes. Therefore, these three processes combined with the three for dry abrasive blasting and three for painting results described above, results in nine total processes addressed by this proposed rule, as follows:
(1)Dry abrasive blasting objects less than or equal to 8 feet in any dimension, performed in completely enclosed and unvented blast chambers;
(2)dry abrasive blasting of objects less than or equal to 8 feet in any dimension, performed in vented enclosures;
(3)dry abrasive blasting of objects greater than 8 feet in any dimension;
(4)dry grinding and dry polishing with machines;
(5)machining;
(6)control of VOHAP from spray painting;
(7)control of MFHAP in the spray painting of objects less than or equal to 15 feet in any dimension;
(8)control of MFHAP in the spray painting of objects greater than 15 feet in any dimension; and
(9)welding. D. What emissions control requirements is EPA proposing? We are proposing control requirements for nine metal fabrication and finishing processes described above in section (C). The following is a description of these proposed control requirements. The emission control requirements proposed here do not apply to tool or equipment repair; or research and development operations. 1. Standards for Dry Abrasive Blasting of Objects Less Than or Equal To 8 Feet in Any Dimension, Performed in Completely Enclosed and Unvented Blast Chambers Completely enclosed and unvented blast chambers are generally small “glove box” type dry abrasive blasting operations. Because there are no vents or openings in the enclosures, there are no emissions directly from the operation itself. This proposed rule would require owners or operators of completely enclosed and unvented blast chambers to comply with the following two management and pollution prevention practices:
(1)Minimize dust generation during emptying of the enclosure; and
(2)operate all equipment used in the blasting operation according to manufacturer's instructions. 2. Standards for Dry Abrasive Blasting of Objects Less than or Equal to 8 Feet in Any Dimension, Performed in Vented Enclosures This proposed rule would require owners or operators of affected new and existing dry abrasive blasting operations blasting substrates of less than or equal to 8 feet in any dimension to perform blasting with a control system that includes an enclosure, as a capture device, and a cartridge, fabric or HEPA filter as a control device that is designed to control PM emissions, as a surrogate for MFHAP, from the process. These control systems using filters can achieve at least 95 percent control efficiency of PM, as a surrogate for MFHAP, if operated according to the manufacturer's specifications. An enclosure is defined to be any structure that includes a roof and at least two complete walls, with side curtains and ventilation as needed to insure that no air or PM exits the chamber while blasting is performed. Apertures or slots may be present in the roof or walls to allow for transport of the blasted objects using overhead cranes, or cable and cord entry into the blasting chamber. Facilities that would like to use equipment other than those listed above can seek approval to do so pursuant to the procedures in § 63.6(g) of the General Provisions to part 63, which require the owner or operator to demonstrate that the alternative means of emission limitation achieves at least equivalent HAP emission reductions as the controls specified in this proposed rule. This proposed rule also would require owners or operators of all affected new and existing dry abrasive blasting operations blasting substrates of less than or equal to 8 feet in any dimension to comply with the following three management and pollution prevention practices:
(1)Keep work areas free of excess dust by regular sweeping or vacuuming to control the accumulation of dust and other particles; regular sweeping or vacuuming is defined to be sweeping or vacuuming conducted once per day, once per shift, or once per operation as needed, depending on the severity of dust generation;
(2)enclose dusty material storage areas and holding bins, seal chutes and conveyors; and
(3)operate all equipment according to manufacturer's instructions. 3. Standards for Dry Abrasive Blasting of Objects Greater Than 8 Feet in Any Dimension This proposed rule would require owners or operators of affected new and existing dry abrasive blasting operations that blast substrates greater than 8 feet in any dimension to comply with the following management and pollution prevention practices to minimize MFHAP emissions from the processes:
(1)Do not perform blasting outside when wind velocity is greater than 25 miles per hour;
(2)switch from high PM-emitting blast media (e.g., sand) to low PM-emitting blast media (e.g., steel shot, aluminum oxide), whenever practicable;
(3)do not blast substrates having coatings containing lead (>0.1 percent lead), unless enclosures, barriers, or other PM control methods are used to collect the lead particles; and
(4)do not re-use the blast media unless contaminants (i.e., any material other than the base metal, such as paint residue) have been removed by filtration or screening so that the abrasive material conforms to its original size and makeup. This proposed rule would also require owners or operators of affected dry abrasive blasting operations that blast substrates greater than 8 feet in any dimension to comply with the following three management and pollution prevention practices:
(1)Keep work areas free of excess dust by regular sweeping or vacuuming to control the accumulation of dust and other particles; regular sweeping or vacuuming is defined to be sweeping or vacuuming conducted once per day, once per shift, or once per operation as needed, depending on the severity of dust generation;
(2)enclose dusty material storage areas and holding bins, seal chutes and conveyors; and
(3)operate all equipment according to manufacturer's instructions. 4. Standards for Dry Grinding and Dry Polishing With Machines Dry grinding and dry polishing with machines operations often emit significant PM, which is a surrogate for MFPM. This proposed rule would require owners or operators of affected new and existing dry grinding and dry polishing with machines operations to capture PM emissions, as a surrogate for MFHAP, with capture devices and vent the exhaust to a cartridge, fabric, or HEPA filter. These control systems are known to achieve at least 85 percent overall PM control efficiency, as a surrogate for MFHAP, if operated according to the manufacturer's specifications. Facilities that would like to use equipment other than those listed above can seek approval to do so pursuant to the procedures in § 63.6(g) of the General Provisions to part 63, which require the owner or operator to demonstrate that the alternative means of emission limitation achieves at least equivalent HAP emission reductions as the controls specified in this proposed rule. This proposed rule would also require owners or operators of affected new and existing dry grinding and dry polishing with machines operations to comply with the following two management and pollution prevention practices:
(1)Keep work areas free of excess dust by regular sweeping or vacuuming to control the accumulation of dust and other particles; regular sweeping or vacuuming is defined to be sweeping or vacuuming conducted once per day, once per shift, or once per operation as needed, depending on the severity of dust generation; and
(2)operate all equipment used in dry grinding and dry polishing with machines according to manufacturer's instructions. 5. Standards for Machining The majority of the PM released by machining operations consists of large particles or metal shavings that fall immediately to the floor. Any MFHAP that is released would originate from the part or product being machined. Machining is totally enclosed and/or uses lubricants or liquid coolants that do not allow small particles to escape. This proposed rule would require owners or operators of affected new and existing machining operations to comply with the following two management and pollution prevention practices to minimize dust generation in the workplace:
(1)Keep work areas free of excess dust by regular sweeping or vacuuming to control the accumulation of dust and other particles; regular sweeping or vacuuming is defined to be sweeping or vacuuming conducted once per day, once per shift, or once per operation as needed, depending on the severity of dust generation; and
(2)operate equipment used in machining operations according to manufacturer's instructions. 6. Standards for Control of VOHAP from Spray Painting Operations Spray painting operations can be significant sources of VOHAP emissions. This proposed rule would require owners or operators of spray painting operations from affected sources that have the potential to emit VOHAP to use paints containing no more than 3.0 pounds VOHAP per gallon paint solids (0.36 kilograms per liter (kg/liter)) on an annual (12-month) rolling average basis. Two methods of complying with this standard are provided. One option would require that all paints are demonstrated as meeting the VOHAP limit. The second option would require facilities to meet the VOHAP limit using a 12-month rolling weighted average. In this second option, some paints can be above the VOHAP limit as long as their use is balanced by other paints that are below the limit, such that the overall weighted average of all paints and their VOHAP content is calculated to be at or below the VOHAP limit that would be required by this proposed rule. This proposed rule would also require owners or operators of new and existing spray painting operations that have the potential to emit VOHAP to comply with the following two management and pollution prevention practices:
(1)Minimize VOHAP emissions during mixing, storage, and transfer of paints; and
(2)keep paint and solvent lids tightly closed when not in use. Based on reasonable assumptions about the practices included in the 1990 112(k) urban HAP inventory, we have concluded that painting processes that contributed to VOHAP and MFHAP emissions in these source categories most likely did not include the following materials or activities and, therefore, we do not cover these materials or activities in this proposed rule:
(1)Paints applied from a hand-held device with a paint cup capacity that is less than 3.0 fluid ounces (89 cubic centimeters);
(2)Surface coating application using powder coating, hand-held, non-refillable aerosol containers, or non-atomizing application technology, including, but not limited to, paint brushes, rollers, hand wiping, flow coating, dip coating, electrodeposition coating, web coating, coil coating, touch-up markers, or marking pens;
(3)Any painting or coating that normally requires the use of an airbrush or an extension on the spray gun to properly reach limited access spaces; or the application of paints or coatings that contain fillers that adversely affect atomization with high velocity low pressure
(HVLP)or equivalent spray guns, and the application of coatings that normally have a dried film thickness of less than 0.0013 centimeter (0.0005 in.). 7. Standards for Control of MFHAP from Spray Painting of Objects Greater Than 15 Feet in Any Dimension This proposed rule would require owners or operators of affected new and existing spray painting of objects greater than 15 feet in any dimension to comply with one equipment standard, to use of low-emitting and pollution preventing spray gun technology. This proposed rule also would require two management practices:
(1)Spray painter training and
(2)spray gun cleaning. Based on reasonable assumptions about the practices included in the 1990 112(k) urban HAP inventory, we have concluded that painting processes that contributed to MFHAP emissions in these source categories most likely did not include the following materials or activities, and, therefore, we do not cover these materials or activities in this proposed rule:
(1)Paints applied from a hand-held device with a paint cup capacity that is less than 3.0 fluid ounces (89 cubic centimeters);
(2)Surface coating application using powder coating, hand-held, non-refillable aerosol containers, or non-atomizing application technology, including, but not limited to, paint brushes, rollers, hand wiping, flow coating, dip coating, electrodeposition coating, web coating, coil coating, touch-up markers, or marking pens;
(3)Any painting or coating that normally requires the use of an airbrush or an extension on the spray gun to properly reach limited access spaces; or the application of paints or coatings that contain fillers that adversely affect atomization with HVLP or equivalent spray guns, and the application of coatings that normally have a dried film thickness of less than 0.0013 centimeter (0.0005 in.). Spray painting also does not include thermal spray operations, also known as metallizing, flame spray, plasma arc spray, and electric arc spray, among other names, in which solid metallic or non-metallic material is heated to a molten or semi-molten state and propelled to the work piece or substrate by compressed air or other gas, where a bond is produced upon impact. Thermal spraying operations at area sources are subject to the Plating and Polishing Area Source NESHAP, subpart WWWWWW of this part. *Spray Gun Technology Requirements.* This proposed rule would require all affected new and existing facilities using spray-applied paints to use HVLP spray guns, electrostatic application, or airless spray techniques. Alternatively, an equivalent technology can be used if it is demonstrated to achieve transfer efficiency comparable to one of the spray gun technologies listed above for a comparable operation, and for which written approval has been obtained from the Administrator or delegated authority. The procedure to be used to demonstrate that spray gun transfer efficiency is equivalent to that of an HVLP spray gun should 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” (incorporated by reference, see § 63.14 of subpart A of this part). The Director of the Federal Register approves this incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may obtain a copy from the California South Coast Air Quality Management District Web site at *http://www.aqmd.gov/permit/docspdf/TransferEfficiencyTestingGuidelinesforHVLPEquivalency.pdf* and *http://www.aqmd.gov/permit/docspdf/Spray-Eqpt-Trfr-Efficiency.pdf.* You may inspect a copy at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: *http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html* . The proposed requirements of this paragraph do not apply to painting performed by students and instructors at paint training centers. *Spray Painting Training Requirements.* This proposed rule would require all workers that perform spray painting at affected new and existing facilities to be trained, with certification made available that this training has occurred. The painters would need to be certified as having completed classroom and hands-on training in the proper selection, mixing, and application of paints, or the equivalent. Refresher training would need to be repeated at least once every 5 years. These requirements would not apply to operators of robotic or automated surface painting operations. The initial and refresher training would need to address the following topics to reduce paint overspray, which has a direct effect on emissions reductions, as follows: • Spray gun equipment selection, set up, and operation, including measuring paint viscosity, selecting the proper fluid tip or nozzle, and achieving the proper spray pattern, air pressure and volume, and fluid delivery rate. • Spray technique for different types of paints to improve transfer efficiency and minimize paint usage and overspray, including maintaining the correct spray gun distance and angle to the part, using proper banding and overlap, and reducing lead and lag spraying at the beginning and end of each stroke. • Routine spray booth and filter maintenance, including filter selection and installation. For the purposes of the proposed training requirements, the facility owner or operator may certify that their employees have completed training during “in-house” training programs. Also, facilities that can show by documentation or certification that a painter's work experience and/or training has resulted in training equivalent to the training described above would not be required to provide the initial training required for these painters. Spray painters have 180 days to complete training after hiring or transferring into a surface painting job from another job in the facility. These proposed training requirements would not apply to the students of an accredited surface painting training program who are under the direct supervision of an instructor who meets the requirements of this paragraph. The training and certification for this rule would be valid for a period not to exceed 5 years after the date the training is completed. *Spray Gun Cleaning Requirements.* This proposed rule would require all paint spray gun cleaning operations at affected new and existing facilities to use an atomized mist or spray such that the gun cleaning solvent and paint residue is not created outside of the container that collects the used gun cleaning solvent. Spray gun cleaning may be done, for example, by hand cleaning of parts of the disassembled gun in a container of solvent, by flushing solvent through the gun without atomizing the solvent and paint residue, or by using a fully enclosed spray gun washer. A combination of these non-atomizing methods above may also be used. 8. Standards for Control of MFHAP From Spray Painting Objects Less Than or Equal to 15 Feet in Any Dimension This proposed rule would require affected new and existing facilities that are spray painting objects less than or equal to 15 feet in any dimension to comply with two equipment standards:
(1)Use of low-emitting and pollution preventing spray gun technology, and
(2)use of spray booth PM filters. This proposed rule also would require two management practices:
(1)Spray painter training; and
(2)spray gun cleaning. Based on reasonable assumptions about the practices included in the 1990 112(k) urban HAP inventory, we have concluded that painting processes that contributed to MFHAP emissions in these source categories most likely did not include the following materials or activities:
(1)Paints applied from a hand-held device with a paint cup capacity that is less than 3.0 fluid ounces (89 cubic centimeters);
(2)Surface coating application using powder coating, hand-held, non-refillable aerosol containers, or non-atomizing application technology, including, but not limited to, paint brushes, rollers, hand wiping, flow coating, dip coating, electrodeposition coating, web coating, coil coating, touch-up markers, or marking pens;
(3)Any painting or coating that normally requires the use of an airbrush or an extension on the spray gun to properly reach limited access spaces; or the application of paints or coatings that contain fillers that adversely affect atomization with HVLP or equivalent spray guns, and the application of coatings that normally have a dried film thickness of less than 0.0013 centimeter (0.0005 in.). Spray painting also does not include thermal spray operations, also known as metallizing, flame spray, plasma arc spray, and electric arc spray, among other names, in which solid metallic or non-metallic material is heated to a molten or semi-molten state and propelled to the work piece or substrate by compressed air or other gas, where a bond is produced upon impact. Thermal spraying operations at area sources are subject to the Plating and Polishing Area Source NESHAP, subpart WWWWWW of this part. *Spray Gun Technology Standards.* This proposed rule would require all affected new and existing facilities using spray-applied paints to use HVLP spray guns, electrostatic application, or airless spray techniques. Alternatively, an equivalent technology can be used if it is demonstrated to achieve transfer efficiency comparable to one of the spray gun technologies listed above for a comparable operation, and for which written approval has been obtained from the Administrator or delegated authority. The procedure to be used to demonstrate that spray gun transfer efficiency is equivalent to that of an HVLP spray gun should 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” (incorporated by reference, see § 63.14 of subpart A of this part). The Director of the Federal Register approves this incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may obtain a copy from the California South Coast Air Quality Management District Web site at *http://www.aqmd.gov/permit/docspdf/TransferEfficiencyTestingGuidelinesforHVLPEquivalency.pdf* and *http://www.aqmd.gov/permit/docspdf/Spray-Eqpt-Trfr-Efficiency.pdf.* You may inspect a copy at the NARA. For information on the availability of this material at NARA, call 202-741-6030, or go to: *http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html* . The requirements of this paragraph would not apply to painting performed by students and instructors at paint training centers. *Spray Booth PM Control Requirement.* This proposed rule would require the surface preparation stations or spray booths 3 of affected new and existing facilities to be fitted with fiberglass or polyester fiber filters or other comparable filter technology that can be demonstrated to achieve at least 98 percent control efficiency of paint overspray (also referred to as “arrestance”). As an alternate compliance option, spray booths can be equipped with a water curtain, called a “waterwash” or “waterspray” booth. 3 The spray booth roof may contain narrow slots for connecting the parts and products to overhead cranes, or for cord or cable entry into the spray booth. *98 Percent PM Control Filter* —For spray booths equipped with a PM filter, the procedure used to demonstrate filter efficiency would need to be consistent with 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” (incorporated by reference, see § 63.14 of subpart A of this part). The Director of the **Federal Register** approves this incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may obtain a copy from the ASHRAE at 1791 Tullie Circle, NE., Atlanta, GA 30329 or by electronic mail at orders@ashrae.org. You may inspect a copy at the NARA. For information on the availability of this material at NARA, call 202-741-6030, or go to: *http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html* . Compliance with the filter efficiency standard also can be demonstrated through data provided by the filter manufacturer. The test paint for measuring filter efficiency would be a high solids bake enamel delivered at a rate of at least 135 grams per minute from a conventional (non-HVLP) air-atomized spray gun operating at 40 pounds per square inch air pressure; the air flow rate across the filter shall be 150 feet per minute. Affected facilities may use published filter efficiency data provided by filter vendors to demonstrate compliance with this proposed requirement and would not be required to perform this measurement. *Waterwash spray booths* —As an alternative compliance option, spray booths may be equipped with a water curtain that achieves at least 98 percent control of MFHAP. The waterwash or “waterspray” spray booths would be required to be operated and maintained according to the manufacturer's specifications. *Spray Painting Training Requirements.* This proposed rule would require all workers that perform spray painting at affected new and existing facilities to be trained, with certification made available that this training has occurred. The painters would need to be certified as having completed classroom and hands-on training in the proper selection, mixing, and application of paints, or the equivalent. Refresher training would need to be repeated at least once every 5 years. These requirements would not apply to operators of robotic or automated surface painting operations. The initial and refresher training would need to address the following topics to reduce paint overspray, which has a direct effect on emissions reductions, as follows: • Spray gun equipment selection, set up, and operation, including measuring paint viscosity, selecting the proper fluid tip or nozzle, and achieving the proper spray pattern, air pressure and volume, and fluid delivery rate. • Spray technique for different types of paints to improve transfer efficiency and minimize paint usage and overspray, including maintaining the correct spray gun distance and angle to the part, using proper banding and overlap, and reducing lead and lag spraying at the beginning and end of each stroke. • Routine spray booth and filter maintenance, including filter selection and installation. For the purposes of the proposed training requirements, the facility owner or operator may certify that their employees have completed training during “in-house” training programs. Also, facilities that can show by documentation or certification that a painter's work experience and/or training has resulted in training equivalent to the proposed training described above would not be required to provide the initial training required for these painters. Spray painters have 180 days to complete training after hiring or transferring into a surface painting job from another job in the facility. These proposed training requirements do not apply to the students of an accredited surface painting training program who are under the direct supervision of an instructor who meets the requirements of this paragraph. The training and certification for this proposed rule would be valid for a period not to exceed 5 years after the date the training is completed. *Spray Gun Cleaning Requirements* . This proposed rule would require all paint spray gun cleaning operations at affected new and existing facilities to use an atomized mist or spray such that the gun cleaning solvent and paint residue is not created outside of the container that collects the used gun cleaning solvent. Spray gun cleaning may be done, for example, by hand cleaning of parts of the disassembled gun in a container of solvent, by flushing solvent through the gun without atomizing the solvent and paint residue, or by using a fully enclosed spray gun washer. A combination of these non-atomizing methods above may also be used. 9. Standards for Welding This proposed rule would require owners or operators of affected new and existing welding operations to minimize or reduce welding fume by implementing the following 11 management and pollution prevention practices to be used as practicable:
(a)Use low fume welding processes whenever possible. These welding processes include but are not limited to: GMAW—also called MIG; GTAW—also called TIG; PAW; SAW; and all welding processes that do not use a consumable electrode;
(b)Use shielding gases, as appropriate to the type of welding used;
(c)Use an inert carrier gas, such as argon, as practicable to the type of welding used;
(d)Use low or no-HAP welding materials and substrates;
(e)Operate with a welding angle close to 90°;
(f)Optimize electrode diameter;
(g)Operate with lower voltage and current;
(h)Use low fume wires, as appropriate to the type of welding used;
(i)Optimize shield gas flow rate, as applicable to the type of welding used;
(j)Use low or optimized torch speed; and
(k)Use pulsed-current power supplies, as applicable to the type of welding used. As a compliance alternative to the management practices for welding processes, facilities may use control systems that reduce at least 85 percent of the welding fume, as a surrogate for MFHAP, with operation of the capture and control devices according to the manufacturer's instructions. E. What are the initial compliance requirements? To demonstrate initial compliance with this proposed rule, owners or operators of affected new and existing sources with dry abrasive blasting, machining, dry grinding and dry polishing with machines, spray painting, and welding operations would certify that they have implemented all required management and pollution prevention practices. In addition, owners or operators of new and existing affected sources with spray painting operations that have the potential to emit VOHAP or MFHAP would also certify that they are in compliance with the following requirements: Limit the VOHAP content of spray-applied paints, use of spray booths and filters, use of approved spray delivery and cleaning systems, and proper training of workers in spray painting application techniques. F. What are the continuous compliance requirements? There are continuous requirements for all affected processes in metal fabrication and finishing sources. There are also additional continuous compliance requirements for specific processes or groups of processes, as follows: Visual emissions testing for dry abrasive blasting, machining, and dry grinding and dry polishing with machines; tests for VOHAP content of paints in spray painting; tests for spray painting for MFHAP control; and visual emissions testing for welding. These requirements are discussed below in more detail. 1. Continuous Compliance Requirements for All Sources This proposed rule would require owners or operators of all affected new and existing sources to demonstrate continuous compliance by adhering to the management and pollution prevention practices specified in this proposed rule and maintaining the appropriate records to document this compliance. Owners or operators that comply with this proposed rule by operating capture and control systems would be required to operate and maintain each capture system and control device according to the manufacturer's specifications. They also would be required to maintain records to document conformance with this requirement, and to keep the manufacturer's instruction manual available at the facility at all times. 2. Visual Emissions Testing for Dry Abrasive Blasting, Machining, and Dry Grinding and Dry Polishing With Machines, To Determine Continuous Compliance *Visible Emissions Testing* . For new and existing affected sources of dry abrasive blasting operations (except dry abrasive blasting in completely enclosed and unvented blast chambers), machining operations, and dry grinding and dry polishing with machines, this proposed rule would require visible emissions testing to demonstrate continuous compliance with management and pollution prevention practices intended to reduce emissions of PM, as a surrogate for MFHAP. The affected sources would perform visual determinations of fugitive emissions, according to the graduated schedule described below, using EPA Method 22 (40 CFR part 60, appendix A) for a period of 15 continuous minutes from the exhaust from either the stack to the control device or the stack from the building where the equipment is located, as applicable. For the purpose of this proposed rule, the presence of visible emissions would be noted if any emissions are observed for more than a total of 6 minutes during the 15-minute period. In case of failure in any Method 22 test, immediate correction action would be required to follow to reduce or eliminate the visible emissions. The affected source would then be required to perform more frequent visible emissions testing, as described in the graduated schedule below. *Graduated Testing Schedule* . The graduated schedule for continuous compliance with visible emissions testing for this rule, which progresses from daily to weekly to monthly testing, is as follows. Affected sources would be required to be tested daily for visible emissions with Method 22 for 10 consecutive days that the source is in operation. If visible emissions are not observed during these 10 days, the affected source can be tested once every 5 consecutive days (weekly) that the source is in operation. If no visible emissions are observed during these 4 consecutive weekly Method 22 tests, the affected source can be tested once per consecutive 21 days (month) of operation. If any visible emissions are observed during the weekly and monthly testing, the affected source would resume visible emissions testing in the more frequent schedule, i.e., weekly visible emissions testing is increased to daily, and monthly testing is increased to weekly. 3. Tests for VOHAP Content of Paints in Spray Painting To Determine Continuous Compliance For owners and operators of new and existing affected spray painting operations, this proposed rule would allow two options for demonstrating compliance with the limitation on the mass of VOHAP contained in their paints:
(1)Compliance via paint VOHAP content limit, and
(2)compliance via a weighted-average paint VOHAP content limit. Both of these options are pollution prevention strategies. Since we do not have knowledge of any facilities using other control approaches to control VOHAP emissions, we have not included any other on control options in this proposed rule. We are specifically requesting comments on this part of the proposed rule if our assumptions about the need for an additional compliance option are in error. Option 1: *Compliance via Paint VOHAP Content Limit* . In this option, the facility determines the VOHAP content of their paints and the volume fraction of paint solids in the paints to compare to the limit of 3.0 pounds VOHAP per gallon paint solids (0.36 kg/liter) on an annual (12-month) rolling average basis. Facilities may rely on manufacturer's formulation data for determining the VOHAP content of their paints and the volume fraction of paint solids; tests or analysis of the materials would not be required if formulation data are available. Alternatively, results from the following test methods may be used. For determining the VOHAP content of paints, Method 311 of 40 CFR part 63, appendix A may be used. Nonaqueous volatile matter, excluding water ( *i.e.* , VOC) may also be used as a surrogate for VOHAP, since VOC includes all VOHAP as well as any additional organic compounds present in the paint. To determine VOC content of the paints, facilities may use manufacturer's formulation data or Method 24 of 40 CFR part 60, appendix A. For determining the average density of volatile matter in the paint, facilities may use American Society of Testing and Materials
(ASTM)Method D1475-98, “Standard Test Method for Density of Liquid Coatings, Inks, and Related Products” (incorporated by reference, see § 63.14 of subpart A of this part). The Director of the Federal Register approves this incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may obtain a copy of these standards from ASTM at *http://www.astm.org* or ASTM International, 100 Barr Harbor Drive, P.O. Box C700, West Conshohocken, PA 19428-2959 U.S.A. You may inspect a copy at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: *http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html* . For determining the volume fraction of paint solids, facilities may use:
(1)ASTM Method D2697-03, “Standard Test Method for Volume Nonvolatile Matter in Clear or Pigmented Coatings;” or
(2)ASTM Method D6093-97 (Reapproved 2003), “Standard Test Method for Percent Volume Nonvolatile Matter in Clear or Pigmented Coatings Using a Helium Gas Pycnometer” (incorporated by reference, see § 63.14 of subpart A of this part). The Director of the Federal Register approves this incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may obtain a copy of these standards from ASTM at *http://www.astm.org* or ASTM International, 100 Barr Harbor Drive, P.O. Box C700, West Conshohocken, PA 19428-2959 U.S.A. You may inspect a copy at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: *http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html* . *Option 2: Compliance via a Weighted-Average Paint VOHAP Content Limit* . This option would allow a demonstration of compliance based on the VOHAP contained in the mix of paints used. This option offers facilities the flexibility to use some individual paints that do not by themselves meet the paint VOHAP limit, if they also use low-HAP or non-HAP paints such that overall weighted average VOHAP content of all paints used over a 12-month period meets the VOHAP limit. Facilities would likely need to use this option if they use HAP-containing thinners and/or other additives in addition to paints, since these additives usually have high VOHAP contents. Equations are provided in this proposed rule to demonstrate how to perform the calculations to demonstrate compliance. Facilities would track the mass of VOHAP in each paint and the amount of paint used in affected sources each month of the compliance period. This information would then be used to determine the total mass of VOHAP in all paints along with the total volume of paint solids used during the compliance period by adding together all the monthly values for mass of VOHAP and the monthly values for volume of paint solids used, for the 12 months of the initial compliance period. Facilities may subtract from the total mass of VOHAP the amount contained in waste materials sent to a hazardous waste treatment, storage, and disposal facility regulated under 40 CFR part 262, 264, 265, or 266, “Hazardous Waste.” Facilities would be required to calculate their overall weighted-average VOHAP paint content (in pound or kilogram VOHAP emitted per gallon or liter paint solids used) and show that this rate meets the VOHAP limit. Facilities may use readily available purchase records and manufacturer formulation data to determine the amount of each paint used and the VOHAP in each material. In summary, if a facility chooses to demonstrate compliance using Option 2, * Compliance via a Weighted Average Paint VOHAP Content Limit * , they would be required to determine all the parameters listed below for their paints. Either manufacturer's formulation data or analysis of the materials by approved test methods would be allowable options for determining these values. • Quantity of each paint, thinner and/or other additive used, from records. • Mass of VOHAP in each paint, thinner, and other additives, from manufacturer's data or tests. • Volume fraction of paint solids for each paint, from manufacturer's data or tests. • Total mass of VOHAP in all materials and total volume of paint solids used each month, by calculation. • Total mass of VOHAP emissions and total volume of paint solids used for the initial compliance period, by calculation. • Ratio of the total mass of VOHAP emitted to the total volume of paint solids used for the initial compliance period, by calculation. With this option, facilities would need to record these calculations and results, and include them in the Notification of Compliance Status. EPA notes that the VOHAP composition of coatings subject to this proposed rule is “emissions data” under section 114 of the CAA, and EPA's regulatory definition of such term in 40 CFR part 2, because the information is necessary to determine compliance with applicable limits. As such, this information must be available to the public regardless of whether EPA obtains the information through a reporting requirement or through a specific request to the regulated entity. Therefore, such information is not eligible for treatment as “confidential business information.” 4. Tests for Spray Painting for MFHAP Control To Determine Continuous Compliance Affected new and existing facilities that perform spray painting would need to ensure and certify that:
(1)All new and existing personnel, including contract personnel, who spray-apply surface paints with MFHAP are trained in the proper application of surface paints;
(2)all spray-applied paints with MFHAP are applied with a HVLP spray gun, electrostatic application, airless spray gun, or equivalent;
(3)emissions of MFHAP are minimized during mixing, storage, and transfer of paints; and
(4)paint and solvent lids are kept tightly closed when not in use. In addition, for spray painting objects less than 15 feet in any dimension, owners or operators of affected processes would also need to ensure and certify that surface preparation stations or spray booths are fitted with fiberglass or polyester fiber filters or other comparable filter technology that can be demonstrated to achieve at least 98 percent control efficiency of the MFHAP in the paint. 5. Visual Emissions Testing for Welding To Determine Continuous Compliance For new and existing affected sources with welding operations, this proposed rule would require visible emissions testing from a vent, stack, exit, or opening from the building containing the welding metal fabrication and finishing operations to demonstrate continuous compliance with management practices or add-on controls intended to control PM emissions, as a surrogate for MFHAP. This testing has a three-tier compliance structure. *Tier 1* . The first tier for welding compliance would require visual determinations of fugitive emissions using EPA Method 22, and allows the same graduated testing schedule described above in section (F)(2) for dry abrasive blasting, dry grinding and dry polishing with machines, and machining, which includes provisions for reducing the frequency of the Method 22 tests when no visible emissions are observed in consecutive time periods of operation. If no visible emissions are found, no corrective action would be required. If visible emissions are present during any Method 22 test, immediate corrective action would be required that includes inspection of all fume sources and control methods in operation, and documentation of the visual emissions test results. The graduated schedule also would require the affected source to resume visible emissions testing in the previous, more frequent schedule, i.e., weekly visible emissions testing is increased to daily, and monthly testing is increased to weekly. *Tier 2* . The second tier for welding compliance would be implemented if visible emissions are detected for the second time in any consecutive twelve-month period. The second tier would require corrective action and documentation of the detection of visible emissions and the corrective action taken. Corrective action would be required to take place immediately after the failed Method 22 test. In addition, the second tier for welding compliance would require a facility to perform a visual determination of emissions opacity using EPA Method 9 (40 CFR part 60, appendix A) within 24 hours of the failed Method 22 test. In EPA Method 9, the average of 24 15-second intervals of opacity observation is determined, producing a total of 360 seconds or 6 minutes of opacity observation or 6-minute average opacity. If in the second tier tests using Method 9 the average of the 6-minute opacities is determined to be 20 percent or less, implementation of Method 9 testing would be required with a graduated schedule of reduced frequency like that used for the Method 22 tests, described above in section (F)(2), from daily to weekly to monthly for consecutive successful tests. If opacity continues to be less than 20 percent and, pursuant to the graduated schedule the Method 9 testing for the welding processes is able to be reduced to once a month, the facility would have the choice of switching back to performing Method 22 tests on a monthly basis. Alternatively, the facility could choose to continue performing monthly Method 9 tests. If the average of the 6-minute opacities is determined to be more than 20 percent in the Method 9 tests in the second tier, the third tier of welding compliance requirements would be required, as described below. *Tier 3* . The third tier for welding compliance would include the development and implementation of a Site-specific Welding Emissions Management Plan
(SWMP)within 30 days, and submittal of the SWMP to the delegated authority. The SWMP would be required to be kept at the facility in a readily accessed location for inspector review. Also, the facility would be required to report any exceedence of the 20 percent opacity annually along with their annual compliance report. The purpose of the SWMP is to ensure that no visible emissions occur in the future from this process, as determined by EPA Method 22 tests or less than 20 percent opacity by EPA Method 9. Application of the SWMP may involve implementation of additional management and pollution prevention practices, as described above under Welding Controls, beyond those already in place at the facility or the use of capture equipment and add-on control devices. During the development of the SWMP, daily Method 9 tests would be required to continue to be performed, according to the graduated schedule. The SWMP would be required to be updated after any failures to meet 20 percent or less opacity as determined by Method 9. If opacity continues to be less than 20 percent and Method 9 testing of the welding processes at the facility falls to once a month, according to the graduated testing schedule, the facility would have a choice of changing to monthly Method 22 tests or remaining with monthly Method 9, as above. The SWMP would be updated annually and would include revisions to reflect any changes in welding operations or controls at the facility. The SWMP is estimated to require up to 16 hours to prepare initially. We are proposing that the SWMP would address the following: The type(s) of welding operation(s) currently used at the facility; the measures used to minimize welding fume at each of type of welding operation or each welding station; and procedures used by the facility to ensure that these measures are being implemented. No outside consultants or professional engineer certification is required or necessary to prepare the SWMP. G. What are the notification, recordkeeping, and reporting requirements? The affected new and existing sources would be required to comply with some requirements of the General Provisions (40 CFR part 63, subpart A), which are identified in Table 3 of this proposed rule. Each facility would be required to submit an Initial Notification and a Notification of Compliance Status according to the requirements in 40 CFR 63.9 in the General Provisions. The affected source would be required to prepare an annual compliance status report and keep this report in a readily available location for inspector review. If there are any exceedences during the year, the facility would submit this annual compliance report with any exceedence reports prepared during the year. The exceedence reports would describe the circumstance of the exceedence and the corrective action taken. We specifically request comment on this proposed requirement for annual compliance report preparation and exceedence report submission. Facilities also would be required to maintain all records that demonstrate initial and continuous compliance with this proposed rule, including records of all required notifications and reports, with supporting documentation; records showing compliance with management and pollution prevention practices. Owners and operators would also maintain records of the following, if applicable: Date and results of all visual determinations of fugitive emissions, including any follow-up tests and corrective actions taken; date and results of all visual determinations of emissions opacity, and corrective actions taken; and a copy of the SWMP, if it is required. IV. Rationale for This Proposed Rule A. How did we select the source category? The nine metal fabrication and finishing source categories were listed as area source categories on November 22, 2002 (67 FR 70427). The inclusion of these source categories on the area source category list was based on data from the CAA section 112(k) inventory, which represents 1990 urban air information. Those data indicated that metal fabrication and finishing plants were contributors to MFHAP emissions in urban areas. For these source categories, we performed site visits and written facility surveys, reviewed published literature, reviewed information from Web sites of vendors of air pollution control devices, and held discussions with trade organizations and industry experts. From this research we found that the nine source categories perform the same HAP-emitting processes, and, if the process was present, the emissions were controlled in the same way. Consequently, we decided to issue regulations for these nine metal fabrication and finishing area source categories in one rulemaking action. B. How did we select the affected sources? We found in on our research described above in section IV(A) that potential sources of HAP emissions from the nine metal fabrication and finishing source categories include the following five general metal fabrication and finishing operations:
(1)Dry abrasive blasting;
(2)machining;
(3)dry grinding and dry polishing with machines;
(4)spray painting; and
(5)welding. We found that MFHAP are used in and have the potential to be emitted from these operations. Therefore, we selected the facilities with these processes in the source categories as the affected sources for this proposed rule. Because the MFHAP may be emitted as fugitives, we have elected to define the affected sources as the collection of all equipment and activities necessary to perform dry abrasive blasting, machining, dry grinding and dry polishing with machines, spray painting, and welding. Four of the metal fabrication and finishing source categories were also listed for emissions of the organic HAP TCE. 4 Chlorinated solvents such as TCE are used as degreasers in these metal fabrication and finishing source categories. We subsequently discovered that the 1990 emissions data for TCE was for metal fabrication and finishing facilities that used TCE in degreasing operations, which are not part of this source category. Rather, these emission units at both major and area sources are subject to standards for halogenated solvent cleaning under 40 CFR part 63, subpart T. Consequently, we are not proposing standards for TCE from metal fabrication and finishing facilities. The four metal fabrication and finishing source categories listed for TCE emissions remain listed source categories pursuant to section 112(c)(3) of this part, and this proposed rule establishes standards for emissions of MFHAP and VOHAP. Therefore, we are clarifying that we do not need these four source categories to meet the section 112(c)(3) 90 percent requirement regarding area source emissions of TCE. 4 These four source categories were Electrical and Electronic Equipment Finishing Operations; Fabricated Metal Products; Primary Metal Products Manufacturing; and Valves and Pipe Fittings. We also found that some metal fabrication and finishing facilities also perform plating. All chromium electroplating tanks are already subject to the Chromium Electroplating NESHAP (40 CFR part 63, subpart N), while other plating operations at area sources are subject to the Plating and Polishing Area Source Rule (40 CFR part 63, subpart WWWWWW). Therefore, these sources would not be affected sources under this proposed rule for metal fabrication and finishing area sources. C. How did we determine the regulated processes? We found in our research for this proposed rule that there are five general production operations common to the nine metal fabrication and finishing source categories that can emit MFHAP:
(1)Dry abrasive blasting;
(2)dry grinding and dry polishing with machines;
(3)machining;
(4)spray painting; and
(5)welding. As part of our analyses, we considered whether there were differences in the operations, the products fabricated or finished, or other factors affecting emissions that would warrant different control strategies. 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 * * *” We observed significant differences in processes for two of the five metal fabrication and finishing operations: Dry abrasive blasting and painting. Considering these differences in the processes, we identified nine distinct metal fabrication and finishing processes for the purposes of this proposed rule. A discussion of how we identified these nine processes follows below. 1. Dry Abrasive Blasting Regulated Processes Some dry abrasive blasting operations for small parts with low-throughput are performed in completely enclosed units commonly called “glove boxes,” which have no air outlet or ventilation and, hence, no emissions when designed and operated properly. These sources are distinctly different from larger operations which are not completely enclosed because of the limitations of their size. Most dry abrasive blasting of larger objects and/or large throughput operations performed at metal fabrication and finishing area sources is performed in enclosed spaces, which are typically equipped with cartridge filters or other control devices on the air exhaust. However, it is not always practical to completely enclose dry abrasive blasting of very large objects ( *e.g.* , oil derricks) because of the size and subsequent cost of the enclosure and also difficulty maneuvering the object into the enclosure. The impracticality of this effort is particularly evident when the operation is only performed intermittently. Consequently, dry abrasive blasting of very large objects is sometimes performed outdoors or in 2- or 3-sided buildings that are open on one or more sides to allow the large articles to be easily moved into the blasting zone by heavy equipment or cranes. We found State regulations that allow outdoor dry abrasive blasting operations for objects over 8 feet in any one dimension. We also found through our industry surveys that these very large objects were blasted outdoors. We also learned that facilities are motivated to enclose dry abrasive blasting operations whenever possible because of the potential cost savings from recovering the blast material which lowers blast material usage and also costs, so that outside blasting is only performed when necessary because of the size of the parts or products. Consequently, we determined for the purposes of this proposed rule that there were two distinct sizes of products being blasted that affected the manner in which the process was performed: Products more than 8 feet in any dimension, and products less than or equal to 8 feet. For products less than or equal to 8 feet, we also observed that some of these products were blasted in completely enclosed chambers that did not allow any air or emissions to escape. Therefore, we developed three distinct dry abrasive blasting processes:
(1)Dry abrasive blasting of objects greater than 8 feet in any dimension;
(2)dry abrasive blasting of objects less than or equal to 8 feet in any dimension, performed in completely enclosed and unvented blast chambers; and
(3)dry abrasive blasting of objects less than or equal to 8 feet in any dimension, performed in vented enclosures. 2. Spray Painting Regulated Processes Most spray painting performed at metal fabrication and finishing area sources is performed in enclosed spray paint booths, which are typically equipped with filters for PM control, where PM is a surrogate for MFHAP. Because of the impracticality of enclosing large objects in booths, similar to the discussion above for dry abrasive blasting, we found that it is common practice in the industry for these sources to spray paint large objects outside or in 2- or 3-sided buildings. We found that the size of objects typically spray painted outside are approximately 15 feet in any one dimension. Therefore, we determined that there were two distinct sizes of products being painted that affected the manner in which the process was performed:
(1)Products more than 15 feet in any dimension; and
(2)products equal to or less than 15 feet in any dimension. Therefore, we developed two distinct spray painting processes for MFHAP control:
(1)Spray painting of objects less than or equal to 15 feet in any dimension; and
(2)spray painting of objects greater than 15 feet in any dimension. It should be noted that the object size cut-off for the spray painting processes is more stringent than the one selected for dry abrasive blasting in that objects between 8 and 15 feet in dimension are enclosed for spray painting but not for blasting. This difference occurs because the MFHAP overspray from uncontrolled spray painting is higher, more hazardous, and more of a nuisance ( *i.e.* , more odor, clean-up, etc.) than the inert PM and low level of MFHAP emitted from dry abrasive blasting. Therefore, painting spray booths need to be sealed better, whereas in dry abrasive blasting the structures can be partially enclosed. We also determined that there was the potential for significant VOHAP emissions from painting that are not controlled by the PM capture and control equipment described above. We also observed that for the purposes of controlling VOHAP, it was not necessary to distinguish between sizes of the objects painted. Therefore, we are proposing one standard for control of VOHAP emissions from spray painting that would apply to all spray painting operations. Since this standard is a pollution prevention technique that restricts the types of coatings used in spray painting, it does not differentiate the size of the product being painted. 3. Other Regulated Processes For dry grinding and dry polishing with machines; machining; and welding we did not observe any distinct differences that would warrant differentiating the operations into separate processes. Therefore, these three operations are included as individual regulated processes in this proposed rule. 4. The Nine Regulated Processes in the Metal Fabrication and Finishing Source Categories In the above section IV(C)(1), we discussed how we divided dry abrasive blasting operations into three processes for the purposes of this proposed rule. In the above section IV(C)(2), we discussed how we divided painting operations into three processes for regulation. The remaining three operations were not further divided, as discussed above in section (C)(3). The result of these analyses is that we have identified the following nine metal fabrication and finishing processes for this proposed rule:
(1)Dry abrasive blasting objects less than or equal to 8 feet in any dimension, performed in completely enclosed and unvented blast chambers;
(2)Dry abrasive blasting of objects less than or equal to 8 feet in any dimension, performed in vented enclosures;
(3)Dry abrasive blasting of objects greater than 8 feet in any dimension;
(4)Dry grinding and dry polishing with machines;
(5)Machining;
(6)Control of VOHAP from spray painting;
(7)Control of MFHAP in spray painting of objects less than or equal to 15 feet in any dimension;
(8)Control of MFHAP in spray painting of objects greater than 15 feet in any dimension; and
(9)Welding. D. How was GACT determined? We are proposing nine standards representing GACT for the metal fabrication and finishing source categories, as provided in CAA section 112(d)(5). The information used to determine the proposed GACT is derived from site visits and written facility surveys, published literature, information from websites of vendors of air pollution control devices, and discussions with trade organizations and industry experts. We found that the MFHAP emissions from the nine metal fabrication and finishing source categories are already well controlled by the industry, where MFHAP is controlled as PM, a surrogate for MFHAP. The facilities were motivated to control these MFHAP emissions to improve health and safety of the worker's environment and to save raw material use. We evaluated the control technologies and management practices that are current industry practice for the nine metal fabrication and finishing area source categories. See Section II(C)(3) above, “Metal Fabrication and Finishing HAP Emission Controls,” for a discussion of the controls used in the metal fabrication and finishing source categories. We also evaluated the control technologies used in similar industries. We did not identify any major sources of MFHAP in these nine source categories. We also considered costs and economic impacts in determining GACT. We believe the consideration of costs and economic impacts is especially important for metal fabrication and finishing sources because requiring additional controls would result in only marginal reductions in emissions at very high costs for a modest incremental improvement in MFHAP control, and because more than 90 percent of metal fabrication and finishing facilities are small businesses. Since we have concluded that the industry was already well-controlled, we have developed GACT requirements to insure that these gains in emission control from the 1990 levels are continued. We explain below in detail our proposed GACT determinations. 1. GACT for Dry Abrasive Blasting Dry abrasive blasting generates much PM and to a lesser degree MFHAP from substrate material, and any dirt and paint if the substrate was previously used. We found that it is standard industry practice to control indoor blasting by either a total enclosure with no exhaust or a total enclosure exhausted to PM filtration devices where PM is controlled as a surrogate for MFHAP. Facilities in the industry have enclosed these processes due to the significant cost savings that results from the ability to recycle the used blast material. We also found that it is standard industry practice to perform blasting of large objects outdoors since they cannot fit easily inside enclosures. Many State laws allow dry abrasive blasting outdoors for objects over 8 feet in any one dimension. Therefore, we concluded that this is a separate process different from the indoor blasting which was described above. Consequently, we developed three distinct processes for dry abrasive blasting operations the purposes of this proposed rule, as follows:
(1)Dry abrasive blasting objects less than or equal to 8 feet in any dimension, performed in completely enclosed and unvented blast chambers;
(2)dry abrasive blasting of objects less than or equal to 8 feet in any dimension, performed in vented enclosures; and
(3)dry abrasive blasting of objects greater than 8 feet in any dimension. The following is a discussion of how we developed GACT for these three processes. a. *Dry Abrasive Blasting Objects Less Than or Equal to 8 Feet in Any Dimension, Performed in Completely Enclosed and Unvented Chambers.* We found that it is standard industry practice to use total enclosures with no exhaust for some dry abrasive blasting operations of objects less than or equal to 8 feet. Therefore, we are proposing that GACT for this dry abrasive blasting process is management practices because controls in the form of total enclosures are already a part of the process equipment and do not allow PM, as a surrogate for MFHAP, to be emitted during blasting. These two management practices are as follows:
(1)Minimize dust generation during emptying of the enclosure; and
(2)operate all equipment used in the blasting operation according to manufacturer's instructions. These management practices are standard industry practice for “good housekeeping” in and around dusty processes, and are applicable when the chambers are opened for cleaning after blasting is competed. b. *Dry Abrasive Blasting of Objects Less than or Equal to 8 Feet in any Dimension, Performed in Vented Enclosures.* We found that it is standard industry practice to control some indoor blasting operations of objects less than or equal to 8 feet by using an enclosure exhausted to PM filtration devices, where PM is controlled as a surrogate for MFHAP. Since these dry abrasive blasting operations are enclosed, capturing and filtering the exhaust enables recycling of the blast material, which is a cost savings to the facility and standard industry practice. We learned from the facilities in the industry that the indoor workplace would not be tolerable without the blasting controls that we are proposing as GACT. Therefore, we propose that GACT for this process is an equipment standard of enclosures and filtration that captures and collects the PM emitted, as a surrogate for MFHAP. We are also proposing management practices as GACT that are standard industry practice or “good housekeeping” for in and around dusty processes, as follows:
(1)Keep work areas free of excess dust by regular sweeping or vacuuming to control the accumulation of dust and other particles; regular sweeping or vacuuming is defined to be sweeping or vacuuming conducted once per day, once per shift, or once per operation as needed, depending on the severity of dust generation;
(2)enclose dusty material storage areas and holding bins, seal chutes and conveyors; and
(3)operate all equipment according to manufacturer's instructions. c. *Dry Abrasive Blasting of Objects Greater Than 8 Feet in any Dimension.* We found that it is standard industry practice to perform outdoor blasting of large objects that cannot fit easily inside an enclosure. We also found that many State laws allow dry abrasive blasting outdoors if performed on objects larger than 8 feet in any one dimension. It is not standard practice in metal fabrication and finishing facilities to enclose these processes and would be a significant cost to the facility to do so because of the large size of the objects, at approximately $110 million per ton of MFHAP removed. Because of the burden an enclosure requirement would entail for facilities that perform abrasive blasting of large objects, we propose the GACT requirement for objects greater than 8 feet in any dimension, where the blasting is performed outdoors, to be management practices that minimize MFHAP emissions, as follows:
(1)Do not perform blasting outside when wind velocity is greater than 25 mph;
(2)switch from high PM-emitting blast media (e.g., sand) to low PM-emitting blast media (e.g., steel shot, aluminum oxide), whenever practicable;
(3)do not blast substrates having coatings containing lead (>0.1 percent lead), unless enclosures, barriers, or other PM control methods are used to collect the lead particles;
(4)do not re-use the blast media unless contaminants (i.e., any material other than the base metal, such as paint residue) have been removed by filtration or screening so that the dry abrasive material conforms to its original size and makeup;
(5)keep work areas free of excess dust by regular sweeping or vacuuming to control the accumulation of dust and other particles; regular sweeping or vacuuming is defined to be sweeping or vacuuming conducted once per day, once per shift, or once per operation as needed, depending on the severity of dust generation;
(6)enclose dusty material storage areas and holding bins, seal chutes and conveyors; and
(7)operate all equipment according to manufacturer's instructions. 2. GACT for Dry Grinding and Dry Polishing With Machines We found that it is standard industry practice to capture PM emissions, as a surrogate for MFHAP, from dry grinding and dry polishing with machines, by the use of local exhaust, hoods, or other vacuum devices; and to collect the PM with filtration devices, such as cartridge filters. Facilities have reported that the indoor workplace would not be tolerable without these types of controls on dry grinding and dry polishing with machines. Therefore, we propose that GACT for dry grinding and dry polishing with machines would be the equipment standard of capture and control with filtration devices. We also propose management practices that are standard industry procedures and common “good housekeeping” practices in and around dusty processes, as follows:
(1)Keep work areas free of excess dust by regular sweeping or vacuuming to control the accumulation of dust and other particles; regular sweeping or vacuuming is defined to be sweeping or vacuuming conducted once per day, once per shift, or once per operation as needed, depending on the severity of dust generation; and
(2)operate all equipment used in dry grinding and dry polishing with machines according to manufacturer's instructions. 3. GACT for Machining The majority of the PM released by machining processes consists of large particles or metal shavings that fall immediately to the floor. Any MFHAP that is released would originate from the part or product being machined. We found that it is general industry practice to totally enclose the machining process and/or use lubricants or liquid coolants that do not allow small particles to escape. Therefore, we are proposing that GACT for machining is the following two management and pollution prevention practices:
(1)Keep work areas free of excess dust by regular sweeping or vacuuming to control the accumulation of dust and other particles; regular sweeping or vacuuming is defined to be sweeping or vacuuming conducted once per day, once per shift, or once per operation as needed, depending on the severity of dust generation; and
(2)operate all equipment used in machining operations according to manufacturer's instructions. 4. GACT for Spray Painting To Control MFHAP Emissions from spray painting include MFHAP from the paint pigments. Spray painting performed indoors at metal fabrication and finishing area sources is required by OSHA regulations to be performed in an enclosed spray paint booth. We found that these booths are typically equipped with filters for PM control, where PM is a surrogate for MFHAP. Because of the impracticality of enclosing very large objects in booths, we also found that it is common practice in the industry to spray paint large objects outside or in 2- or 3-sided structures. We found that the size of objects typically spray painted outside are approximately 15 feet in any one dimension. Therefore, we determined that there were two distinct sizes of products being painted that affected the manner in which the process was performed:
(1)Products greater than 15 feet in any dimension, and
(2)products less than or equal to 15 feet in any dimension. Accordingly, we developed GACT requirements for each of these two processes. The following describes our proposed GACT and the rationale for selecting the GACT requirements for these two processes. a. GACT Requirements for Control of MFHAP in Spray Painting Objects Greater Than 15 Feet in Any Dimension The GACT requirements in this proposed rule would require owners or operators of affected new and existing spray painting operations to comply with one equipment standard:
(1)Use of low-emitting and pollution preventing spray gun technology. The proposed rule also would require two management practices:
(1)Spray painter training; and
(2)spray gun cleaning. Spray Gun Technology Requirements—We are proposing that GACT for this proposed rule would require all affected new and existing facilities using spray-applied paints to use HVLP spray guns, electrostatic application, or airless spray techniques. Alternatively, an equivalent technology can be used if it is demonstrated to achieve transfer efficiency comparable to one of the spray gun technologies listed above for a comparable operation, and for which written approval has been obtained from the Administrator or delegated authority. Spray Painting Training Requirements—We are proposing that GACT for this proposed rule would require all workers that perform spray painting at affected new and existing facilities to be trained, with certification made available that this training has occurred. For the purposes of the proposed training requirements, the facility owner or operator may certify that their employees have completed training during “in-house” training programs. Also, facilities that can show by documentation or certification that a painter's work experience and/or training has resulted in training equivalent to the training described above would not be required to provide the initial training required for these painters. The training would need to address the following topics to reduce paint overspray, which has a direct effect on emissions reductions: Spray gun equipment selection, set up, and operation; spray technique for different types of paints to improve transfer efficiency and minimize paint usage and overspray; and routine spray booth and filter maintenance, including filter selection and installation. Spray painters have 180 days to complete training after hiring or transferring into a surface painting job from another job in the facility. The training and certification for this proposed rule would be valid for a period not to exceed 5 years after the date the training is completed. Spray Gun Cleaning Requirements—We are proposing that GACT for this proposed rule would require all paint spray gun cleaning operations at affected new and existing facilities to use an atomized mist or spray such that the gun cleaning solvent and paint residue is not created outside of the container that collects the used gun cleaning solvent. These gun cleaning methods include hand cleaning of parts, use of a fully enclosed spray gun washer, or a combination of these non-atomizing methods. Hand cleaning is considered equivalent to gun washers as long as the painters do not atomize cleaning solvent from the gun and the spent solvent is collected in a container that is closed when not in use. b. Rationale for GACT To Control MFHAP in Spray Painting Objects Greater Than 15 Feet in Any Dimension Some facilities paint large objects (greater than 15 feet) in open air or 2-sided buildings so that the objects can be moved in and out with cranes and other heavy equipment. It is not standard practice in metal fabrication and finishing facilities to enclose these operations in booths and would be a significant cost to the facility to do so because of the large size of the objects, at approximately $20 million per ton of MFHAP removed for large spray booths. However, in order to minimize paint waste and exposure of the worker to paint overspray, it is standard industry practice for facilities that spray paint large objects to use HVLP equivalent high transfer efficiency spray techniques even though they are not enclosing the paint operation and filtering the exhaust air. These HVLP spray painting technologies produce a 40 percent decrease in paint consumption and resultant emissions compared to conventional spray guns. Conventional high-pressure air-atomized spray guns have a typical transfer efficiency of about 30 percent while HVLP and other types of high-efficiency spraying use lower air pressures and achieve a transfer efficiency of about 50 percent, or greater, with appropriate operator training. The HVLP spray method we are proposing as GACT is a pollution prevention technology that is standard industry practice and reduces the amount of paint sprayed. The HVLP spray method reduces paint costs to the facility, reduces worker exposure to paint overspray, reduces clean-up requirements, and also reduces MFHAP emissions. Because of the burden an enclosure requirement would entail for facilities that paint large objects, we propose the equipment standard for GACT for these sources to be a requirement for HVLP spray gun use. We chose the size requirement for indoor spray painting at 15 feet based on industry information. We specifically request comment on our size cut-off on affected sources of this requirement. In addition, we are proposing management practices as GACT to ensure that workers are trained properly in the high efficiency spray painting techniques and that the spry equipment is washed in a way that minimizes atomization of the paint, which can cause MFHAP emissions to occur. The HVLP training and equipment cleaning procedures are common practice in this industry as well as other similar industries. To minimize the impact on small business, the facility owner or operator may perform this training during “in-house” training programs. Also, facilities can show that a painter's work experience and/or training have resulted in equivalent training and, therefore, would not be required to provide training at an external location for these painters. This proposed rule would require all paint spray gun cleaning operations at affected new and existing facilities to be performed such that the gun cleaning solvent and paint residue is not created outside of the container that collects the used gun cleaning solvent. These gun cleaning methods include hand cleaning of parts, use of a fully enclosed spray gun washer, or a combination of these non-atomizing methods. Hand cleaning is considered equivalent to gun washers as long as the painters do not atomize cleaning solvent from the gun and the spent solvent is collected in a container that is closed when not in use. Since facilities that do not currently have an automated gun washer can still comply with the proposed standards by cleaning guns by hand, we do not expect that sources would have any annualized capital costs or operating costs for spray gun cleaning. c. GACT Requirements for Control of MFHAP in Spray Painting Objects Equal To or Less Than 15 Feet in Any Dimension This proposed rule would require affected new and existing facilities that are spray painting objects less than or equal to 15 feet in any dimension to comply with two equipment standards:
(1)Use of low-emitting and pollution preventing spray gun technology, and
(2)use of spray booth PM filters. This proposed rule also would require two management practices:
(1)Spray painter training, and
(2)spray gun cleaning. Spray Booth PM Control Requirement—We are proposing that GACT for this proposed rule would require the surface preparation stations or spray booths of affected new and existing facilities to be fitted with fiberglass or polyester fiber filters or other comparable filter technology that can be demonstrated to achieve at least 98 percent control efficiency of paint overspray (also referred to as “arrestance”). As an alternative compliance option, spray booths may be equipped with a water curtain that achieves at least 98 percent control of MFHAP. The waterspray booths would be required to be operated and maintained according to the manufacturer's specifications. Spray Gun Technology Requirements—We are proposing that GACT for this proposed rule would require all affected new and existing facilities using spray-applied paints to use HVLP spray guns, electrostatic application, or airless spray techniques. Alternatively, an equivalent technology can be used if it is demonstrated to achieve transfer efficiency comparable to one of the spray gun technologies listed above for a comparable operation, and for which written approval has been obtained from the Administrator or delegated authority. Spray Painting Training Requirements—We are proposing that GACT for this proposed rule would require all workers that perform spray painting at affected new and existing facilities to be trained, with certification made available that this training has occurred. The training would need to address the following topics to reduce paint overspray, which has a direct effect on emissions reductions: Spray gun equipment selection, set up, and operation; spray technique for different types of paints to improve transfer efficiency and minimize paint usage and overspray; and routine spray booth and filter maintenance, including filter selection and installation. Spray painters have 180 days to complete training after hiring or transferring into a surface painting job from another job in the facility. For the purposes of the proposed training requirements, the facility owner or operator may certify that their employees have completed training during “in-house” training programs. Also, facilities that can show by documentation or certification that a painter's work experience and/or training has resulted in training equivalent to the training described above would not be required to provide the initial training required for their painters. The training and certification for this proposed rule would be valid for a period not to exceed 5 years after the date the training is completed. Spray Gun Cleaning Requirements—We are proposing that GACT for this proposed rule would require all paint spray gun cleaning operations at affected new and existing facilities to use an atomized mist or spray such that the gun cleaning solvent and paint residue is not created outside of the container that collects the used gun cleaning solvent. These gun cleaning methods include hand cleaning of parts, use of a fully enclosed spray gun washer, or a combination of these non-atomizing methods. Hand cleaning is considered equivalent to gun washers as long as the painters do not atomize cleaning solvent from the gun and the spent solvent is collected in a container that is closed when not in use. d. Rationale for GACT To Control MFHAP in Spray Painting Objects Equal To or Less Than 15 Feet in Any Dimension We are proposing that GACT for this process includes management practices and equipment standards. Our proposed GACT for this process includes the use of the pollution prevention spray painting technologies such as HVLP spray guns or their equivalent. These spray painting technologies produce a 40 percent decrease in paint consumption and resultant emissions compared to conventional spray guns. Conventional high-pressure air-atomized spray guns have a typical transfer efficiency of about 30 percent while HVLP and other types of high-efficiency spraying use lower air pressures and achieve a transfer efficiency of about 50 percent, or greater, with appropriate operator training. The HVLP spray method we are proposing as GACT is a pollution prevention technology that is standard industry practice in this industry as well as other similar industries, and reduces the amount of paint sprayed. The HVLP spray method reduces paint costs to the facility, reduces worker exposure to paint overspray, reduces clean-up requirements, and also reduces MFHAP emissions. In addition, we are proposing management practices as GACT to ensure that workers are trained properly in the high efficiency spray painting techniques and that the spray equipment is washed in a way that minimizes atomization of the paint, which can cause MFHAP emissions to occur. The HVLP training and equipment cleaning procedures are common practice in this industry as well as other similar industries. To minimize the impact on small business, the facility owner or operator may perform this training during “in-house” training programs. Also, facilities can show that a painter's work experience and/or training have resulted in equivalent training and, therefore, would not be required to provide training at an external location for their painters. We also propose that GACT for spray painting objects less than or equal to 15 feet is the use of a spray booth equipped with a high efficiency PM filter that removes MFHAP. OSHA already requires that all indoor spray painting be performed in an enclosed booth or room, with the exhaust vented through a filter. Therefore, upgrade of a spray booth to include a PM filter to control MFHAP is only a small change to the current process. The PM filters that remove MFHAP also are available at no significant additional cost. Based on our research, we estimate that only 20 percent of the current facilities that do spray painting are expected to require a change in their filter type to be able to control MFHAP and meet the proposed GACT. The costs of the MFHAP filters as well as the costs of high efficiency spray equipment and training are estimated to be offset by the reduced paint costs attributed to the use of high efficiency spray equipment, for those facilities where HVLP is not already in use. In addition, the use of high efficiency spray paint techniques reduces the amount of time the worker spends in painting, allowing the facility to use the worker for other operations or training, and thereby reducing labor costs. This proposed rule would require all paint spray gun cleaning operations at affected new and existing facilities to be performed such that the gun cleaning solvent and paint residue is not created outside of the container that collects the used gun cleaning solvent. These gun cleaning methods include hand cleaning of parts, use of a fully enclosed spray gun washer, or a combination of these non-atomizing methods. Hand cleaning is considered equivalent to gun washers as long as the painters do not atomize cleaning solvent from the gun and the spent solvent is collected in a container that is closed when not in use. Since facilities that do not currently have an automated gun washer can still comply with the proposed standards by cleaning guns by hand, we do not expect that sources would have any annualized capital costs or operating costs for spray gun cleaning. 5. GACT for Control of VOHAP Emissions From Spray Painting We are proposing to set GACT for VOHAP emissions from spray painting because the CAA, in § 112(k)(3)(C), provides us with the discretion to regulate these HAP in order to reduce the public health risk posed by the release of any HAP. We found that VOHAP emissions from painting were over 60 percent of the total HAP emissions from the metal fabrication and finishing area source categories in the 2002 EPA NEI and were over 30 times the MFHAP level. We also found that some facilities currently have State permits that allow them to emit high levels of VOHAP from their metal fabrication and finishing painting processes, although their actual emissions have historically been at lower levels. In this regard, we believe that in the time since data were collected for the 2002 NEI, most facilities have begun to use low-VOC and low-VOHAP paints that were developed as a result of a shift in market demand due to the recent paint and coating rules for other sources. Therefore, we are proposing a spray painting VOHAP content limit of 3.0 pound VOHAP per gallon painting solids as GACT, based on information received from the industry in the 2006 EPA survey and data acquired in previously promulgated EPA rules for other similar industries. A VOHAP limit will also ensure that any new sources will use paints that meet the same VOHAP level as the current industry practice. We specifically request comment on the appropriateness of this part of GACT for metal fabrication and finishing sources. The proposed GACT would require owners or operators of spray painting operations from affected sources that have the potential to emit VOHAP to use paints containing no more than 3.0 pounds VOHAP per gallon paint solids (0.36 kg/liter) on an annual (12-month) rolling average basis. We are proposing two methods of complying with this GACT standard. One option would require that all paints are demonstrated as meeting the VOHAP limit. The second option would require facilities to meet the VOHAP limit using a 12-month rolling weighted average. In this second option, some paints can be above the VOHAP limit as long as their use is balanced by other paints that are below the limit, such that the overall weighted average of all paints and their VOHAP content is calculated to be at or below the VOHAP limit that would be required by this proposed rule. The proposed GACT would also require owners or operators of new and existing spray painting operations that have the potential to emit VOHAP to comply with the following two management and pollution prevention practices:
(1)Minimize VOHAP emissions during mixing, storage, and transfer of paints; and
(2)keep paint and solvent lids tightly closed when not in use. 6. GACT for Welding Welding generates a small particle size metal fume (<5 μm) that is visible to the human eye at high enough concentrations and which contains MFHAP. Because of recent OSHA rulings to reduce the worker exposure to hexavalent chromium, a common component of most welding fumes, facilities may consider ventilating their welding processes areas beyond the previous levels so that the welding exhaust goes quickly and directly into the environment. Previous to the 2006 OSHA rule and at a lower ventilation rate, a large portion of the welding fumes would have collided with equipment and interior walls and would not have been exhausted outside. The amount of MFHAP emissions from welding is dependent on a variety of factors including welding techniques, amount of welding performed, and type of metal in the product being welded. In our research we found that welding operations at any one facility vary from day to day, and from product to product. We also found that a change from one type of welding process to another is not always technically possible for this industry as well as other similar industries. This is demonstrated by the fact that even at an individual facility, different types of welding and fume control strategies are in use. Thus, there is no one single method that is generally used to reduce welding fumes in this industry or other similar industries. Because heat is needed to melt the welding rod and form the welded joint during the welding process, moving and/or cooling high velocity air in the vicinity of the weld can be detrimental to its success. Therefore, small enclosures or vacuum systems with high exhaust rates close to the welding cannot be used to capture welding fumes. Another difficulty with local exhaust is the need to position and sometimes re-position the capture equipment to be most effective during the welding process without causing more fume to enter the breathing zone of the worker. We studied the practices of metal fabrication and finishing industry as well as other industries that use welding, and determined that control devices are usually used only as a last resort when process variables and/or products dictate a high fume-forming welding technique. In addition to the technical difficulty of using add-on controls for welding fumes, the control devices are not cost-effective for control of MFHAP and would impose a significant burden on the facilities in the metal fabrication and finishing industry. The estimated costs for use of add-on control equipment for welding is greater than $7 million per ton of MFHAP. Therefore, based on the above technical and cost issues, we are not proposing that GACT is the use of add-on control equipment. Most facilities have begun to use management and pollution prevention techniques to reduce welding fumes, since these practices are the most efficient and cost-effective way to protect their workers and meet the OSHA standards. Because of the difficulties with using control equipment for welding, we propose as GACT a set of management practices that minimize fume generation for welding, as practicable to the type of welding used or needed and the type of product being welded. We also propose that control systems with add-on control devices that achieve at least 85 percent control can be used as a compliance option instead of the management practices, since these control systems provide an equivalent control of MFHAP. The following are the management practices we are proposing as GACT for welding processes in the metal fabrication and finishing industries:
(a)Use low fume welding processes whenever practicable. These welding processes include but are not limited to: GMAW—also called MIG; GTAW—also called TIG; PAW; SAW; and all welding processes that do not use a consumable electrode.
(b)Use shielding gases, as practicable;
(c)Use an inert carrier gas, such as argon, as practicable to the type of welding used;
(d)Use low or no-HAP welding materials and substrates as much as practicable;
(e)Operate with a welding angle close to 90°, as practicable to the type of welding used and physical characteristics of the substrate;
(f)Optimize electrode diameter, as practicable;
(g)Operate with lower voltage and current, as practicable;
(h)Use low fume wires, as practicable;
(i)Optimize shield gas flow rate, as practicable;
(j)Use low or optimized torch speed, as practicable; and
(k)Use pulsed-current power supplies, as practicable. E. How did we select the compliance requirements? We are proposing notification, reporting, and recordkeeping requirements to ensure compliance with this proposed rule. We are requiring an Initial Notification and Notification of Compliance Status. These requirements are consistent with Section 63.9(h) of the General Provisions of this part. For demonstrating initial compliance, this proposed rule would require affected facilities to certify that the required management practices have been implemented and that all equipment associated with the processes is being properly operated and maintained. For demonstrating continuous compliance, the proposed requirements include annual certifications that the management practices are being followed and all equipment associated with the processes is being properly operated and maintained. This proposed rule specifies recordkeeping requirements in accordance with Section 63.10 of the General Provisions. These records are needed for EPA to determine compliance with specific rule requirements. Because MFHAP emissions from the metal fabrication and finishing sources are visible emissions, we are requiring visual emissions or opacity testing performed in a graduated schedule, from daily to weekly to monthly, to determine whether or not the process is in compliance for five of the nine standards described above: Two of the three process types of dry abrasive blasting (not to include dry abrasive blasting of objects less than or equal to 8 feet in completely enclosed chambers), machining, and dry grinding and dry polishing with machines, and welding. We believe that compliance with GACT using the graduated testing schedule for visual emissions and opacity will enable facilities with a low level of emissions to quickly reach a low frequency of testing thereby minimizing the impact of this proposed rule on lower emitting sources. On the other hand, facilities with higher levels of emissions may be required to prepare a SWMP and give careful thought to the pollution prevention management practices that can reduce emissions at their facility. The use of visual emissions or opacity testing, as opposed to emission testing, is a lower cost method to determine compliance that accommodates the different levels of activity that can occur from facility to facility, and from product to product and day to day within the same facility, so that there is not a large cost impact on small businesses. Under this proposed rule, each facility would prepare an annual compliance certification and keep it on site in a readily-accessible location. Facilities would be required to submit this annual compliance report only if there are any exceedences or deviations from the equipment and management practice requirements during the year, and would include these exceedence reports with their compliance report. We recognize that many of these facilities are small businesses; therefore we are requiring the submission of this annual compliance certification only if exceedences occur during the year so that there is not an undue economic burden on small businesses. We are proposing a 2-year period for existing facilities to achieve compliance. We believe the 2-year period provides sufficient time for facilities to identify their applicability to the rule and make any necessary changes to comply with the standards. All new area sources would be required to comply with this proposed rule on the date of publication of the final rule or upon startup, whichever is later. F. How did we decide to exempt this area source category from title V permitting requirements? We are proposing exemption from title V permitting requirements for affected facilities in the metal fabrication and finishing area source categories for the reasons described below. 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, in a national rulemaking, 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 (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 proposed NESHAP for the area source category, without relying on title V permits (70 FR 75326). In discussing these factors in the Exemption Rule, we further 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. We have determined that the proposed exemptions from title V would not adversely affect public health, welfare and the environment. Our rationale for this decision follows here. In considering the proposed exemption from title V requirements for sources in the category affected by this proposed rule, we first compared the title V monitoring, recordkeeping, and reporting requirements (factor one) to the requirements in this proposed NESHAP for the metal fabrication and finishing area source categories. EPA determined that the management practices currently used by metal fabrication and finishing facilities is GACT, and this proposed rule would require recordkeeping, which serves as monitoring and deviation reporting, to assure compliance with this NESHAP. The monitoring component of the first factor favors title V exemption because this proposed standard would provide for monitoring in the form of visible emissions and opacity testing and recordkeeping that would assure compliance with the requirements of this proposed rule. This proposed NESHAP would also require the preparation of annual compliance certification reports and submission of this report if there are any deviations during the year, which should call attention to those facilities in need of supervision to the State agency in the same way as a title V permit. Records would be required to ensure that the management practices are followed, including such records as results of the visual emissions and opacity tests, and spray painting training of the employees *.* As part of the first factor, we have considered the extent to which title V could potentially enhance compliance for area sources covered by this proposed rule through recordkeeping or reporting requirements. We have 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. For any affected metal fabrication and finishing facility, this proposed NESHAP would require an initial notification and a notification of compliance status. This proposed Metal Fabrication and Finishing NESHAP also would require affected facilities to maintain records showing compliance with the required equipment standard and management practices. The information that would be required in the notifications and records is similar to the information that would 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 have determined that the monitoring, recordkeeping, and reporting requirements of this proposed NESHAP for the metal fabrication and finishing source categories would be sufficient to assure compliance with the provisions of this NESHAP, and title V would not significantly improve those compliance requirements. For the second factor, we determine whether title V permitting would impose a significant burden on the area sources in the category 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 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. EPA does not have specific estimates for the burdens and costs of permitting the metal fabrication and finishing area sources; however, there are certain activities associated with the part 70 and 71 rules. These activities are mandatory and impose burdens on the facility. 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 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. 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 assessing the second factor for metal fabrication and finishing facilities, we found that over 90 percent of the approximately 5,800 metal fabrication and finishing facilities affected by this proposed rule are small businesses. These small sources lack the technical resources that would be needed to comply with permitting requirements and the financial resources that would be needed to hire the necessary staff or outside consultants. As discussed above, title V permitting would impose significant costs on these area sources, and, accordingly, we propose that title V would be a significant burden for sources in this category. More than 90 percent of the facilities that would be subject to this proposed rule are small businesses with limited resources, and under title V they would be subject to numerous mandatory activities with which they would have difficulty complying, whether they were issued a standard or a general permit. Furthermore, given the number of sources in the category and the relatively small size of many of those sources, it would likely be difficult for them to obtain assistance from the permitting authority. Thus, we believe that the second factor strongly supports the proposed title V exemption for metal fabrication and finishing facilities. 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 for the second factor that the costs of compliance with title V would impose a significant burden on nearly all of the approximately 5,800 metal fabrication and finishing facilities affected by this proposed rule. We also believe in considering the first factor that, while title V might impose additional requirements, the monitoring, recordkeeping and reporting requirements in the proposed NESHAP would assure compliance with the equipment standards and management practices imposed in the NESHAP. In addition, 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 so high, and the potential for gains in compliance is low, we propose that title V permitting is not justified for this source category. Accordingly, the third factor supports the proposed title V exemptions for metal fabrication and finishing area sources. The fourth factor we considered in determining if title V is unnecessarily burdensome is whether there are implementation and enforcement programs in place that are sufficient to assure compliance with the NESHAP without relying on title V permits. There are State programs in place to enforce this area source NESHAP, and we believe that the State programs will be sufficient to assure compliance with this NESHAP. We also note that EPA retains authority to enforce this NESHAP anytime under CAA sections 112, 113 and 114. We further 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. Also, States and EPA often conduct voluntary compliance assistance, outreach, and education programs (compliance assistance programs), which are not required by statute. These additional programs would supplement and enhance the success of compliance with this area source NESHAP. We believe that the statutory requirements for implementation and enforcement of this NESHAP by the delegated States and EPA, combined with the additional assistance programs would be sufficient to assure compliance with this area source NESHAP 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 NESHAP that we exempted, but that the States were also providing compliance assistance to assure that the area sources were in the best position to comply with the NESHAP. See 70 FR 75325-75326. In proposing this rule, we do 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 this NESHAP. See 70 FR 75326. In fact, States must have adequate programs to enforce the section 112 regulations and provide assurances that they will enforce all NESHAP before EPA will delegate the program. See 40 CFR part 63, General Provisions, subpart E. In light of all the information presented here, we believe that there are implementation and enforcement programs in place that are sufficient to assure compliance with the Metal Fabrication and Finishing NESHAP without relying on title V permitting. Balancing the four factors for this area source category strongly supports the proposed finding that title V is unnecessarily burdensome. While title V might add additional compliance requirements if imposed, we believe that there would not be significant improvements to the compliance requirements in the NESHAP because the requirements in this proposed rule are specifically designed to assure compliance with the standards and management practices imposed on this area source category. We further maintain that the economic and non-economic costs of compliance with title V, in conjunction with the likely difficulty this number of small sources would have obtaining assistance from the permitting authority, would impose a significant burden on the sources. In addition, the high relative costs would not be justified given that there is likely to be little or no potential gain in compliance if title V were required. And, finally, there are adequate implementation and enforcement programs in place to assure compliance with the NESHAP. Thus, we propose that title V permitting is “unnecessarily burdensome” for the metal fabrication and finishing 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 the metal fabrication and finishing area source categories from title V requirements would adversely affect public health, welfare, or the environment. Exemption of the metal fabrication and finishing 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 this category, 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 achieve compliance with the requirements. In this case, however, we do not believe that a title V permit is necessary to understand the requirements applicable to these area sources. We also have no reason to think that new sources would be substantially different from the existing sources. 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. Based on this analysis, we believe that title V exemptions for metal fabrication and finishing area sources would not adversely affect public health, welfare, or the environment for all of the reasons previously explained. For the reasons stated here, we are proposing to exempt the metal fabrication and finishing area source categories from title V permitting requirements. V. Impacts of the Proposed Standards A. What are the air impacts? Since 1990, the metal fabrication and finishing industry has reduced their air impacts by voluntary controls that were likely motivated by concerns for worker safety. These controls would have reduced approximately 122 tons of the MFHAP (cadmium, chromium, lead, manganese, and nickel) attributed to this industry in the 1990 urban HAP inventory. Although there are no additional air emission reductions as a result of this proposed rule, we believe that this proposed rule will assure that the emission reductions made by the industry since 1990 will be maintained. Along with the HAP described above, there is an undetermined amount of VOHAP and PM that has been co-controlled in the metal fabrication and finishing processes that contributed to criteria pollutant emissions in 1990. B. What are the cost impacts? For all metal fabrication and finishing processes except painting, all facilities are expected to be achieving the level of control required by the proposed standard. Therefore, no additional air pollution control devices or systems would be required. No capital costs are associated with this proposed rule, and no operational and maintenance costs are expected because facilities are already following the manufacturer's instructions for operation and maintenance of pollution control devices and systems. Many of the management practices required by this proposed rule are pollution prevention and have the co-benefit to provide a cost savings for facilities. The annual cost of monitoring, reporting, and recordkeeping for this proposed rule is estimated at approximately $735 per facility per year after the first year with an additional $385 per facility for one-time costs in the first year. While most of these facilities are small, the costs are expected to be approximately 0.01 percent of revenues. The annual estimate includes 2 hours per facility per year for preparing annual compliance reports. The annual estimate also includes an industry-wide average of 13 hours a year per facility for visible emissions monitoring of two buildings or sources. Although it is possible that some facilities would initially be required by this proposed rule to perform daily visual emissions or opacity testing, the graduated compliance test schedule of this proposed rule allows for decrease in frequency to once a month if visible emissions are not found. This monitoring schedule is reflected in our estimate. In the above estimated annual costs, we have included approximately 11,600 labor-hours among the 5,800 sources for exceedence reports and preparation of a SWMP. This estimate assumes that 80 percent of the facilities (4,640 facilities) will have no exceedences; 15 percent (870 facilities) will have one exceedence per year; 4 percent (232 facilities) will have two exceedences per year; and 1 percent (58 facilities) will have three exceedences per year and need to prepare an initial SWMP. The labor hours estimated for each exceedence report is 2 hours, 16 hours are estimated for preparation of the SWMP, and 0.25 hours for recording a test result. For subsequent years, facilities with a SWMP will only need to update their SWMP. The above analysis shows that we expect that the maximum number of exceedences per year for any facility would be three exceedences. According to the monitoring requirements for welding sources, which are the only metal fabrication and finishing sources that are not required to use add-on control devices, the second exceedence in any one year requires the facility to perform an EPA Method 9 opacity test to determine whether the exhaust from the process or building is less than or greater than 20 percent opacity. If the EPA Method 9 test shows an opacity greater than 20 percent, the facility would be required to prepare a SWMP to address the emission control strategy that the facility is planning for the future to minimize PM emissions from the process. We expect that the requirement to prepare a SWMP will cause the facility to initiate changes in the facility's management practices or use of add-on control equipment such that the facility will subsequently be able to meet the opacity or visible emission requirements in this proposed rule. Therefore, we expect no further exceedences by the facilities after being required to prepare a SWMP. We specifically invite comment on these assumptions for the proposed rule. The total number of labor hours included in this annual cost estimate includes 2 hours for preparation of the Initial Notification in the first year; 4 hours for preparation of the Notification of Compliance Status in the first year, and 2 hours for preparing the Annual Compliance Certification at the end of the year, for an industry-wide average estimate of 24 hours per facility in the first year, which include the 13 hours per facility for monitoring. In the second year, the estimated industry-wide average labor hours per facility falls to 18 hours, of which 13 hours are due to monitoring. We estimate that the proposed standards for spray painting VOHAP content will have no net annual cost to spray painting operations. The cost of lower VOHAP content paints has been reduced since the market for these paints has increased due to other paint and coating rules promulgated by EPA. Therefore, there is no additional cost estimated for lower VOHAP content paints required by this proposed rule. We estimate that the proposed standards for spray painting will have no net annual cost to spray painting operations. The initial cost of complying with these 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 may include purchase of improved spray booth filters, automated enclosed gun washers, HVLP spray guns, and painter training, if needed to comply with the proposed standards. However, spray painting processes are already required by OSHA standards to perform spray painting in a spray booth or similar enclosure, so theses costs would not be attributed to these proposed standards. Therefore, we have not estimated costs required to install spray booths to comply with the proposed standards. We specifically request comment on the appropriateness of this assumption for the metal fabrication and finishing industries. The proposed standards specify that certain types of filters have to be used on the spray booth exhaust to minimize MFHAP emissions, and these filters are not addressed by OSHA standards. Some spray painting facilities may need to replace their current filters for ones with higher control efficiency, but the higher efficiency filters are readily available and will not result in any additional cost. This proposed rule also would require all affected new and existing facilities to perform their paint spray gun cleaning operations such that gun cleaning solvent and paint residue is not created outside of the container and used gun cleaning solvent is collected. These gun cleaning methods include hand cleaning of parts, use of a fully enclosed spray gun washer, or a combination of these non-atomizing methods. Hand cleaning is considered equivalent to gun washers as long as the painters do not atomize cleaning solvent from the gun and the spent solvent is collected in a container that is closed when not in use. Since facilities that do not currently have an automated gun washer can still comply with the proposed standards by cleaning guns by hand, we do not expect that sources would have any annualized capital costs or operating costs for spray gun cleaning. We specifically request comment on this assumption. If spray gun washers are used, the annual costs for these washers would be offset by the 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. This proposed rule also requires that facilities certify that their painters have knowledge of the proper use of HVLP or equivalent equipment. However, facilities can show that a painter's work experience and/or training have resulted in equivalent training and, therefore, would not be necessarily required to provide training at an external location for these painters. In addition, this proposed rule permits facilities to perform hands-on or in-house training to meet the training requirements. Therefore, we believe that painter training costs would have a low impact on the affected facilities. The following discussion summarizes and further illustrates this point. 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 this proposed rule. Therefore, this proposed rule would not impose new training costs on these facilities that already participate in training. Second, facilities may perform training “in-house” or show that a painter's work experience and/or training have resulted in equivalent training and, therefore, would not be required to provide training at an external location for these painters. Third, the estimated training cost could be offset by reduced coating costs if the training results in reduced coating consumption. Data from the STAR® program 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 1 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. Fourth, all painting in the metal fabrication and finishing industries is not done by spraying. Many metal fabrication and finishing facilities perform painting by dip painting or other coating techniques that are not subject to the spray painting standards of this proposed rule. Therefore, spray painting training impacts would be lower than that estimated based on typical assumptions of the number of spray painters per facility. In summary, EPA estimates that the proposed requirements for surface coating operations would not result in any net increase in annual or capital costs from the control requirements for surface coating operations. We specifically request comment on this aspect of this proposed rule. Information on our cost impact estimates on the sources is available in the docket for this proposed rule. (See Docket Number EPA-HQ-OAR-2006-0306). C. What are the economic impacts? The only measurable costs attributable to these proposed standards are associated with the monitoring, recordkeeping, and reporting requirements. These proposed standards are estimated to impact a total of 5,800 area source facilities. We estimate that over 5,300 of these facilities are small entities. Our analysis indicates that this proposed rule would not impose a significant adverse impact on any facilities, large or small since these costs are approximately 0.01 percent of revenues. D. What are the non-air health, environmental, and energy impacts? No detrimental secondary impacts are expected to occur from the non-painting sources because all facilities are currently achieving the GACT level of control. No facilities would be required to install and operate new or additional control devices or systems, or install and operate monitoring devices or systems. No additional solid waste would be generated as a result of the PM emissions collected and there are no additional energy impacts associated with operation of control devices or monitoring systems for the non-painting sources. We expect no increase in generation of wastewater or other water quality impacts. None of the control measures considered for this proposed 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 This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the Executive Order. B. Paperwork Reduction Act The information collection 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 2298.01. The recordkeeping and reporting requirements in this proposed rule are based on the requirements in EPA's 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. This proposed NESHAP would require metal fabrication and finishing area sources to submit an Initial Notification and a Notification of Compliance Status according to the requirements in 40 CFR 63.9 of the General Provisions (subpart A). Records would be required to demonstrate compliance with operation and maintenance of capture and control devices, VOHAP content of paints, and other management practices. The owner or operator of a metal fabrication and finishing facility also is subject to notification and recordkeeping requirements in 40 CFR 63.9 and 63.10 of the General Provisions (subpart A). Annual compliance certifications and annual exceedence reports would be required instead of the semiannual excess emissions reports required by the NESHAP General Provisions. The annual burden for this information collection averaged over the first three years of this ICR is estimated to be a total of 35,268 labor hours per year at a cost of $1.1 million or approximately $580 per facility. The average annual reporting burden is six hours per response, with approximately three responses per facility for 1,933 respondents. The only costs attributable to these proposed standards are associated with the monitoring, recordkeeping, and reporting requirements. There are no capital, operating, maintenance, or purchase of services costs expected as a result of this proposed rule. Although it is possible that some facilities would initially be required by this proposed rule to record the results of daily visual emissions or opacity testing, the graduated compliance test schedule of this proposed rule allows for decrease in frequency to once a month if emissions are not found. Also, the requirement for preparation of a SWMP is expected to result in a maximum of three exceedences from 1 percent
(58)of the facilities because of the pollution prevention focus of the SWMP. Burden is defined at 5 CFR 1320.3(b). 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-2006-0306. 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 April 3, 2008, a comment to OMB is best assured of having its full effect if OMB receives it by May 5, 2008. 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 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 this 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, as defined by the Small Business Administration's
(SBA)regulations at 13 CFR 121.201;
(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 this proposed rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This proposed rule is estimated to impact a total of 5,800 area source metal fabrication and finishing facilities; over 5,300 of these facilities are estimated to be small entities. We have determined that small entity compliance costs, as assessed by the facilities' cost-to-sales ratio, are expected to be less than 0.01 percent. The analysis also shows that none of the small entities would incur economic impacts exceeding three percent of its revenue. Although this proposed rule contains requirements for new area sources, we are not aware of any new area sources being constructed now or planned in the next three years, and consequently, we did not estimate any impacts for new sources. 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 proposed rule on small entities. The standards represent practices and controls that are common throughout the sources engaged in metal fabrication and finishing. The standards also require minimal amount of recordkeeping and reporting needed to demonstrate and verify compliance. These standards were developed based on information obtained from small businesses in our surveys, consultation with small business representatives on the State and national level, and industry representatives that are affiliated with small businesses. We continue to be interested in the potential impacts of this 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 one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. 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 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. 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. This proposed rule imposes no requirements on tribal governments. 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 EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. This action is not subject to Executive Order 13045 because it is based solely on technology performance. H. Executive Order 13211 (Energy Effects) This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866. I. National Technology Transfer Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113 (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. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This proposed rulemaking involves technical standards. Therefore, the Agency conducted a search to identify potentially applicable VCS. However, we identified no such standards, and none were brought to our attention in comments. Therefore, EPA has decided to use EPA Methods 24 and 311 in this proposed rule. In addition, we are proposing to use 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 and to measure the control efficiency of paint overspray arrestors with spray-applied paintings. This method will enable owner/operators to determine their facility's compliance with the spray booth filter requirement of this proposed rule. We are also proposing to use two methods from the California South Coast Air Quality Management District: “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 HVLP, airless spray, or electrostatic spray. These methods will enable owner/operators to determine their facility's compliance with the HVLP requirement of this proposed rule. We also cite in this proposed rule three ASTM methods: ASTM Method D2697-03, “Standard Test Method for Volume Nonvolatile Matter in Clear or Pigmented Coatings,” and ASTM D6093-97 (Reapproved 2003), “Standard Test Method for Percent Volume Nonvolatile Matter in Clear or Pigmented Coatings Using a Helium Gas Pycnometer,” for determining the volume fraction of paint solids; and ASTM D1475-98, “Standard Test Method for Density of Liquid Coatings, Inks, and Related Products,” for determining the average density of volatile matter in the spray paints and coatings. In addition to the VCS already cited in this proposed rule, EPA Method 24 and 311 already incorporate VCS. The EPA Method 311 is a compilation of five VCS: ASTM D1979-91, ASTM D3432-89, ASTM D4747-87, ASTM D4827-93, and ASTM PS 9-94. The EPA Method 24 incorporates six VCS: ASTM D1475-90, ASTM D2369-95, ASTM D3792-91, ASTM D4017-96a, ASTM D4457-85 (Reapproved 1991), and ASTM D5403-93. 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 this regulation. Under § 63.7(f) and § 63.8(f) of subpart A of the General Provisions, 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. 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: March 20, 2008. 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. Section 63.14 is amended by revising paragraphs (b)(25) and (26), (d)(7) and (8), and (l)(1); and adding new paragraph (b)(66) to read as follows: § 63.14 Incorporations by reference.
(b)* * *
(25)ASTM D6093-97 (Reapproved 2003), Standard Test Method for Percent Volume Nonvolatile Matter in Clear or Pigmented Coatings Using a Helium Gas Pycnometer, IBR approved for §§ 63.3161(f)(1), 63.3521(b)(1), 63.3941(b)(1), 63.4141(b)(1), 63.4741(b)(1), 63.4941(b)(1), 63.5160(c), and 63.11516(e)(3)(ii)(A).
(26)ASTM D1475-98, Standard Test Method for Density of Liquid Coatings, Inks, and Related Products, IBR approved for §§ 63.3151(b), 63.3941(b)(4), 63.3941(c), 63.3951(c), 63.4141(b)(3), 63.4141(c), 63.4551(c), 63.11516(e)(3)(iii), 63.11516(e)(3)(iv), 63.11516(e)(4)(iii), and 63.11516(e)(4)(iv).
(66)ASTM D2697-03, Standard Test Method for Volume Nonvolatile Matter in Clear or Pigmented Coatings, IBR approved for § 63.11516(e)(3)(ii)(A).
(d)* * *
(7)California South Coast Air Quality Management District's “Spray Equipment Transfer Efficiency Test Procedure for Equipment User, May 24, 1989,” IBR approved for § 63.11173(e)(3) and § 63.11516(d)(2) of subpart XXXXXX of this part.
(8)California South Coast Air Quality Management District's “Guidelines for Demonstrating Equivalency with District Approved Transfer Efficient Spray Guns, September 26, 2002,” IBR approved for §§ 63.11173(e) and 63.11516(d)(2).
(l)* * *
(1)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,” IBR approved for §§ 63.11173(e)(2)(i) and 63.11516(d)(1)(ii). 3. Part 63 is amended by adding subpart XXXXXX consisting of §§ 63.11514 through 63.11523 and tables 1 through 4 to read as follows: Subpart XXXXXX—National Emission Standards for Hazardous Air Pollutants Area Source Standards for 9 Metal Fabrication and Finishing Source Categories Applicability and Compliance Dates Sec. 63.11514 Am I subject to this subpart? 63.11515 What are my compliance dates? Standards and Compliance Requirements 63.11516 What are my standards and management practices? 63.11517 What are my monitoring requirements? 63.11518 [Reserved] 63.11519 What are my notification, recordkeeping, and reporting requirements? 63.11520 [Reserved] Other Requirements and Information 63.11521 Who implements and enforces this subpart? 63.11522 What definitions apply to this subpart? 63.11523 What General Provisions sections apply to this subpart? Tables to Subpart XXXXXX Table 1 to Subpart XXXXXX of Part 63—Description of Source Categories Affected by This Subpart Table 2 to Subpart XXXXXX of Part 63—Default Organic HAP Mass Fraction for Solvents and Solvent Blends Table 3 to Subpart XXXXXX of Part 63—Default Organic HAP Mass Fraction for Petroleum Solvent Groups Table 4 to Subpart XXXXXX of Part 63—Applicability of General Provisions to Metal Fabrication or Finishing Area Sources Subpart XXXXXX—National Emission Standards for Hazardous Air Pollutants Area Source Standards for 9 Metal Fabrication and Finishing Source Categories Applicability and Compliance Dates § 63.11514 Am I subject to this subpart?
(a)You are subject to this subpart if you own or operate an area source of metal fabrication or finishing metal HAP (MFHAP), defined to be the compounds of cadmium, chromium, lead, manganese, and nickel, or a source of volatile organic HAP (VOHAP) from spray painting operations, which performs metal fabrication or finishing operations in one of the following nine source categories listed in paragraphs (a)(1) through
(9)of this section. Descriptions of these source categories are shown in Table 1 of this subpart.
(1)Electrical and Electronic Equipment Finishing Operations;
(2)Fabricated Metal Products;
(3)Fabricated Plate Work (Boiler Shops);
(4)Fabricated Structural Metal Manufacturing;
(5)Heating Equipment, except Electric;
(6)Industrial Machinery and Equipment: Finishing Operations;
(7)Iron and Steel Forging;
(8)Primary Metal Products Manufacturing; and
(9)Valves and Pipe Fittings.
(b)The provisions of this subpart apply to each new and existing affected source listed and defined in paragraphs (b)(1) through
(5)of this section at all times.
(1)A dry abrasive blasting metal fabrication or finishing affected source is the collection of all equipment and activities necessary to perform dry abrasive blasting operations, which use MFHAP or perform metal fabrication or finishing operations that have the potential to emit MFHAP.
(2)A machining metal fabrication or finishing affected source is the collection of all equipment and activities necessary to perform machining metal fabrication or finishing operations which use MFHAP or perform metal fabrication or finishing operations that have the potential to emit MFHAP.
(3)A dry grinding and dry polishing with machines metal fabrication or finishing affected source is the collection of all equipment and activities necessary to perform dry grinding and dry polishing with machines metal fabrication or finishing operations which use MFHAP or perform metal fabrication or finishing operations that have the potential to emit MFHAP.
(4)A spray painting metal fabrication or finishing affected source is the collection of all equipment and activities necessary to perform spray-applied painting operations on metal substrates using paints which contain VOHAP or MFHAP. A spray painting metal fabrication or finishing affected source includes all equipment used to apply cleaning materials to a substrate to prepare it for paint application (surface preparation) or to remove dried paint; to apply a paint to a substrate (paint application) and to dry or cure the paint after application; or to clean paint operation equipment (equipment cleaning). If you are subject to the provisions of this subpart, you are not subject to the provisions of subpart HHHHHH of this part, National Emission Standards for Hazardous Air Pollutants: Paint Stripping and Miscellaneous Surface Coating Operations at Area Sources, for affected source(s) subject to the requirements of paragraphs (b)(1) through
(5)of this section.
(5)A welding metal fabrication or finishing affected source is the collection of all equipment and activities necessary to perform welding operations which use MFHAP, or perform metal fabrication or finishing operations that have the potential to emit MFHAP.
(c)An affected source is existing if you commenced construction or reconstruction of the affected source, as defined in § 63.2, “General Provisions” to part 63, before April 3, 2008.
(d)An affected source is new if you commenced construction or reconstruction of the affected source, as defined in § 63.2, “General Provisions” to part 63, on or after April 3, 2008.
(e)This subpart does not apply to research or laboratory facilities, as defined in section 112(c)(7) of the Clean Air Act (CAA).
(f)This subpart does not apply to tool or equipment repair operations, or facility maintenance as defined in § 63.11522, “Definitions.”
(g)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. § 63.11515 What are my compliance dates?
(a)If you own or operate an existing affected source, you must achieve compliance with the applicable provisions in this subpart within two years of the date of publication of the final rule in the **Federal Register** , except for spray painter training required by § 63.11516(d)(8), “Standards for control of MFHAP in spray painting.”
(b)If you start up a new affected source after the date of publication of the final rule in the **Federal Register** , you must achieve compliance with the provisions in this subpart upon startup of your affected source. Standards and Compliance Requirements § 63. 11516 What are my standards and management practices?
(a)*Dry abrasive blasting metal fabrication or finishing standards.* If you own or operate a new or existing dry abrasive blasting metal fabrication or finishing affected source you must comply with the requirements in paragraphs (a)(1) through
(3)of this section, as applicable.
(1)*Standards for dry abrasive blasting of objects less than or equal to 8 feet in any one dimension, performed in totally enclosed and unvented blast chambers.* If you own or operate a new or existing dry abrasive blasting metal fabrication or finishing affected source which consists of an abrasive blasting chamber that is totally enclosed and unvented, as defined in § 63.11522, “Definitions,” you must implement management practices to minimize emissions of MFHAP. These management practices are the practices specified in paragraph (a)(1)(i) of this section. You must demonstrate that management practices are being implemented by complying with the requirements in paragraphs (a)(1)(ii) through
(iv)of this section.
(i)Management practices for totally enclosed and unvented abrasive blasting chamber affected sources are to:
(A)Minimize dust generation during emptying of abrasive blasting enclosures; and
(B)Operate all equipment associated with dry abrasive blasting operations according to the manufacturer's instructions.
(ii)You must perform visual determinations of fugitive emissions as specified in § 63.11517(b), “Monitoring Requirements,” in close proximity to the total enclosed and unvented dry abrasive blasting chamber.
(iii)You must keep a record of all visual determinations of fugitive emissions along with any corrective actions taken in accordance with the requirements in § 63.11519(c)(2), “Notification, recordkeeping, and reporting requirements.”
(iv)If visible fugitive emissions are detected, you must comply with the requirements in paragraphs (a)(1)(iv)(A) and
(B)of this section.
(A)Perform corrective actions as needed until the visible emissions are eliminated, at which time you must perform a follow-up inspection for visible emissions in accordance with § 63.11517(a), “Monitoring Requirements.” Corrective actions include, but are not limited to, inspection and repositioning of the blasting chamber, adjusting the blasting mechanism, and repairing leaks.
(B)Report all instances when visible emissions are detected, along with the corrective actions taken and the results of subsequent follow-up determinations for visible emissions, along with your annual compliance report, as required by § 63.11519(b)(5), “Notification, recordkeeping, reporting requirements.”
(2)*Standards for dry abrasive blasting of objects less than or equal to 8 feet in any one dimension, performed in vented enclosures.* If you own or operate a new or existing dry abrasive blasting metal fabrication or finishing affected source which consists of a dry abrasive blasting operation which has a vent allowing any air or blast material to escape, you must comply with the requirements in paragraphs (a)(2)(i) through
(v)of this section. As an alternative, dry abrasive blasting operations for which the items to be blasted exceed 8 feet (2.4 meters) in any dimension, may be performed outdoors, subject to the requirements in paragraph (a)(3) of this section.
(i)You must capture emissions and vent them to a filtration control device. You must demonstrate compliance with this requirement by maintaining a record of the manufacturer's specifications for the capture and control devices, as specified by the requirements in § 63.11519(c)(4), “Notification, recordkeeping, and reporting requirements.” If you control emissions with a device other than a filtration device, you must establish that the alternate control device is at least equivalent, according to § 63.6(g) of the “General Provisions” to part 63.
(ii)You must implement the management practices to minimize emissions of MFHAP as specified in paragraphs (a)(2)(ii)(A) through
(C)of this section.
(A)You must keep work areas free of excess MFHAP material by sweeping or vacuuming dust once per day, once per shift, or once per operation, as needed depending on the severity of dust generation; and
(B)You must enclose dusty material storage areas and holding bins, seal chutes and conveyors; and
(C)You must operate all equipment associated with dry abrasive blasting operations according to manufacturer's instructions.
(iii)To demonstrate that management practices are being implemented, you must perform visual determinations of fugitive emissions as specified in § 63.11517(b), “Monitoring Requirements,” at the outlet of the vent or stack to which the dry abrasive blasting operation and any control system are vented.
(iv)You must keep a record of all visual determinations of fugitive emissions along with any corrective action taken in accordance with the requirements in § 63.11519(c)(2), “Notification, recordkeeping, and reporting requirements.”
(v)If visible fugitive emissions are detected, perform corrective actions as needed until the visible fugitive emissions are eliminated, at which time you must comply with the requirements in paragraphs (a)(2)(v)(A) and
(B)of this section.
(A)Perform a follow-up inspection for visible fugitive emissions in accordance with § 63.11517(a), “Monitoring Requirements.” Corrective actions include, but are not limited to, inspecting and replacing filters; and inspecting, repairing, and/or correcting enclosure and exhaust air flow, so that the enclosure air is directed into the filtration device.
(B)Report all instances where visible emissions are detected, along with any corrective action taken and the results of subsequent follow-up inspections for visible emissions, along with your annual compliance report, as required by § 63.11519(b)(5), “Notification, recordkeeping, and reporting requirements.”
(3)*Standards for dry abrasive blasting of objects greater than 8 feet in any one dimension.* If you own or operate a new or existing dry abrasive blasting metal fabrication or finishing affected source which consists of a dry abrasive blasting operation which is performed outdoors, you must implement management practices to minimize emissions of MFHAP as specified in paragraph (a)(3)(i) of this section. You must demonstrate that management practices are being implemented by complying with the requirements in paragraphs (a)(3)(ii) through
(iv)of this section.
(i)Management practices for outdoor dry abrasive blasting metal fabrication or finishing affected sources are the practices specified in paragraphs (a)(3)(i)(A) through
(G)of this section.
(A)Keep work areas free of excess MFHAP material by sweeping or vacuuming dust once per day, once per shift, or once per operation, as needed depending on the severity of dust generation; and
(B)Enclose dusty material storage areas and holding bins, seal chutes and conveyors; and
(C)Operate all equipment associated with dry abrasive blasting operations according to manufacturer's instructions; and
(D)No dry abrasive blasting shall be performed during a wind event, as defined in § 63.11522, “Definitions;” and
(E)No dry abrasive blasting shall be performed on substrates having paints containing lead (greater than 0.1 percent lead) unless enclosures or barriers are employed, or similar precautions are taken to collect the lead-bearing emissions or prevent them from being dispersed; and
(F)Dry abrasive blasting media shall not be re-used unless contaminants (i.e., any material other than the base metal, such as paint residue) have been removed by filtration or screening, and the abrasive material conforms to its original size; and
(G)Whenever practicable, switch from high particulate matter (PM)-emitting blast media (e.g., sand) to low PM-emitting blast media (e.g., steel shot, aluminum oxide.), where PM is a surrogate for MFHAP.
(ii)You must perform visual determinations of fugitive emissions, as specified in § 63.11517(b), “Monitoring Requirements,” at the fenceline or property border nearest to the outdoor dry abrasive blasting operation.
(iii)Keep a record of all visual determinations of fugitive emissions along with any corrective action taken in accordance with the requirements in § 63.11519(c)(2), “Notification, recordkeeping, and reporting requirements.”
(iv)If visible fugitive emissions are detected, perform corrective actions until the visible fugitive emissions are eliminated, at which time you must comply with the requirements in paragraphs (a)(3)(iv)(A) and
(B)of this section.
(A)Perform a follow-up inspection for visible fugitive emissions in accordance with § 63.11517(a), “Monitoring Requirements.”
(B)Report all instances where visible emissions are detected, along with any corrective action taken and the results of subsequent follow-up inspections for visible emissions, along with your annual compliance report as required by § 63.11519(b)(5), “Notification, recordkeeping, and reporting requirements.”
(b)*Standards for machining.* If you own or operate a new or existing machining metal fabrication or finishing affected source, you must implement management practices to minimize emissions of MFHAP as specified in paragraph (b)(1) of this section. You must demonstrate that management practices are being implemented by complying with the requirements in paragraphs (b)(2) through
(4)of this section.
(1)Machining affected sources must comply with the management practices specified in paragraphs (b)(1)(i) and
(ii)of this section.
(i)Keep work areas free of excess MFHAP material by sweeping or vacuuming once per day, once per shift, or once per operation, as needed depending on the severity of dust generation; and
(ii)Operate all equipment associated with machining according to manufacturer's instructions.
(2)You must perform visual determinations of fugitive emissions, as specified in § 63.11517(b), “Monitoring Requirements,” at an exit or opening of the building containing the machining metal fabrication or finishing operation.
(3)You must keep a record of all visual determinations of fugitive emissions along with any corrective action taken in accordance with the requirements in § 63.11519(c)(2), “Notification, recordkeeping, and reporting requirements.”
(4)If visible fugitive emissions are detected, perform corrective actions until the visible fugitive emissions are eliminated, at which time you must comply with the requirements in paragraphs (b)(4)(i) and
(ii)of this section.
(i)You must perform a follow-up inspection for visible fugitive emissions in accordance with § 63.11517(a), “Monitoring Requirements.”
(ii)You must report all instances where visible emissions are detected, along with any corrective action taken and the results of subsequent follow-up inspections for visible emissions, along with your annual compliance report as required by § 63.11519(b)(5), “Notification, recordkeeping, and reporting requirements.”
(c)*Standards for dry grinding and dry polishing with machines.* If you own or operate a new or existing dry grinding and dry polishing with machines metal fabrication or finishing affected source, you must comply with the requirements of paragraphs (c)(1) through
(5)of this section.
(1)You must capture emissions and vent them to a filtration control device. You must demonstrate compliance with this requirement by maintaining a record of the manufacturer's specifications for the capture and control devices, as specified by the requirements in § 63.11519(c)(4), “Notification, recordkeeping, and reporting requirements.” If you control emissions with a device other than a filtration device, you must establish that the alternate control device is at least equivalent, according to § 63.6(g) of the “General Provisions” to part 63.
(2)You must implement management practices to minimize emissions of MFHAP as specified in paragraphs (c)(2)(i) and
(ii)of this section.
(i)Keep work areas free of excess MFHAP material by sweeping or vacuuming once per day, once per shift, or once per operation, as needed depending on the severity of dust generation;
(ii)Operate all equipment associated with the operation of dry grinding and dry polishing with machines, including the emission control system, according to manufacturer's instructions.
(3)To demonstrate that the management practices are being implemented, you must perform visual determinations of fugitive emissions, as specified in § 63.11517(b), “Monitoring Requirements,” at an exit or opening of the building containing the dry grinding and dry polishing with machines.
(4)You must keep a record of all visual determinations of fugitive emissions along with any corrective action taken in accordance with the requirements in § 63.11519(c)(2), “Notification, recordkeeping, and reporting Requirements.”
(5)If visible fugitive emissions are detected, perform corrective actions until the visible fugitive emissions are eliminated, at which time you must comply with the requirements in paragraphs (c)(5)(i) and
(ii)of this section. Corrective actions include, but are not limited to, inspecting and replacing filters; inspecting, repairing, and/or correcting the operation of the emission capture equipment and air flow into the capture system; and increasing the capture efficiency.
(i)You must perform a follow-up inspection for visible fugitive emissions in accordance with § 63.11517(a), “Monitoring Requirements.”
(ii)You must report all instances where visible emissions are detected, along with any corrective action taken and the results of subsequent follow-up inspections for visible emissions, along with your annual compliance report as required by § 63.11519(b)(5), “Notification, recordkeeping, and reporting requirements.”
(d)*Standards for control of MFHAP in spray painting.* If you own or operate a new or existing spray painting metal fabrication or finishing affected source, as defined in § 63.11522, “Definitions,” you must implement the management practices in paragraphs (d)(1) through
(9)of this section.
(1)*Standards for spray painting objects less than or equal to 15 feet in any dimension for MFHAP control.* All paints applied via spray-applied painting to objects which do not exceed 15 feet (4.57 meters) in any dimension, must be applied in a spray booth or preparation station that meets the requirements of paragraphs (d)(1)(i) through
(iii)of this section.
(i)Spray booths and preparation stations must have a full roof, at least two complete walls, and one or two complete side curtains or other barrier material so that all four sides are covered. The spray booths must be ventilated so that air is drawn into the booth and leaves only through the filter. The roof may contain narrow slots for connecting fabricated products to overhead cranes, and/or for cords or cables.
(ii)All spray booths, preparation stations, and mobile enclosures must be fitted with a type of filter technology that is demonstrated to achieve at least 98 percent capture of MFHAP. The procedure used to demonstrate filter efficiency must be consistent with 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” (incorporated by reference, see § 63.14 of subpart A of this part). The test coating for measuring filter efficiency shall be a high solids bake enamel delivered at a rate of at least 135 grams per minute from a conventional (non-HVLP) air-atomized spray gun operating at 40 pounds per square inch
(psi)air pressure; the air flow rate across the filter shall be 150 feet per minute. Owners and operators may use published filter efficiency data provided by filter vendors to demonstrate compliance with this requirement and are not required to perform this measurement.
(iii)You must perform regular inspection and replacement of the filters in all spray booths, preparation stations, and mobile enclosures according to manufacturer instructions, and maintain documentation of these activities, as detailed in § 63.11519(c)(5), “Notification, recordkeeping, and reporting requirements.”
(iv)As an alternative compliance requirement, spray booths equipped with a water curtain, called “waterwash” or “waterspray” booths that are operated and maintained according to the manufacturer's specifications and that achieve at least 98 percent control of MFHAP, may be used in lieu of the spray booths requirements of paragraphs (d)(1)(i) through
(iii)of this section.
(2)*Standards for spray painting of all objects for MFHAP control* . All paints applied via spray-applied painting must be applied with a high-volume, low-pressure
(HVLP)spray gun, electrostatic application, airless spray gun, air-assisted airless spray gun, or an equivalent technology that is demonstrated to achieve transfer efficiency comparable to one of these spray gun technologies for a comparable operation, 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” (incorporated by reference, see § 63.14 of subpart A of this part).
(3)*Spray system recordkeeping* . You must maintain documentation of the HVLP or other high transfer efficiency spray paint delivery methods, as detailed in § 63.11519(c)(6), “Notification, recordkeeping, and reporting requirements.”
(4)*Spray gun cleaning* . All cleaning of paint spray guns must be done with either non-HAP gun cleaning solvents, or in such a manner that an atomized mist of spray of gun cleaning solvent and paint residue is not created outside of a container that collects used gun cleaning solvent. Spray gun cleaning may be done with, for example, hand cleaning of parts of the disassembled gun in a container of solvent, by flushing solvent through the gun without atomizing the solvent and paint residue, or by using a fully enclosed spray gun washer. A combination of these non-atomizing methods may also be used.
(5)*Spray painting worker certification* . All workers performing painting must be certified that they have completed training in the proper spray application of paints and the proper setup and maintenance of spray equipment. The minimum requirements for training and certification are described in paragraph (d)(6) of this section. The spray application of paint is prohibited by persons who are not certified as having completed the training described in paragraph (d)(6) of this section. The requirements of this paragraph do not apply to the students of an accredited painting training program who are under the direct supervision of an instructor who meets the requirements of this paragraph. The requirements of this paragraph do not apply to operators of robotic or automated painting operations.
(6)*Spray painting training program content* . Each owner or operator of an affected spray painting metal fabrication or finishing affected source must ensure and certify that all new and existing personnel, including contract personnel, who spray apply paints are trained in the proper application of paints as required by paragraph (d)(5) of this section. The training program must include, at a minimum, the items listed in paragraphs (d)(6)(i) through
(iii)of this section.
(i)A list of all current personnel by name and job description who are required to be trained;
(ii)Hands-on, or in-house or external classroom instruction that addresses, at a minimum, initial and refresher training in the topics listed in paragraphs (d)(6)(ii)(A) through
(D)of this section.
(A)Spray gun equipment selection, set up, and operation, including measuring coating viscosity, selecting the proper fluid tip or nozzle, and achieving the proper spray pattern, air pressure and volume, and fluid delivery rate.
(B)Spray technique for different types of paints to improve transfer efficiency and minimize paint usage and overspray, including maintaining the correct spray gun distance and angle to the part, using proper banding and overlap, and reducing lead and lag spraying at the beginning and end of each stroke.
(C)Routine spray booth and filter maintenance, including filter selection and installation.
(D)Environmental compliance with the requirements of this subpart.
(iii)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. Alternatively, owners and operators who can show by documentation or certification that a painter's work experience and/or training has resulted in training equivalent to the training required in paragraph (d)(6)(ii) of this section are not required to provide the initial training required by that paragraph to these painters.
(7)*Records of spray painting training* . You must maintain records of employee training certification for use of HVLP or other high transfer efficiency spray paint delivery methods as detailed in § 63.11519(c)(7), “Notification, recordkeeping, and reporting requirements.”
(8)*Spray painting training dates* . As required by paragraph (d)(5) of this section, all new and existing personnel at an affected spray painting metal fabrication or finishing affected source, including contract personnel, who spray apply paints must be trained by the dates specified in paragraphs (d)(8)(i) and
(ii)of this section.
(i)If your source is a new source, all personnel must be trained and certified no later than 180 days after hiring or no later than 180 days after April 3, 2008, whichever is later. Training that was completed within 5 years prior to the date training is required, and that meets the requirements specified in paragraph (d)(6)(ii) of this section satisfies this requirement and is valid for a period not to exceed 5 years after the date the training is completed.
(ii)If your source is an existing source, all personnel must be trained and certified no later than 60 days after hiring or no later than 6 months after April 3, 2008, whichever is later. Worker training that was completed within 5 years prior to the date training is required, and that meets the requirements specified in paragraph (d)(6)(ii) of this section satisfies this requirement and is valid for a period not to exceed 5 years after the date the training is completed.
(9)*Duration of training validity* . 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.
(e)*Standards for VOHAP from spray painting* . For a new or existing spray painting metal fabrication or finishing affected source, as defined in § 63.11522, “Definitions,” you must comply with the limits specified in either paragraph (e)(1) or (e)(2) of this section. You must demonstrate these limits are being implemented by complying with the requirements in paragraph (e)(3) or (e)(4) of this section, as applicable. You must also implement the management practices specified in paragraph (e)(5) of this section to minimize VOHAP emissions from mixing and storage.
(1)*Paint VOHAP content limit option* . Limit the VOHAP content of all paints applied via spray applied coating operations to no more than 3 pounds of volatile organic HAP per gallon (lb/gal) (0.36 kg/l) paint solids, in accordance with paragraphs (e)(1)(i) through
(iii)of this section.
(i)You may use the VOHAP content limit option for any individual painting operation, for any group of painting operations in the affected source, or for all the painting operations in the affected source.
(ii)You may not use any thinner and/or other additive that contains VOHAP as determined according to paragraph (e)(3)(i) of this section.
(iii)You must use the procedures in this section on each paint, thinner and/or other additive in the condition it is in when it is received from its manufacturer or supplier and prior to any alteration.
(iv)You do not need to determine the VOHAP content of paints, thinners and/or other additives that are reclaimed on-site (or reclaimed off-site if you have documentation showing that you received back the exact same materials that were sent off-site) and reused in the painting operation for which you use the VOHAP content limit option, provided these materials in their condition as received were demonstrated to comply with the VOHAP content limit option.
(2)*Weighted-average paint VOHAP content limit option* . Limit the VOHAP content of the total mass of paints applied via spray-applied coating operations to no more than 3 lb/gal (0.36 kg/l) paint solids on a 12-month rolling weighted-average basis.
(3)*Compliance with paint VOHAP content limit option* . If you comply with the VOHAP content limit in paragraph (e)(1) of this section, you must demonstrate compliance by complying with the requirements in paragraphs (e)(3)(i) through
(vi)of this section.
(i)*Determine the mass fraction of VOHAP* . You must determine the mass fraction of VOHAP for each paint, thinner and/or other additive used during the compliance period by using one of the options in paragraphs (e)(3)(i)(A) through
(E)of this section.
(A)*Information from the supplier or manufacturer of the material* . You may rely on information other than that generated by the test methods specified in paragraphs (e)(3)(i)(B) through
(E)of this section, such as manufacturer's formulation data or material safety data sheets (MSDS), if it represents each VOHAP that is present at 0.1 percent by mass or more for Occupational Safety and Health Administration (OSHA)—defined carcinogens as specified in 29 CFR 1910.1200(d)(4) and at 1.0 percent by mass or more for other compounds. For example, if toluene (not an OSHA carcinogen) is 0.5 percent of the material by mass, you do not have to count it. For reactive adhesives in which some of the HAP react to form solids and are not emitted to the atmosphere, you may rely on manufacturer's data that expressly states the VOHAP or volatile matter mass fraction emitted. If there is a disagreement between such information and results of a test conducted according to paragraphs (e)(3)(i)(B) through
(D)of this section, then the test method results will take precedence unless, after consultation, you demonstrate to the satisfaction of the enforcement agency that the formulation data are correct.
(B)*Method 311* . You may use EPA Method 311 (appendix A to 40 CFR part 63, “Test Methods”) for determining the mass fraction of VOHAP. Use the procedures specified in paragraphs (e)(3)(i)(B)( *1* ) and ( *2* ) of this section when performing an EPA Method 311 test. ( *1* ) Count each VOHAP that is measured to be present at 0.1 percent by mass or more for OSHA-defined carcinogens as specified in 29 CFR 1910.1200(d)(4) and at 1.0 percent by mass or more for other compounds. For example, if toluene (not an OSHA carcinogen) is measured to be 0.5 percent of the material by mass, you do not have to count it. Express the mass fraction of each VOHAP you count as a value truncated to four places after the decimal point (e.g., 0.3791). ( *2* ) Calculate the total mass fraction of VOHAP in the test material by adding up the individual VOHAP mass fractions and truncating the result to three places after the decimal point (e.g., 0.763).
(C)*Method 24* . For paints, as defined in § 63.11522, “Definitions,” you may use EPA Method 24 (appendix A to 40 CFR part 60, “Test Methods”) to determine the mass fraction of nonaqueous volatile matter and use that value as a substitute for mass fraction of VOHAP. For reactive adhesives in which some of the HAP react to form solids and are not emitted to the atmosphere, you may use the alternative method contained in appendix A to subpart PPPP (Plastic Parts NESHAP) of this part, rather than EPA Method 24. You may use the volatile fraction that is emitted, as measured by the alternative method in appendix A to subpart PPPP (Plastic Parts NESHAP) of this part, as a substitute for the mass fraction of VOHAP.
(D)*Alternative method* . You may use an alternative test method for determining the mass fraction of VOHAP once the Administrator has approved it. You must follow the procedure in § 63.7(f) to submit an alternative test method for approval.
(E)*Solvent blends* . Solvent blends may be listed as single components for some materials in data provided by manufacturers or suppliers. Solvent blends may contain VOHAP which must be counted toward the total VOHAP mass fraction of the materials. When test data and manufacturer's data for solvent blends are not available, you may use the default values for the mass fraction of VOHAP in these solvent blends listed in Table 2 or 3 to this subpart. If you use the tables, you must use the values in Table 2 for all solvent blends that match Table 2 entries according to the instructions for Table 2, and you may use Table 2 only if the solvent blends in the materials you use do not match any of the solvent blends in Table 2 and you know only whether the blend is aliphatic or aromatic. However, if the results of an EPA Method 311 test indicate higher values than those listed on Table 2 or 3 to this subpart, the EPA Method 311 results will take precedence unless, after consultation, you demonstrate to the satisfaction of the enforcement agency that the formulation data are correct.
(ii)*Determine the volume fraction of paint solids* . You must determine the volume fraction of paint solids (liters
(gal)of paint solids per liter
(gal)of paint) for each paint used during the compliance period by a test, by calculation, or by information provided by the supplier or the manufacturer of the material, using one of the options in paragraphs (e)(3)(ii)(A) through
(C)of this section. If test results obtained according to paragraph (e)(3)(ii)(A) of this section do not agree with the information obtained under paragraph (e)(3)(ii)(B) or
(C)of this section, the test results will take precedence unless, after consultation, you demonstrate to the satisfaction of the enforcement agency that the formulation data are correct.
(A)ASTM Method D2697-03 or ASTM Method D6093-97 (Reapproved 2003). You may use ASTM Method D2697-03, “Standard Test Method for Volume Nonvolatile Matter in Clear or Pigmented Coatings” (incorporated by reference, see § 63.14), or ASTM Method D6093-97 (Reapproved 2003), “Standard Test Method for Percent Volume Nonvolatile Matter in Clear or Pigmented Coatings Using a Helium Gas Pycnometer” (incorporated by reference, see § 63.14), to determine the volume fraction of paint solids for each paint. Divide the nonvolatile volume percent obtained with the methods by 100 to calculate volume fraction of paint solids.
(B)*Alternative method* . You may use an alternative test method for determining the solids content of each coating once the Administrator has approved it. You must follow the procedure in § 63.7(f) to submit an alternative test method for approval.
(C)*Information from the supplier or manufacturer of the material.* You may obtain the volume fraction of paint solids for each paint from the supplier or manufacturer.
(iii)*Calculation of volume fraction of paint solids.* You may determine the volume fraction of paint solids using Equation 1 of this section: EP03AP08.000 Where: V <sup>s</sup> = Volume fraction of paint solids, liters
(gal)paint solids per liter
(gal)paint. m = Total volatile matter content of the paint, including HAP, volatile organic compounds (VOC), water, and exempt compounds, determined according to EPA Method 24, grams volatile matter per liter paint. D <sup>avg</sup> = Average density of volatile matter in the paint, grams volatile matter per liter volatile matter, determined from test results using ASTM Method D1475-98, “Standard Test Method for Density of Liquid Coatings, Inks, and Related Products” (incorporated by reference, see § 63.14), information from the supplier or manufacturer of the material, or reference sources providing density or specific gravity data for pure materials. If there is disagreement between ASTM Method D1475-98 test results and other information sources, the test results will take precedence unless, after consultation you demonstrate to the satisfaction of the enforcement agency that the formulation data are correct.
(iv)*Determine the density of each paint.* Determine the density of each paint used during the compliance period from test results using ASTM Method D1475-98, “Standard Test Method for Density of Liquid Coatings, Inks, and Related Products” (incorporated by reference, see § 63.14), information from the supplier or manufacturer of the material can be used, or specific gravity data for pure chemicals. If there is disagreement between ASTM Method D1475-98 test results and the supplier's or manufacturer's information, the test results will take precedence unless, after consultation you demonstrate to the satisfaction of the enforcement agency that the formulation data are correct.
(v)*Determine the VOHAP content of each paint.* Calculate the VOHAP content, kg
(lb)of VOHAP emitted per liter
(gal)paint solids used, of each paint used during the compliance period using Equation 2 of this section: EP03AP08.001 Where: H c = Organic HAP content of the paint, kg organic HAP emitted per liter
(gal)paint solids used. D c = Density of paint, kg paint per liter
(gal)paint, determined according to paragraph (e)(3)(iv) of this section. W c = Mass fraction of organic HAP in the paint, kg organic HAP per kg paint, determined according to paragraph (e)(3)(i) of this section. V s = Volume fraction of paint solids, liter
(gal)paint solids per liter
(gal)paint, determined according to paragraph (e)(3)(ii) of this section.
(vi)*Compliance demonstration for paint VOHAP content limit option.* To demonstrate continuous compliance, you must comply with the requirements in paragraphs (e)(3)(vi)(A) through
(D)of this section.
(A)The calculated VOHAP content for each paint used must be less than or equal to the applicable HAP content limit in paragraph (e)(1) of this section, and each thinner and/or other additive used must contain no VOHAP, determined according to paragraph (e)(3)(i) of this section.
(B)You must keep all records required by § 63.11519(c)(8) and (9), “Notification, recordkeeping, and reporting requirements.”
(C)As part of the notification of compliance status required in § 63.11519(a)(2), “Notification, recordkeeping, and reporting requirements,” you must identify the paint operation(s) for which you used the VOHAP content limit option and submit a statement that the paint operation(s) was
(were)in compliance with the HAP content limit because you used no paints for which the VOHAP content exceeded the applicable limit in paragraph (e)(1) of this section, and you used no thinners and/or other additives that contained VOHAP, determined according to the procedures in paragraphs (e)(3)(i) through
(v)of this section.
(D)If at any time the calculated VOHAP content for any paint exceeded the applicable limit in paragraph (e)(1) of this section, or any thinner and/or other additive used contained any VOHAP, this is an exceedence of the limitation for that compliance period and must be reported as specified in § 63.11519(b)(8)(i), “Notification, recordkeeping, and reporting requirements.”
(4)*Compliance with weighted-average paint VOHAP content limit option.* If you comply with the weighted-average VOHAP content in paragraph (e)(2) of this section, you must demonstrate compliance by complying with the requirements in paragraphs (e)(4)(i) through
(ix)of this section. When calculating the weighted-average VOHAP content according to this section, do not include any paints, thinners and/or other additives used on painting operations for which you use the HAP content limit option of paragraph (e)(1) of this section. You do not need to determine the mass of VOHAP in paints, thinners and/or other additives that have been reclaimed on-site (or reclaimed off-site if you have documentation showing that you received back the exact same materials that were sent off-site) and reused in the painting operation. If you use paints, thinners and/or other additives that have been reclaimed on-site, the amount of each used in a month may be reduced by the amount of each that is reclaimed. That is, the amount used may be calculated as the amount consumed to account for materials that are reclaimed.
(i)*Mass fraction of VOHAP.* Determine the mass fraction of VOHAP for each paint, thinner and/or other additive used during each month according to the requirements in paragraph (e)(3)(i) of this section.
(ii)*Volume fraction of paint solids.* Determine the volume fraction of paint solids for each paint used during each month according to the requirements in paragraph (e)(3)(ii) of this section.
(iii)*Density of materials.* Determine the density of each liquid paint, thinner and/or other additive used during each month from test results using ASTM Method D1475-98, “Standard Test Method for Density of Liquid Coatings, Inks, and Related Products” (incorporated by reference, see § 63.14), information from the supplier or manufacturer of the material, or reference sources providing density or specific gravity data for pure materials. If there is disagreement between ASTM Method D1475-98 test results and other such information sources, the test results will take precedence unless, after consultation you demonstrate to the satisfaction of the enforcement agency that the formulation data are correct. If you purchase materials or monitor consumption by weight instead of volume, you do not need to determine material density. Instead, you may use the material weight in place of the combined terms for density and volume in Equations 3A, 3B, and 4 of this section.
(iv)*Volume of materials.* Determine the volume of each paint, thinner and/or other additive used during each month by measurement or usage records. If you purchase materials or monitor consumption by weight instead of volume, you do not need to determine the volume of each material used. Instead, you may use the material weight in place of the combined terms for density and volume in Equations 3A and 3B of this section.
(v)*Mass of VOHAP.* The mass of VOHAP is the combined mass of VOHAP contained in all paints, thinners and/or other additives used during each month minus the VOHAP in certain waste materials. Calculate the mass of VOHAP using Equation 3 of this section. EP03AP08.002 Where: H e = Total mass of organic HAP used during the month, kg. A = Total mass of organic HAP in the paints used during the month, kg, as calculated in Equation 3A of this section. B = Total mass of organic HAP in the thinners and/or other additives used during the month, kg, as calculated in Equation 3B of this section. R w = Total mass of organic HAP in waste materials sent or designated for shipment to a hazardous waste treatment, storage, and disposal facility
(TSDF)for treatment or disposal during the month, kg, determined according to paragraph (e)(4)(vi) of this section. (You may assign a value of zero to R w if you do not wish to use this allowance.) Calculate the mass VOHAP in the paints used during the month using Equation 3A of this section: EP03AP08.003 Where: A = Total mass of organic HAP in the paints used during the month, kg. Vol = Total volume of paint, i, used during the month, liters. D <sup>c</sup> = Density of paint, i, kg paint per liter paint. W <sup>c</sup> = Mass fraction of organic HAP in paint, i, kg organic HAP per kg paint. For reactive adhesives as defined in § 63.11522, “Definitions,” use the mass fraction of organic HAP that is emitted as determined using the method in appendix A to subpart PPPP of this part. m = Number of different paints used during the month. Calculate the mass of VOHAP in the thinners and/or other additives used during the month using Equation 3B of this section: EP03AP08.004 Where: B = Total mass of organic HAP in the thinners and/or other additives used during the month, kg. Vol <sup>t, j</sup> = Total volume of thinner and/or other additive, j, used during the month, liters. D <sup>t, j</sup> = Density of thinner and/or other additive, j, kg per liter. W <sup>t, j</sup> = Mass fraction of organic HAP in thinner and/or other additive, j, kg organic HAP per kg thinner and/or other additive. For reactive adhesives as defined in § 63.11522, “Definitions,” use the mass fraction of organic HAP that is emitted as determined using the method in appendix A to subpart PPPP of this part. n = Number of different thinners and/or other additives used during the month.
(vi)*HAP in waste materials.* If you choose to account for the mass of VOHAP contained in waste materials sent or designated for shipment to a hazardous waste TSDF in Equation 3 of this section, then you must determine the mass according to paragraphs (e)(4)(vi)(A) through
(D)of this section.
(A)You may only include waste materials in the determination that are generated by painting operations in the affected source for which you use Equation 3 of this section and that will be treated or disposed of by a facility that is regulated as a TSDF under 40 CFR part 262, 264, 265, or 266. The TSDF may be either off-site or on-site. You may not include VOHAP contained in wastewater.
(B)You must determine either the amount of the waste materials sent to a TSDF during the month or the amount collected and stored during the month and designated for future transport to a TSDF. Do not include in your determination any waste materials sent to a TSDF during a month if you have already included them in the amount collected and stored during that month or a previous month.
(C)Determine the total mass of VOHAP contained in the waste materials specified in paragraph (e)(4)(vi)(A) of this section.
(D)You must document the methodology you use to determine the amount of waste materials and the total mass of VOHAP they contain, as required in § 63.11519(c)(9)(viii), “Notification, recordkeeping, and reporting requirements.” If waste manifests include this information, they may be used as part of the documentation of the amount of waste materials and mass of VOHAP contained in them.
(vii)*Paint solids.* Determine the total volume of paint solids used, in liters, which is the combined volume of paint solids for all the paints used during each month, using Equation 4 of this section: EP03AP08.005 Where: V <sup>st</sup> = Total volume of paint solids used during the month, liters. Vol <sup>c, i</sup> = Total volume of paint, i, used during the month, liters. V <sup>s, i</sup> = Volume fraction of paint solids for paint, i, liter solids per liter paint, determined according to paragraph (e)(3)(ii) of this section. m = Number of paints used during the month.
(viii)*Weighted-average VOHAP Content.* Calculate the weighted-average VOHAP content for all the paints used in the compliance period, in kg
(lb)VOHAP emitted per liter
(gal)paint solids used, using Equation 5 of this section: EP03AP08.006 Where: H <sup>yr</sup> = Weighted-average organic HAP content of all paints used in the compliance period, kg VOHAP per liter paint solids used. H <sup>e</sup> = Total mass of organic HAP from all materials used during month, y, kg, as calculated by Equation 3 of this section. V <sup>st</sup> = Total volume of paint solids used during month, y, liters, as calculated by Equation 4 of this section. y = Identifier for months. n = Number of months in the compliance period (n equals 12).
(ix)*Compliance demonstration for weighted-average paint VOHAP content limit option.* To demonstrate continuous compliance, you must comply with the requirements in paragraphs (e)(4)(ix)(A) through
(F)of this section.
(A)Calculate the weighted-average VOHAP content for each compliance period using Equation 5 of this section. A compliance period consists of 12 months. Each month is the end of a compliance period consisting of that month and the preceding 11 months. You must perform the calculations in paragraph (e)(4) of this section on a monthly basis using data from the previous 12 months of operation.
(B)If the weighted-average VOHAP content of the total mass of paints applied via spray-applied coating operations for any 12-month compliance period exceeded the applicable VOHAP content limit in paragraph (e)(2) of this section this is an exceedence of the VOHAP content limitation for that compliance period and must be reported as specified in § 63.11519(b)(8)(ii), “Notification, recordkeeping, and reporting requirements.”
(C)As part of the notification of compliance status required by § 63.11519(a)(2), “Notification, recordkeeping, and reporting requirements,” you must include a list of processes that will comply with the weighted-average VOHAP content limit option, in accordance with paragraph (e)(2) of this section.
(D)As part of each annual compliance report required by § 63.11519(b)(1), “Notification, recordkeeping, and reporting requirements,” you must include a list of the rolling 12-month monthly calculated values of the VOHAP content calculated according to paragraph (e)(4)(viii) of this section, for each month for which 11 previous consecutive months of data are available. Thus, for the first annual report, no monthly VOHAP content will be reported, for the second, monthly VOHAP content will be reported for a portion of the year, and for subsequent reports, a full year (12 months) of monthly VOHAP content will be reported.
(E)As part of each annual compliance report required by § 63.11519(b)(1), “Notification, recordkeeping, and reporting requirements,” you must identify the painting operation(s) for which you used the weighted-average VOHAP content limit option. If there were no exceedences of the VOHAP content limitations, you must submit a statement that the painting operation was in compliance with the VOHAP content limit during the reporting period because the VOHAP content for each compliance period was less than or equal to the applicable VOHAP limit in paragraph (e)(2) of this section, determined according to paragraph (e)(4) of this section.
(F)You must maintain records as specified in § 63.11519(c)(8) and (9), “Notification, recordkeeping, and reporting requirements.”
(5)You must implement the management practices described in paragraphs (e)(5)(i) through
(v)of this section to minimize VOHAP emissions from mixing and storage.
(i)All VOHAP-containing paints, thinners and/or other additives, cleaning materials, and waste materials must be stored in closed containers.
(ii)Spills of VOHAP-containing paints, thinners and/or other additives, cleaning materials, and waste materials must be minimized.
(iii)VOHAP-containing paints, thinners and/or other additives, cleaning materials, and waste materials must be conveyed from one location to another in closed containers or pipes.
(iv)Mixing vessels which contain VOHAP-containing paints and other materials must be closed except when adding to, removing, or mixing the contents.
(v)Emissions of VOHAP must be minimized during cleaning of storage, mixing, and conveying equipment.
(f)*Standards for welding.* If you own or operate a new or existing welding metal fabrication or finishing affected source, you must comply with the requirements in paragraphs (f)(1) and
(2)of this section. You must demonstrate that management practices or fume control measures are being implemented by complying with the requirements in paragraphs (f)(3) through
(8)of this section.
(1)You must operate all equipment, capture, and control devices associated with welding operations according to manufacturer's instructions. You must demonstrate compliance with this requirement by maintaining a record of the manufacturer's specifications for the capture and control devices, as specified by the requirements in § 63.11519(c)(4), “Notification, recordkeeping, and reporting requirements.”
(2)You must implement management practices, as practicable, to minimize emissions of MFHAP as specified in paragraphs (f)(2)(i) through
(xi)of this section. Alternatively, you may use a welding fume control system that achieves at least 85 percent overall control of MFHAP, and operate this equipment according to the manufacturer's specifications.
(i)Use low fume welding processes whenever possible. These welding processes include but are not limited to: Gas metal arc welding (GMAW)—also called metal inert gas welding (MIG); gas tungsten arc welding (GTAW)—also called tungsten inert gas (TIG); plasma arc welding (PAW); submerged arc welding (SAW); and all welding processes that do not use a consumable electrode.
(ii)Use shielding gases, as appropriate to the type of welding used;
(iii)Use an inert carrier gas, such as argon, as appropriate to the type of welding used;
(iv)Use low or no-HAP welding materials and substrates;
(v)Operate with a welding angle close to 90°;
(vi)Optimize electrode diameter;
(vii)Operate with lower voltage and current;
(viii)Use low fume wires, as appropriate to the type of welding used;
(ix)Optimize shield gas flow rate, as applicable to the type of welding used;
(x)Use low or optimized torch speed; and
(xi)Use pulsed-current power supplies, as appropriate to the type of welding used.
(3)*Tier 1 compliance requirements for welding.* You must perform visual determinations of welding fugitive emissions as specified in § 63.11517(b), “Monitoring requirements,” at the primary vent, stack, exit, or opening from the building containing the welding metal fabrication or finishing operations. You must keep a record of all visual determinations of fugitive emissions along with any corrective action taken in accordance with the requirements in § 63.11519(c)(2), “Notification, recordkeeping, and reporting requirements.”
(4)*Requirements upon initial detection of visible emissions from welding.* If visible fugitive emissions are detected during any visual determination required in paragraph (f)(3) of this section, you must comply with the requirements in paragraphs (f)(4)(i) and
(ii)of this section.
(i)Perform corrective actions that include, but are not limited to, inspection of welding fume sources, and evaluation of the proper operation and effectiveness of the management practices or fume control measures implemented in accordance with paragraph (f)(2) of this section. After completing such corrective actions, you must perform a follow-up inspection for visible fugitive emissions in accordance with § 63.11517(a), “Monitoring Requirements,” at the primary vent, stack, exit, or opening from the building containing the welding metal fabrication or finishing operations.
(ii)Report all instances where visible emissions are detected, along with any corrective action taken and the results of subsequent follow-up inspections for visible emissions, and submit with your annual compliance report as required by § 63.11519(b)(5), “Notification, recordkeeping, and reporting requirements.”
(5)*Tier 2 requirements upon subsequent detection of visible emissions.* If visible fugitive emissions are detected more than once during any consecutive 12-month period (notwithstanding the results of any follow-up inspections), you must comply with paragraphs (f)(5)(i) through
(iv)of this section.
(i)Within 24 hours of the end of the visual determination of fugitive emissions in which visible fugitive emissions were detected, you must conduct a visual determination of emissions opacity, as specified in § 63.11517(c), “Monitoring requirements,” at the primary vent, stack, exit, or opening from the building containing the welding metal fabrication or finishing operations.
(ii)In lieu of the requirement of paragraph (f)(3) of this section to perform visual determinations of fugitive emissions with EPA Method 22, you must perform visual determinations of emissions opacity in accordance with § 63.11517(d), “Monitoring Requirements,” using EPA Method 9, at the primary vent, stack, exit, or opening from the building containing the welding metal fabrication or finishing operations.
(iii)You must keep a record of each visual determination of emissions opacity performed in accordance with paragraphs (f)(5)(i) or
(ii)of this section, along with any subsequent corrective action taken, in accordance with the requirements in § 63.11519(c)(3), “Notification, recordkeeping, and reporting requirements.”
(iv)You must report the results of all visual determinations of emissions opacity performed in accordance with paragraphs (f)(5)(i) or
(ii)of this section, along with any subsequent corrective action taken, and submit with your annual compliance report as required by § 63.11519(b)(6), “Notification, recordkeeping, and reporting requirements.”
(6)*Requirements for opacities less than 20 percent.* For each visual determination of emissions opacity performed in accordance with paragraph (f)(5) of this section for which the average of the six-minute average opacities recorded is less than 20 percent, you must perform corrective actions, including inspection of all welding fume sources, and evaluation of the proper operation and effectiveness of the management practices or fume control measures implemented in accordance with paragraph (f)(2) of this section.
(7)*Tier 3 requirements for opacities exceeding 20 percent.* For each visual determination of emissions opacity performed in accordance with paragraph (f)(5) of this section for which the average of the six-minute average opacities recorded exceeds 20 percent, you must comply with the requirements in paragraphs (f)(7)(i) through
(v)of this section.
(i)You must submit a report of exceedence of 20 percent opacity, along with your annual compliance report, as specified in § 63.11519(b)(8)(iii), “Notification, recordkeeping, and reporting requirements,” and according to the requirements of § 63.11519(b)(1), “Notification, recordkeeping, and reporting requirements.”
(ii)Within 30 days of the opacity exceedence, you must prepare and implement a Site-Specific Welding Emissions Management Plan, as specified in paragraph (f)(8) of this section. If you have already prepared a Site-Specific Welding Emissions Management Plan in accordance with this paragraph, you must prepare and implement a revised Site-Specific Welding Emissions Management Plan within 30 days.
(iii)During the preparation (or revision) of the Site-Specific Welding Emissions Management Plan, you must continue to perform daily visual determinations of emissions opacity as specified in § 63.11517(c), “Monitoring Requirements,” using EPA Method 9, at the primary vent, stack, exit, or opening from the building containing the welding metal fabrication or finishing operations.
(iv)You must maintain records of daily visual determinations of emissions opacity performed in accordance with paragraph (f)(7)(iii) of this section, during preparation of the Site-Specific Welding Emissions Management Plan, in accordance with the requirements in § 63.11519(b)(9), “Notification, recordkeeping, and reporting requirements.”
(v)You must include these records in your annual compliance report, according to the requirements of § 63.11519(b)(1), “Notification, recordkeeping, and reporting requirements.”
(8)*Site-Specific Welding Emissions Management Plan.* The Site-Specific Welding Emissions Management Plans must comply with the requirements in paragraphs (f)(8)(i) through
(iii)of this section.
(i)Site-Specific Welding Emissions Management Plans must contain the information in paragraphs (f)(8)(i)(A) through
(F)of this section.
(A)Company name and address;
(B)A list and description of all welding operations which currently comprise the welding metal fabrication or finishing affected source;
(C)A description of all management practices and/or fume control methods in place at the time of the opacity exceedence;
(D)A list and description of all management practices and/or fume control methods currently employed for the welding metal fabrication or finishing affected source;
(E)A description of additional management practices and/or fume control methods to be implemented pursuant to paragraph (f)(7)(ii) of this section, and the projected date of implementation; and
(F)Any revisions to a Site-Specific Welding Emissions Management Plan must contain copies of all previous plan entries, pursuant to paragraphs (f)(8)(i)(D) and
(E)of this section.
(ii)The Site-Specific Welding Emissions Management Plan must be updated annually to contain current information, as required by paragraphs (f)(8)(i)(A) through
(C)of this section, and submitted with your annual compliance report, according to the requirements of § 63.11519(b)(1), “Notification, recordkeeping, and reporting requirements.”
(iii)You must maintain a copy of the current Site-Specific Welding Emissions Management Plan in your records in a readily-accessible location for inspector review, in accordance with the requirements in § 63.11519(c)(11), “Notification, recordkeeping, and reporting requirements.” § 63. 11517 What are my monitoring requirements?
(a)*Visual determination of fugitive emissions, general* . Visual determination of fugitive emissions must be performed according to the procedures of EPA Method 22, of 40 CFR part 60, appendix A. You must conduct the EPA Method 22 test while the affected source is operating under normal conditions. The duration of each EPA Method 22 test must be at least 15 minutes, and visible emissions will be considered to be present if they are detected for more than six minutes of the fifteen minute period.
(b)*Visual determination of fugitive emissions, graduated schedule* . Visual determinations of fugitive emissions must be performed in accordance with paragraph
(a)of this section and according to the schedule in paragraphs (b)(1) through
(3)of this section.
(1)*Daily Method 22 Testing* . Perform visual determination of fugitive emissions once per day, on each day the process is in operation, during operation of the process.
(2)*Weekly Method 22 Testing* . If no visible fugitive emissions are detected in consecutive daily EPA Method 22 tests, performed in accordance with paragraph (b)(1) of this section for 10 days of work day operation of the process, you may decrease the frequency of EPA Method 22 testing to once per every five days of operation of the process. If visible fugitive emissions are detected during these tests, you must resume EPA Method 22 testing of that operation once per day during each day that the process is in operation, in accordance with paragraph (b)(1) of this section.
(3)*Monthly Method 22 Testing* . If no visible fugitive emissions are detected in four consecutive weekly EPA Method 22 tests performed in accordance with paragraph (b)(2) of this section, you may decrease the frequency of EPA Method 22 testing to once per 21 days of operation of the process. If visible fugitive emissions are detected during these tests, you must resume weekly EPA Method 22 in accordance with paragraph (b)(2) of this section.
(c)*Visual determination of emissions opacity for welding Tier 2 or 3, general* . Visual determination of emissions opacity must be performed in accordance with the procedures of EPA Method 9, of appendix A of part 60, and while the affected source is operating under normal conditions. The duration of the EPA Method 9 test shall be thirty minutes.
(d)*Visual determination of emissions opacity for welding Tier 2 or 3, graduated schedule* . You must perform visual determination of emissions opacity in accordance with paragraph
(c)of this section and according to the schedule in paragraphs (d)(1) through
(4)of this section.
(1)*Daily Method 9 testing for welding, Tier 2 or 3* . Perform visual determination of emissions opacity once per day during each day that the process is in operation.
(2)*Weekly Method 9 testing for welding, Tier 2 or 3* . If the average of the six minute opacities recorded during any of the daily consecutive EPA Method 9 tests performed in accordance with paragraph (d)(1) of this section does not exceed 20 percent for 10 days of operation of the process, you may decrease the frequency of EPA Method 9 testing to once per five days of consecutive work day operation. If opacity greater than 20 percent is detected during any of these tests, you must resume testing every day of operation of the process according to the requirements of paragraph (d)(1) of this section.
(3)*Monthly Method 9 testing for welding Tier 2 or 3* . If the average of the six minute opacities recorded during any of the consecutive weekly EPA Method 9 tests performed in accordance with paragraph (d)(2) of this section does not exceed 20 percent for four consecutive weekly tests, you may decrease the frequency of EPA Method 9 testing to once per every 21 days of operation of the process. If visible emissions opacity greater than 20 percent is detected during any monthly test, you must resume testing every five days of operation of the process according to the requirements of paragraph (d)(2) of this section.
(4)*Return to Method 22 testing for welding, Tier 2 or 3* . If, after two consecutive months of testing, the average of the six minute opacities recorded during any of the monthly EPA Method 9 tests performed in accordance with paragraph (d)(3) of this section does not exceed 20 percent, you may resume monthly EPA Method 22 testing as in paragraph (f)(2) of this section. In lieu of this, you may elect to continue performing monthly EPA Method 9 tests in accordance with paragraph (d)(3) of this section. § 63.11518 [Reserved] § 63.11519 What are my notification, recordkeeping, and reporting requirements?
(a)*What notifications must I submit?*
(1)*Initial Notification* . If you are the owner or operator of a metal fabrication or finishing operation as defined in § 63.11514 “Am I subject to this subpart?,” you must submit the Initial Notification required by § 63.9(b) “General Provisions,” for a new affected source no later than 120 days after initial startup or August 1, 2008, whichever is later. For an existing affected source, you must submit the Initial Notification no later than April 3, 2009. Your Initial Notification must provide the information specified in paragraphs (a)(1)(i) through
(iv)of this section.
(i)The name, address, phone number and e-mail address of the owner and operator;
(ii)The address (physical location) of the affected source;
(iii)An identification of the relevant standard (i.e., this subpart); and
(iv)A brief description of the type of operation. For example, a brief characterization of the types of products (e.g., aerospace components, sports equipment, etc.), the number and type of processes, and the number of workers usually employed.
(2)*Notification of compliance status* . If you are the owner or operator of an existing metal fabrication or finishing affected source, you must submit a notification of compliance status on or before June 2, 2010. If you are the owner or operator of a new metal fabrication or finishing affected source, you must submit a notification of compliance status within 120 days after initial startup, or by August 1, 2008, whichever is later. You are required to submit the information specified in paragraphs (a)(2)(i) through
(iii)of this section with your notification of compliance status:
(i)Your company's name and address;
(ii)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;
(iii)If you operate any spray painting affected sources, the information required by § 63.11516(e)(3)(vi)(C), “Compliance demonstration,” or § 63.11516(e)(4)(ix)(C), “Compliance demonstration,” as applicable; and
(iv)The date of the notification of compliance status.
(b)*What reports must I prepare or submit?*
(1)*Annual compliance reports* . You must prepare annual compliance reports for each affected source according to the requirements of paragraphs (b)(2) through
(7)of this section. The annual compliance reporting requirements may be satisfied by reports required under other parts of the CAA, as specified in paragraph (b)(3) of this section. These reports do not need to be submitted unless an exceedence of the requirements of this subpart has occurred. In this case, the annual compliance report must be submitted along with the exceedence reports.
(2)*Dates* . Unless the Administrator has approved or agreed to a different schedule for submission of reports under § 63.10(a), “General Provisions,” you must prepare and, if applicable, submit each annual compliance report according to the dates specified in paragraphs (b)(2)(i) through
(iii)of this section. Note that the information reported for each of the months in the reporting period will be based on the last 12 months of data prior to the date of each monthly calculation.
(i)The first annual compliance report must cover the first annual reporting period which begins the day after the compliance date and ends on December 31.
(ii)Each subsequent annual compliance report must cover the subsequent semiannual reporting period from January 1 through December 31.
(iii)Each annual compliance report must be prepared no later than January 31 and kept in a readily-accessible location for inspector review. If an exceedence has occurred during the year, each annual compliance report must be submitted along with the exceedence reports, and postmarked or delivered no later than January 31.
(3)*Alternate dates* . For each affected source that is subject to permitting regulations pursuant to 40 CFR part 70 or 40 CFR part 71, “Title V.”
(i)If the permitting authority has established dates for submitting annual reports pursuant to 40 CFR 70.6(a)(3)(iii)(A) or 40 CFR 71.6(a)(3)(iii)(A), “Title V,” you may prepare or submit, if required, the first and subsequent compliance reports according to the dates the permitting authority has established instead of according to the date specified in paragraph (b)(2)(iii) of this section.
(ii)If an affected source prepares or submits an annual compliance report pursuant to this section along with, or as part of, the monitoring report required by 40 CFR 70.6(a)(3)(iii)(A) or 40 CFR 71.6(a)(3)(iii)(A), “Title V,” and the compliance report includes all required information concerning exceedences of any limitation in this subpart, its submission will be deemed to satisfy any obligation to report the same exceedences in the annual monitoring report. However, submission of an annual compliance report shall not otherwise affect any obligation the affected source may have to report deviations from permit requirements to the permitting authority.
(4)*General requirements* . The annual compliance report must contain the information specified in paragraphs (b)(4)(i) through
(iii)of this section, and the information specified in paragraphs (b)(5) through
(7)of this section that is applicable to each affected source.
(i)Company name and address;
(ii)Statement by a responsible official with that official's name, title, and signature, certifying the truth, accuracy, and completeness of the content of the report; and
(iii)Date of report and beginning and ending dates of the reporting period. The reporting period is the 12-month period ending on December 31. Note that the information reported for the 12 months in the reporting period will be based on the last 12 months of data prior to the date of each monthly calculation.
(5)*Visual determination of fugitive emissions requirements* . The annual compliance report must contain the information specified in paragraphs (b)(5)(i) through
(iii)of this section for each affected source which performs visual determination of fugitive emissions in accordance with § 63.11517(a), “Monitoring requirements.”
(i)The date of every visual determination of fugitive emissions which resulted in detection of visible emissions;
(ii)A description of the corrective actions taken subsequent to the test; and
(iii)The date and results of the follow-up visual determination of fugitive emissions performed after the corrective actions.
(6)*Visual determination of emissions opacity requirements* . The annual compliance report must contain the information specified in paragraphs (b)(6)(i) through
(iii)of this section for each affected source which performs visual determination of emissions opacity in accordance with § 63.11517(c), “Monitoring requirements.”
(i)The date of every visual determination of emissions opacity;
(ii)The average of the six-minute opacities measured by the test; and
(iii)A description of any corrective action taken subsequent to the test.
(7)*Paint limit reports* . The annual compliance report must contain the information specified in paragraphs (b)(7)(i) through
(v)of this section for each spray painting affected source.
(i)Identification of the compliance option or options specified in § 63.11516(e), “Spray painting VOHAP content requirements,” that you used on each spray painting operation during the reporting period. If you switched between compliance options during the reporting period, you must report the beginning and ending dates of each option you used.
(ii)If you used the weighted-average VOHAP content compliance option in § 63.11516(e)(2), “Weighted-average VOHAP content limit option,” your annual compliance report must include the calculation results for rolling 12-month weighted-average VOHAP content, according to § 63.11516(e)(4)(ix)(C), “Compliance Demonstration.”
(iii)If there were no exceedences of the limitations in § 63.11516(e)(1), “VOHAP content limit option,” or § 63.11516(e)(2) “Weighted-average VOHAP content limit option,” the annual compliance report must include a statement that there were no exceedences of the limitations during the reporting period.
(iv)*Exceedences of the VOHAP content limit option* . If you used the HAP content limit option and there was an exceedence of the applicable VOHAP content requirement in § 63.11516(e)(1), “VOHAP content limit option,” an exceedence report must be prepared to contain the information in paragraphs (b)(7)(iv)(A) through
(D)of this section. This exceedence report must be submitted along with your annual compliance report, as required by paragraph (b)(1) of this section.
(A)Identification of each paint used that exceeded the applicable limit, and each thinner and/or other additive used that contained VOHAP, and the dates and time periods each was used.
(B)The calculation of the VOHAP content (via Equation 2 of § 63.11516(e)(3), “Spray painting VOHAP content requirements”) for each paint identified in paragraph (b)(7)(iv)(A) of this section. You do not need to submit background data supporting this calculation (e.g., information provided by paint suppliers or manufacturers, or test reports).
(C)The determination of mass fraction of VOHAP for each thinner and/or other additive identified in paragraph (b)(7)(iv)(A) of this section (as determined according to § 63.11516(e)(3)(i), “Spray painting VOHAP content requirements”). You do not need to submit background data supporting this calculation (e.g., information provided by material suppliers or manufacturers, or test reports).
(D)A statement of the cause of each exceedence of the VOHAP content requirement in § 63.11516(e)(1), “VOHAP content limit option.”
(v)*Exceedences of the weighted-average VOHAP content limit option* . If you used the weighted-average VOHAP content limit option and there was an exceedence of the applicable limit in § 63.11516(e)(2), “Weighted-average VOHAP content limit option,” an exceedence report must be prepared to contain the information in paragraphs (b)(7)(v)(A) through
(C)of this section. This exceedence report must be submitted along with your annual compliance report, as required by paragraph (b)(1) of this section.
(A)The beginning and ending dates of each compliance period during which the 12-month weighted-average VOHAP content exceeded the applicable limit in § 63.11516(e)(2), “Weighted-average VOHAP content limit option.”
(B)The calculations used to determine the weighted-average 12-month VOHAP content for the compliance period in which the exceedence of the limit in § 63.11516(e)(2), “Weighted-average VOHAP content limit option” occurred. You must submit the calculations for Equations 3, 3A, 3B, and 4 of § 63.11516(e)(4), “Spray painting VOHAP content requirements,” and if applicable, the calculation used to determine mass of VOHAP in waste materials according to § 63.11516(e)(4)(vi). You do not need to submit background data supporting these calculations (e.g., information provided by materials suppliers or manufacturers, or test reports).
(C)A statement of the cause of each exceedence of the limit in § 63.11516(e)(2), “Spray Painting VOHAP content requirements.”
(8)*Exceedence reports* . You must prepare and submit exceedence reports according to the requirements of paragraphs (b)(8)(i) through
(iii)of this section, and submit these reports along with your annual compliance report, as required by paragraph (b)(1) of this section.
(i)*Exceedences of spray painting VOHAP content limits* . As required by § 63.11516(e)(3)(vi)(D), “Spray painting VOHAP content requirements,” you must prepare an exceedence report whenever the calculated VOHAP content for any paint used exceeded the applicable limit, or any thinner and/or other additive used contained any VOHAP. This report must be submitted with your annual compliance report, according to the requirements of paragraph (b)(1) of this section, and must contain the information in paragraphs (b)(7)(iv)(A) through
(D)of this section.
(ii)*Exceedences of spray painting weighted-average VOHAP content limits* . As required by § 63.11516(e)(4)(ix)(B), “Spray painting VOHAP content requirements,” you must prepare an exceedence report whenever the weighted-average VOHAP content of paints used in any 12-month compliance period exceeds the applicable limit. This report must be submitted along with your annual compliance report, according to the requirements of paragraph (b)(1) of this section, and must contain the information in paragraphs (b)(7)(v)(A) through
(C)of this section.
(iii)*Exceedences of 20 percent opacity for welding affected sources* . As required by § 63.11516(f)(7)(i), “Requirements for opacities exceeding 20 percent,” you must prepare an exceedence report whenever the average of the six-minute average opacities recorded during a visual determination of emissions opacity exceeds 20 percent. This report must be submitted along with your annual compliance report according to the requirements in paragraph (b)(1) of this section, and must contain the information in paragraphs (b)(8)(iii)(A) and
(B)of this section.
(A)The date on which the exceedence occurred; and
(B)The average of the six-minute average opacities recorded during the visual determination of emissions opacity.
(9)*Site-specific Welding Emissions Management Plan reporting* . You must submit a copy of the records of daily visual determinations of emissions recorded in accordance with § 63.11516(f)(7)(iv), “Tier 3 requirements for opacities exceeding 20 percent,” and a copy of your Site-Specific Welding Emissions Management Plan and any subsequent revisions to the plan pursuant to § 63.11516(f)(8), “Site-specific Welding Emissions Management Plan,” along with your annual compliance report, according to the requirements in paragraph (b)(1) of this section.
(c)*What records must I keep* ? You must collect and keep records of the data and information specified in paragraphs (c)(1) through
(12)of this section, according to the requirements in paragraph (c)(13) of this section.
(1)*General compliance and applicability records* . Maintain information specified in paragraphs (c)(1)(i) through
(ii)of this section for each affected source.
(i)Each notification and report that you submitted to comply with this subpart, and the documentation supporting each notification and report.
(ii)Records of the applicability determinations as in § 63.11514(b)(1) through (5), “Am I subject to this subpart,” listing equipment included in its affected source, as well as any changes to that and on what date they occurred, for 5 years to be made available for inspector review at any time.
(2)*Visual determination of fugitive emissions records* . Maintain a record of the information specified in paragraphs (c)(2)(i) through
(iii)of this section for each affected source which performs visual determination of fugitive emissions in accordance with § 63.11517(a), “Monitoring requirements.”
(i)The date and results of every visual determination of fugitive emissions;
(ii)A description of any corrective action taken subsequent to the test; and
(iii)The date and results of any follow-up visual determination of fugitive emissions performed after the corrective actions.
(3)*Visual determination of emissions opacity records* . Maintain a record of the information specified in paragraphs (c)(3)(i) through
(iii)of this section for each affected source which performs visual determination of emissions opacity in accordance with § 63.11517(c), “Monitoring requirements.”
(i)The date of every visual determination of emissions opacity; and
(ii)The average of the six-minute opacities measured by the test; and
(iii)A description of any corrective action taken subsequent to the test.
(4)Maintain a record of the manufacturer's specifications for the control devices used to comply with § 63.11516, “Standards and management practices.”
(5)*Spray paint booth filter records* . Maintain a record of the demonstration of filter efficiency and regular spray paint booth filter maintenance and performed in accordance with § 63.11516(d)(1)(ii), “Spray painting of objects less than 15 feet in all dimensions requirements.”
(6)*HVLP or other high transfer efficiency spray delivery system documentation records* . Maintain documentation of HVLP or other high transfer efficiency spray paint delivery systems, in compliance with § 63.11516(d)(3), “Requirements for spray painting of all objects.” This documentation must include the manufacturer's specifications for the equipment and any manufacturer's operation instructions. If you have obtained written approval for an alternative spray application system in accordance with § 63.11516(d)(2), “Spray painting of all objects,” you must maintain a record of that approval along with documentation of the demonstration of equivalency.
(7)*HVLP or other high transfer efficiency spray delivery system employee training documentation records* . Maintain certification that each worker performing spray painting operations has completed the training specified in § 63.11516(d)(6), “Requirements for spray painting of all objects,” with the date the initial training and the most recent refresher training was completed.
(8)*General records detailing compliance with the spray painting VOHAP limits* . Maintain a current copy of the information detailed in paragraphs (c)(8)(i) through
(iii)of this section.
(i)Information provided by materials suppliers or manufacturers, such as manufacturer's formulation data, or test data used to determine the mass fraction of VOHAP and density for each paint, thinner and/or other additive and the volume fraction of paint solids for each paint.
(ii)Results of testing to determine mass fraction of VOHAP, density, or volume fraction of paint solids. You must keep a copy of the complete test report.
(iii)If you use information provided to you by the manufacturer or supplier of the material that was based on testing, you must keep the summary sheet of results provided to you by the manufacturer or supplier. You are not required to obtain the test report or other supporting documentation from the manufacturer or supplier.
(9)*Periodic records detailing compliance with the VOHAP limits* . For each compliance period, you must keep the records specified in paragraphs (c)(9)(i) through
(ix)of this section.
(i)The painting operations on which you used each compliance option and the time periods (beginning and ending dates and times) for each option you used.
(ii)For the HAP content limit option, a record of the calculation of the VOHAP content for each paint, using Equation 2 of § 63.11516(e)(3), “Spray Painting VOHAP content requirements.”
(iii)For the weighted-average VOHAP content limit option, you must keep the records of the information in paragraphs (c)(9)(iii)(A) through
(C)of this section.
(A)Calculation of the total mass of VOHAP content for the paints, thinners and/or other additives used each month using Equations 3, 3A, and 3B of § 63.11516(e)(4), “Spray painting VOHAP content requirements;”
(B)If applicable, the calculation used to determine mass of VOHAP in waste materials according to § 63.11516(e)(4)(vi), “Spray painting VOHAP content requirements;”
(C)Calculation of the total volume of paint solids used each month using Equation 4 of § 63.11516(e)(4), “Spray painting VOHAP content requirements,” and
(D)Calculation of the 12-month weighted-average VOHAP content using Equation 5 of § 63.11516(e)(4), “Spray painting VOHAP content requirements.”
(iv)The name and volume of each paint, thinner and/or other additive used during each compliance period. If you are using the HAP content limit option for all paints at the source, you may maintain purchase records for each material used rather than a record of the volume used.
(v)The mass fraction of VOHAP for each paint, thinner and/or other additive used during each compliance period unless the material is tracked by weight.
(vi)The volume fraction of paint solids for each paint used during each compliance period.
(vii)Records of the density for each paint, thinner and/or other additive used during each compliance period.
(viii)If you use an allowance in Equation 3 of § 63.11516(e)(4), “Spray painting VOHAP content requirements,” for VOHAP contained in waste materials sent to or designated for shipment to a treatment, storage, and disposal facility
(TSDF)according to § 63.11516(e)(4)(vi), you must keep records of the information specified in paragraphs (c)(9)(viii)(A) through
(C)of this section.
(A)The name and address of each TSDF to which you sent waste materials for which you use an allowance in Equation 3 of § 63.11516(e)(4), “Spray painting VOHAP content requirements;” a statement of which subparts under 40 CFR parts 262, 264, 265, and 266, “Hazardous Waste Management,” apply to the facility; and the date of each shipment.
(B)Identification of the painting operations producing waste materials included in each shipment and the month or months in which you used the allowance for these materials in Equation 1 of § 63.11516(e)(4), “Spray painting VOHAP content requirements.”
(C)The methodology used in accordance with § 63.11516(e)(4), “Spray painting VOHAP content requirements,” to determine the total amount of waste materials sent to or the amount collected, stored, and designated for transport to a TSDF each month; and the methodology to determine the mass of VOHAP contained in these waste materials. This must include the sources for all data used in the determination, methods used to generate the data, frequency of testing or monitoring, and supporting calculations and documentation, including the waste manifest for each shipment.
(ix)The date, time, and duration of each exceedence of the VOHAP content limits in § 63.11516(e)(1),”VOHAP content limit option,” or § 63.11516(e)(2) “Weighted-average VOHAP content limit option.”
(10)*Visual determination of emissions opacity performed during the preparation (or revision) of the Site-Specific Welding Emissions Management Plan* . You must maintain a record of each visual determination of emissions opacity performed during the preparation (or revision) of a Site-Specific Welding Emissions Management Plan, in accordance with § 63.11516(f)(7)(iii), “Requirements for opacities exceeding 20 percent.”
(11)*Site-Specific Welding Emissions Management Plan* . If you have been required to prepare a plan in accordance with § 63.11516(f)(7)(iii), “Site-Specific Welding Emissions Management Plan,” you must maintain a copy of your current Site-Specific Welding Emissions Management Plan in your records and readily available for inspector review.
(12)*Manufacturer's instructions* . If you comply with this subpart by operating any equipment according to manufacturer's instruction, you must keep these instructions readily available for inspector review.
(13)Your records must be maintained according to the requirements in paragraphs (c)(13)(i) through
(iii)of this section.
(i)Your records must be in a form suitable and readily available for expeditious review, according to § 63.10(b)(1), “General Provisions.” Where appropriate, the records may be maintained as electronic spreadsheets or as a database.
(ii)As specified in § 63.10(b)(1), “General Provisions,” you must keep each record for 5 years following the date of each occurrence, measurement, corrective action, report, or record.
(iii)You must keep each record on-site for at least 2 years after the date of each occurrence, measurement, corrective action, report, or record according to § 63.10(b)(1), “General Provisions.” You may keep the records off-site for the remaining 3 years. § 63. 11520 [Reserved] Other Requirements and Information § 63. 11521 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 § 63.6(g), of the General Provisions of this part.
(2)Approval of an alternative opacity emissions standard under § 63.6(h)(9), of the General Provisions of this part.
(3)Approval of a major change to test methods under § 63.7(e)(2)(ii) and (f), of the General Provisions of this part. A “major change to test method” is defined in § 63.90.
(4)Approval of a major change to monitoring under § 63.8(f), of the General Provisions of this part. 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), of the General Provisions of this part. A “major change to recordkeeping/reporting” is defined in § 63.90. § 63.11522 What definitions apply to this subpart? The terms used in this subpart are defined in the CAA; and in this section as follows: *Add-on control device* means equipment installed on a process vent or exhaust system that reduces the quantity of a pollutant that is emitted to the air. *Adequate emission capture* methods are hoods, enclosures, or any other duct intake devices with ductwork, dampers, manifolds, plenums, or fans designed to draw greater than 85 percent of the airborne dust generated from the process into the control device. *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 an add-on 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. *Cartridge collector* means a type of add-on control device that uses perforated metal cartridges containing a pleated paper or non-woven fibrous filter media to remove PM from a gas stream by sieving and other mechanisms. Cartridge collectors can be designed with single use cartridges, which are removed and disposed after reaching capacity, or continuous use cartridges, which typically are cleaned by means of a pulse-jet mechanism. *Confined abrasive blasting enclosure* means an enclosure that includes a roof and at least two complete walls, with side curtains and ventilation as needed to insure that no air or PM exits the enclosure while dry abrasive blasting is performed. Apertures or slots may be present in the roof or walls to allow for mechanized transport of the blasted objects with overhead cranes, or cable and cord entry into the dry abrasive blasting chamber. *Dry abrasive blasting* means cleaning, polishing, conditioning, removing or preparing a surface by propelling a stream of abrasive material with compressed air against the surface. Hydroblasting, wet abrasive blasting, or other abrasive blasting operations which employ liquids to reduce emissions are not dry abrasive blasting. *Dry grinding and dry polishing with machines* means grinding or polishing without the use of lubricating oils or fluids. *Fabric filter* means a type of add-on air control device used for collecting PM by filtering a process exhaust stream through a filter or filter media; a fabric filter is also known as a baghouse. *Facility maintenance* means operations performed as part of the routine repair or renovation of equipment, machinery, and structures that comprise the infrastructure of the affected facility and that are necessary for the facility to function in its intended capacity. Facility maintenance also includes operations associated with the installation of new equipment or structures, and any processes as part of janitorial activities. Facility maintenance includes operations on stationary structures or their appurtenances at the site of installation, to portable buildings at the site of installation, to pavements, or to curbs. Facility maintenance also includes operations performed on mobile equipment, such as fork trucks, that are used in a manufacturing facility and which are maintained in that same facility. Facility maintenance does not include surface coating of motor vehicles, mobile equipment, or items that routinely leave and return to the facility, such as delivery trucks, rental equipment, or containers used to transport, deliver, distribute, or dispense commercial products to customers, such as compressed gas canisters. *Grinding* means a process performed on a workpiece prior to fabrication or finishing operations to remove undesirable material from the surface or to remove burrs or sharp edges. Grinding is done using belts, disks, or wheels consisting of or covered with various abrasives. *Machining* means dry metal turning, milling, drilling, boring, tapping, planing, broaching, sawing, cutting, shaving, shearing, threading, reaming, shaping, slotting, hobbing, and chamfering with machines. Shearing operations cut materials into a desired shape and size, while forming operations bend or conform materials into specific shapes. Cutting and shearing operations include punching, piercing, blanking, cutoff, parting, shearing and trimming. Forming operations include bending, forming, extruding, drawing, rolling, spinning, coining, and forging the metal. Processes specifically excluded are hand-held devices and any process employing fluids for lubrication or cooling. *Manufacturer's formulation data* means data on a material (such as a paint) that are supplied by the material manufacturer based on knowledge of the ingredients used to manufacture that material, rather than based on testing of the material with the test methods specified in § 63.11516(e), “Spray Painting VOHAP content requirements.” Manufacturer's formulation data may include, but are not limited to, information on density, VOHAP content, volatile organic matter content, and paint solids content. *Mass fraction of VOHAP* means the ratio of the mass of volatile organic HAP (VOHAP) to the mass of a material in which it is contained, expressed as kg of organic HAP per kg of material. *Metal fabrication and finishing HAP (MFHAP)* means cadmium, chromium, lead, manganese, or nickel. *Metal fabrication and finishing source categories* are limited to operations described in Table 1 to this subpart. *Metal fabrication or finishing operations* means dry abrasive blasting, machining, spray painting, or welding in any one of the nine metal fabrication and finishing source categories listed in Table 1 to this subpart. *Organic HAP content* means the mass of volatile organic HAP (VOHAP) emitted per volume of paint solids used for a paint calculated using Equation 2 of § 63.11516(e), “Spray Painting VOHAP content requirements.” The VOHAP content is determined for the paint in the condition it is in when received from its manufacturer or supplier and does not account for any alteration after receipt. *Paint* means a material applied to a substrate for decorative, protective, or functional purposes. Such materials include, but are not limited to, paints, coatings, sealants, liquid plastic coatings, caulks, inks, adhesives, 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 paints for the purposes of this subpart. *Paint solids* means the nonvolatile portion of the paint that makes up the dry film. *Polishing* means an operation which removes fine excess metal from a surface to prepare the surface for more refined finishing procedures prior to plating or other processes. Polishing may also be employed to remove burrs on castings or stampings. Polishing is performed using hard-faced wheels constructed of muslin, canvas, felt or leather, and typically employs natural or artificial abrasives. Polishing performed by hand without machines is not considered polishing for the purposes of this subpart. *Responsible official* means responsible official as defined in 40 CFR 70.2. *Spray-applied painting* means application of paints using a hand-held device that creates an atomized mist of paint and deposits the paint on a substrate. For the purposes of this subpart, spray-applied painting does not include the following materials or activities:
(1)Paints applied from a hand-held device with a paint cup capacity that is less than 3.0 fluid ounces (89 cubic centimeters).
(2)Surface coating application using powder coating, hand-held, non-refillable aerosol containers, or non-atomizing application technology, including, but not limited to, paint brushes, rollers, hand wiping, flow coating, dip coating, electrodeposition coating, web coating, coil coating, touch-up markers, or marking pens.
(3)Painting operations that normally require the use of an airbrush or an extension on the spray gun to properly reach limited access spaces; the application of paints that contain fillers that adversely affect atomization with HVLP spray guns, and the application of paints that normally have a dried film thickness of less than 0.0013 centimeter (0.0005 in.).
(4)Thermal spray operations (also known as metallizing, flame spray, plasma arc spray, and electric arc spray, among other names) in which solid metallic or non-metallic material is heated to a molten or semi-molten state and propelled to the work piece or substrate by compressed air or other gas, where a bond is produced upon impact. *Thinner* means an organic solvent that is added to a paint after the paint is received from the supplier. *Tool or equipment repair* means equipment and devices used to repair or maintain process equipment or to prepare molds, dies, or other changeable elements of process equipment. *Totally enclosed and unvented* means enclosed so that no air enters or leaves during operation. *Totally enclosed and unvented dry abrasive blasting chamber* means a dry abrasive blasting enclosure which has no vents to the atmosphere, thus no emissions. A typical example of this sort of abrasive blasting enclosure would be a small “glove box” enclosure, where the worker places their hands in openings or gloves that extend into the box and enable the worker to hold the objects as they are being blasted without allowing air and blast material to escape the box. *Vented dry abrasive blasting* means dry abrasive blasting where the blast material is moved by air flow from within the chamber to outside the chamber into the atmosphere or into a control system. *Volatile organic compound (VOC)* means any compound defined as VOC in 40 CFR 51.100(s). *Volume fraction of paint solids* means the ratio of the volume of paint solids (also known as the volume of nonvolatiles) to the volume of a paint in which it is contained; liters
(gal)of paint solids per liter
(gal)of paint. *Welding* means a process which joins two metal parts by melting the parts at the joint and filling the space with molten metal. *Wind event* means an occurrence when the 60-minute average wind speed is greater than 25 miles per hour. § 63.11523 What General Provisions apply to this subpart? The provisions in 40 CFR part 63, subpart A, applicable to sources subject to § 63.11514(a) are specified in Table 4 of this subpart. Table 1 to Subpart XXXXXX of Part 63.—Description of Source Categories Affected by This Subpart Metal fabrication and finishing source category Description Electrical and Electronic Equipment Finishing Operations Establishments primarily engaged in high energy particle acceleration systems and equipment, electronic simulators, appliance and extension cords, bells and chimes, insect traps, and other electrical equipment and supplies not elsewhere classified. Also, establishments primarily engaged in manufacturing electric motors (except engine starting motors) and power generators; motor generator sets; railway motors and control equipment; and motors, generators and control equipment for gasoline, electric, and oil-electric buses and trucks. Fabricated Metal Products Establishments primarily engaged in manufacturing fabricated metal products, such as fire or burglary resistive steel safes and vaults and similar fire or burglary resistive products; and collapsible tubes of thin flexible metal. Also, establishments primarily engaged in manufacturing powder metallurgy products, metal boxes; metal ladders; metal household articles, such as ice cream freezers and ironing boards; and other fabricated metal products not elsewhere classified. Fabricated Plate Work (Boiler Shops) Establishments primarily engaged in manufacturing power marine boilers, pressure and nonpressure tanks, processing and storage vessels, heat exchangers, weldments and similar products. Fabricated Structural Metal Manufacturing Establishments primarily engaged in fabricating iron and steel or other metal for structural purposes, such as bridges, buildings, and sections for ships, boats, and barges. Heating Equipment, except Electric Establishments primarily engaged in manufacturing heating equipment, except electric and warm air furnaces, including gas, oil, and stoker coal fired equipment for the automatic utilization of gaseous, liquid, and solid fuels. Products produced in this source category include low-pressure heating (steam or hot water) boilers, fireplace inserts, domestic (steam or hot water) furnaces, domestic gas burners, gas room heaters, gas infrared heating units, combination gas-oil burners, oil or gas swimming pool heaters, heating apparatus (except electric or warm air), kerosene space heaters, gas fireplace logs, domestic and industrial oil burners, radiators (except electric), galvanized iron nonferrous metal range boilers, room heaters (except electric), coke and gas burning salamanders, liquid or gas solar energy collectors, solar heaters, space heaters (except electric), mechanical (domestic and industrial) stokers, wood and coal-burning stoves, domestic unit heaters (except electric), and wall heaters (except electric). Industrial Machinery and Equipment Finishing Operations Establishments primarily engaged in manufacturing heavy machinery and equipment of types used primarily by the construction industries, such as bulldozers; concrete mixers; cranes, except industrial plant overhead and truck-type cranes; dredging machinery; pavers; and power shovels. Also establishments primarily engaged in manufacturing forestry equipment and certain specialized equipment, not elsewhere classified, similar to that used by the construction industries, such as elevating platforms, ship cranes, and capstans, aerial work platforms, and automobile wrecker hoists. In addition, establishments primarily engaged in manufacturing machinery and equipment for use in oil and gas fields or for drilling water wells, including portable drilling rigs. Also, establishments primarily engaged in manufacturing pumps and pumping equipment for general industrial, commercial, or household use, except fluid power pumps and motors. This category includes establishments primarily engaged in manufacturing domestic water and sump pumps. Iron and Steel Forging Establishments primarily engaged in the forging manufacturing process, where purchased iron and steel metal is pressed, pounded or squeezed under great pressure into high strength parts known as forgings. The forging process is different from the casting and foundry processes, as metal used to make forged parts is never melted and poured. Primary Metals Products Manufacturing Establishments primarily engaged in manufacturing products such as fabricated wire products (except springs) made from purchased wire. These facilities also manufacture steel balls; nonferrous metal brads and nails; nonferrous metal spikes, staples, and tacks; and other primary metals products not elsewhere classified. Valves and Pipe Fittings Establishments primarily engaged in manufacturing metal valves and pipe fittings; flanges; unions, with the exception of purchased pipes; and other valves and pipe fittings not elsewhere classified. *Instructions for Table 2—* You may use the mass fraction values in the following table for solvent blends for which you do not have test data or manufacturer's formulation data and which match either the solvent blend name or the chemical abstract series
(CAS)number. If a solvent blend matches both the name and CAS number for an entry, that entry's organic HAP mass fraction must be used for that solvent blend. Otherwise, use the organic HAP mass fraction for the entry matching either the solvent blend name or CAS number, or use the organic HAP mass fraction from Table 2 to this subpart if neither the name nor CAS number match *.* Table 2 to Subpart XXXXXX of Part 63.—Default Organic HAP Mass Fraction for Solvents and Solvent Blends Solvent/solvent blend CAS No. Average organic HAP mass fraction Typical organic HAP, percent by mass 1. Toluene 108-88-3 1.0 Toluene. 2. Xylene(s) 1330-20-7 1.0 Xylenes, Ethylbenzene. 3. Hexane 110-54-3 0.5 n-hexane. 4. n-Hexane 110-54-3 1.0 n-hexane. 5. Ethylbenzene 100-41-4 1.0 Ethylbenzene. 6. Aliphatic 140 0 None. 7. Aromatic 100 0.02 1% xylene, 1% cumene. 8. Aromatic 150 0.09 Naphthalene. 9. Aromatic naphtha 64742-95-6 0.02 1% xylene, 1% cumene. 10. Aromatic solvent 64742-94-5 0.1 Naphthalene. 11. Exempt mineral spirits 8032-32-4 0 None. 12. Ligroines (VM & P) 8032-32-4 0 None. 13. Lactol spirits 64742-89-6 0.15 Toluene. 14. Low aromatic white spirit 64742-82-1 0 None. 15. Mineral spirits 64742-88-7 0.01 Xylenes. 16. Hydrotreated naphtha 64742-48-9 0 None. 17. Hydrotreated light distillate 64742-47-8 0.001 Toluene. 18. Stoddard Solvent 8052-41-3 0.01 Xylenes. 19. Super high-flash naphtha 64742-95-6 0.05 Xylenes. 20. Varsol [reg] solvent 8052-49-3 0.01 0.5% xylenes, 0.5% ethylbenzene. 21. VM & P naphtha 64742-89-8 0.06 3% toluene, 3% xylene. 22. Petroleum distillate mixtures 68477-31-6 0.08 4% naphthalene, 4% biphenyl. *Instructions for Table 3* —You may use the mass fraction values in the following table for solvent blends for which you do not have test data or manufacturer's formulation data. Table 3 to Subpart XXXXXX of Part 63.—Default Organic HAP Mass Fraction for Petroleum Solvent Groups a Solvent type Average organic HAP mass fraction Typical organic HAP, percent by mass Aliphatic b 0.03 1% Xylene, 1% Toluene, 1% Ethylbenzene, 1% Ethylbenzene, 1% Toluene, 1% Ethylbenzene. Aromatic c 0.06 4% Xylene, 1% Toluene, 1% Ethylbenzene. a Use this table only if the solvent blend does not match any of the solvent blends in Table 2 to this subpart by either solvent blend name or CAS number and you only know whether the blend is aliphatic or aromatic. b E.g., Mineral Spirits 135, Mineral Spirits 150 EC, Naphtha, Mixed Hydrocarbon, Aliphatic Hydrocarbon, Aliphatic Naphtha, Naphthol Spirits, Petroleum Spirits, Petroleum Oil, Petroleum Naphtha, Solvent Naphtha, Solvent Blend. c E.g., Medium-flash Naphtha, High-flash Naphtha, Aromatic Naphtha, Light Aromatic Naphtha, Light Aromatic Hydrocarbons, Aromatic Hydrocarbons, Light Aromatic Solvent. *Instructions for Table 4* —As required in § 63.11523, “General Provisions Requirements,” you much meet each requirement in the following table that applies to you. Table 4 to Subpart XXXXXX of Part 63.—Applicability of General Provisions to Metal Fabrication or Finishing Area Sources Citation Subject 63.1 1 Applicability. 63.2 Definitions. 63.3 Units and abbreviations. 63.4 Prohibited activities. 63.5 Construction/reconstruction. 63.6(a), (b)(1)-(b)(5), (c)(1), (c)(2), (c)(5), (g), (i),
(j)Compliance with standards and maintenance requirements. 63.9(a)-(d) Notification requirements. 63.10(a),
(b)except for (b)(2), (d)(1), (d)(4) Recordkeeping and reporting. 63.12 State authority and delegations. 63.13 Addresses of State air pollution control agencies and EPA regional offices. 63.14 Incorporation by reference. 63.15 Availability of information and confidentiality. 63.16 Performance track provisions. 1 § 63.11514(g), “Am I subject to this subpart?” exempts affected sources from the obligation to obtain title V operating permits. [FR Doc. E8-6411 Filed 4-2-08; 8:45 am] BILLING CODE 6560-50-P 73 65 Thursday, April 3, 2008 Rules and Regulations Part III Department of Homeland Security Department of State 8 CFR Parts 212 and 235 22 Parts 41 and 53 Documents Required for Travelers Departing From or Arriving in the United States at Sea and Land Ports-of-Entry From Within the Western Hemisphere; Designation of an Enhanced Driver's License and Identity Document Issued by the State of Washington as a Travel Document Under the Western Hemisphere Travel Institute; Final Rule and Notice DEPARTMENT OF HOMELAND SECURITY [USCBP 2007-0061] RIN 1651-AA69 8 CFR Parts 212 and 235 DEPARTMENT OF STATE 22 CFR Parts 41 and 53 Documents Required for Travelers Departing From or Arriving in the United States at Sea and Land Ports-of-Entry From Within the Western Hemisphere AGENCIES: U.S. Customs and Border Protection, Department of Homeland Security; Bureau of Consular Affairs, Department of State. ACTION: Final rule. SUMMARY: This rule finalizes the second phase of a joint Department of Homeland Security and Department of State plan, known as the Western Hemisphere Travel Initiative, to implement new documentation requirements for U.S. citizens and certain nonimmigrant aliens entering the United States. This final rule details the documents U.S. citizens 1 and nonimmigrant citizens of Canada, Bermuda, and Mexico will be required to present when entering the United States from within the Western Hemisphere at sea and land ports-of-entry. 1 “U.S. citizens” as used in this rule refers to both U.S. citizens and U.S. non-citizen nationals. DATES: This final rule is effective on June 1, 2009. FOR FURTHER INFORMATION CONTACT: Department of Homeland Security: Colleen Manaher, WHTI, Office of Field Operations, U.S. Customs and Border Protection, 1300 Pennsylvania Avenue, NW., Room 5.4-D, Washington, DC 20229, telephone number
(202)344-1220. Department of State: Consuelo Pachon, Office of Passport Policy, Planning and Advisory Services, Bureau of Consular Affairs, telephone number
(202)663-2662. SUPPLEMENTARY INFORMATION: Table of Contents I. Background A. Documentation Requirements for Arrivals at Sea and Land Ports-of-Entry Prior to This Rule 1. U.S. Citizens 2. Nonimmigrant Aliens From Canada and the British Overseas Territory of Bermuda 3. Mexican Nationals B. Statutory and Regulatory History 1. Intelligence Reform and Terrorism Prevention Act 2. Advance Notice of Proposed Rulemaking 3. Rules for Air Travel From Within the Western Hemisphere 4. Amendments to Section 7209 of IRTPA 5. Other Relevant Legislation 6. Passport Cards 7. Certifications to Congress II. Documentation at the Border III. Summary of Document Requirements in the Proposed Rule IV. Discussion of Comments A. General B. Implementation 1. General 2. Timeline 3. Security/Operational Considerations 4. Technology 5. Cruise Ships 6. MODUs/OCS C. Passports 1. General 2. Cost of Passports 3. Obtaining Passports 4. DOS Issuance Capacity 5. Passport Cards D. Alternative Documents 1. General 2. Driver's License and Birth Certificate 3. Trusted Traveler Documents 4. Children/Groups of Children/Alternative Approaches/Parental Consent 5. State Enhanced Driver's License Projects 6. Mexican/Canadian/Bermudian Documents 7. REAL ID Driver's Licenses E. Native Americans and Canadian Indians F. Outside the Scope of This Rulemaking 1. General 2. Air Rule 3. IBWC 4. Lawful Permanent Residents 5. Dual Nationals G. Public Relations 1. General 2. Outreach H. Regulatory Analyses 1. Regulatory Assessment 2. Regulatory Flexibility Act V. Final Document Requirements A. U.S. Citizens Arriving by Sea or Land B. Canadian Citizens and Citizens of Bermuda Arriving by Sea or Land C. Mexican Nationals Arriving by Sea or Land D. State Enhanced Driver's Licenses and Identification Documents E. Future Documents VI. Special Rules for Specific Populations A. U.S. Citizen Cruise Ship Passengers B. U.S. and Canadian Citizen Children 1. Children Under Age 16 2. Children Under Age 19 Traveling in Groups C. American Indian Card Holders from Kickapoo Band of Texas and Tribe of Oklahoma D. Members of United States Native American Tribes E. Canadian Indians F. Individual Passport Waivers G. Summary of Document Requirements VII. Regulatory Analyses A. Executive Order 12866: Regulatory Planning and Review B. Regulatory Flexibility Act C. Executive Order 13132: Federalism D. Executive Order 12988: Civil Justice Reform E. Unfunded Mandates Reform Act Assessment F. Paperwork Reduction Act G. Privacy Statement List of Subjects Amendments to the Regulations Abbreviations and Terms Used in This Document ANPRM—Advance Notice of Proposed Rulemaking BCC—Form DSP-150, B-1/B-2 Visa and Border Crossing Card CBP—U.S. Customs and Border Protection CBSA—Canada Border Services Agency DHS—Department of Homeland Security DOS—Department of State FAST—Free and Secure Trade FBI—Federal Bureau of Investigation IBWC—International Boundary and Water Commission INA—Immigration and Nationality Act IRTPA—Intelligence Reform and Terrorism Prevention Act of 2004 LPR—Lawful Permanent Resident MMD—Merchant Mariner Document MODU—Mobile Offshore Drilling Unit MRZ—Machine Readable Zone NATO—North Atlantic Treaty Organization NEPA—National Environmental Policy Act of 1969 NPRM—Notice of Proposed Rulemaking OARS—Outlying Area Reporting System OCS—Outer Continental Shelf PEA—Programmatic Environmental Assessment SENTRI—Secure Electronic Network for Travelers Rapid Inspection TBKA—Texas Band of Kickapoo Act UMRA—Unfunded Mandates Reform Act USCIS—U.S. Citizenship and Immigration Services US-VISIT—United States Visitor and Immigrant Status Indicator Technology Program WHTI—Western Hemisphere Travel Initiative I. Background For a detailed discussion of the document requirements for travelers entering the United States from within the Western Hemisphere before January 31, 2008, the statutory and regulatory histories through June 26, 2007, and the applicability of the rule related to specific groups, please see the NPRM published at 72 FR 35088. For the document requirements which went into effect on January 31, 2008, please see the Notice “Oral Declarations No Longer Satisfactory as Evidence of Citizenship and Identity” which was published in the **Federal Register** on December 21, 2007, at 72 FR 72744. A. Documentation Requirements for Arrivals at Land and Sea Ports-of-Entry Prior to the Effective Date of This Rule The following is an overview of the documentation requirements for citizens of the United States, Canada, British Overseas Territory of Bermuda (Bermuda), and Mexico who enter the United States at sea and land ports-of-entry prior to the effective date of this rule. 1. U.S. Citizens Generally, U.S. citizens must possess a valid U.S. passport to depart from or enter the United States. 2 However, U.S. citizens who depart from or enter the United States by land or sea from within the Western Hemisphere other than from Cuba have historically been exempt from this passport requirement. 3 U.S. citizens have always been required to satisfy the inspecting officers of their identity and citizenship. 4 Since January 31, 2008, U.S. citizens ages 19 and older have been asked to present documents proving citizenship, such as a birth certificate, and government-issued documents proving identity, such as a driver's license, when entering the United States through land and sea ports-of-entry. Children under the age of 19 have only been asked to present proof of citizenship, such as a birth certificate. 5 2 Section 215(b) of the Immigration and Nationality Act (INA), 8 U.S.C. 1185(b). 3 *See* 22 CFR 53.2(b), which waived the passport requirement pursuant to section 215(b) of the INA, 8 U.S.C. 1185(b). 4 In lieu of a passport, travelers claiming U.S. citizenship long have been permitted to enter on an oral declaration or to present a variety of documents to establish their identity and citizenship and right to enter the United States as requested by the CBP officer. A driver's license issued by a state motor vehicle administration or other competent state government authority is a common form of identity document. Citizenship documents generally include birth certificates issued by a United States jurisdiction, Consular Reports of Birth Abroad, Certificates of Naturalization, and Certificates of Citizenship. 5 72 FR 72744. 2. Nonimmigrant Aliens From Canada and the British Overseas Territory of Bermuda Each nonimmigrant alien arriving in the United States must present a valid unexpired passport issued by his or her country of nationality and, if required, a valid unexpired visa issued by a U.S. embassy or consulate abroad. 6 Nonimmigrant aliens entering the United States must also satisfy any other applicable admission requirements (e.g., United States Visitor and Immigrant Status Indicator Technology Program (US-VISIT)). However, the passport requirement is currently waived for most citizens of Canada and Bermuda when entering the United States as nonimmigrant visitors from countries in the Western Hemisphere at land or sea ports-of-entry. 7 These travelers have been required to satisfy the inspecting CBP officer of their identities and citizenship at the time of their applications for admission. Since January 31, 2008, these nonimmigrant aliens also have been asked to present document proving citizenship, such as a birth certificate, and government-issued documents proving identity, such as a driver's license, when entering the United States through land and sea ports-of-entry. 8 6 Section 212(a)(7)(B)(i) of the INA, 8 U.S.C. 1182(a)(7)(B)(i). 7 8 CFR 212.1(a)(1) (Canadian citizens) and 8 CFR 212.1(a)(2) (Citizens of Bermuda). *See also* 22 CFR 41.2. 8 72 FR 72744. 3. Mexican Nationals Mexican nationals are generally required to present a valid unexpired passport and visa when entering the United States. However, Mexican nationals arriving in the United States at land and sea ports-of-entry who possess a Form DSP-150, B-1/B-2 Visa and Border Crossing Card
(BCC)9 currently may be admitted without presenting a valid passport if they are coming by land or sea from contiguous territory. 10 9 A BCC is a machine-readable, biometric card, issued by the Department of State, Bureau of Consular Affairs. 10 8 CFR 212.1(c)(1)(i). *See also* 22 CFR 41.2(g). B. Statutory and Regulatory History This final rule sets forth the second phase of a joint Department of Homeland Security
(DHS)and Department of State
(DOS)plan, known as the Western Hemisphere Travel Initiative (WHTI), to implement section 7209 of the Intelligence Reform and Terrorism Prevention Act of 2004, as amended (IRTPA) on June 1, 2009. 11 A brief discussion of IRTPA, amendments to IRTPA, and related regulatory efforts follows. For a more detailed description of these efforts through June 26, 2007, please refer to the NPRM at 72 FR 35088. 11 Pub. L. 108-458, as amended, 118 Stat. 3638 (Dec. 17, 2004). 1. Intelligence Reform and Terrorism Prevention Act On December 17, 2004, the President signed IRTPA into law. 12 IRTPA mandates that the Secretary of Homeland Security, in consultation with the Secretary of State, develop and implement a plan to require travelers for whom the President had waived the passport requirement to present a passport or other document, or combination of documents, that are “deemed by the Secretary of Homeland Security to be sufficient to denote identity and citizenship” when entering the United States. WHTI thus requires U.S. citizens and nonimmigrant aliens from Canada, Mexico, and Bermuda to comply with the new documentation requirements. 12 Pub. L. 108-458, 118 Stat. 3638 (Dec. 17, 2004). 2. Advance Notice of Proposed Rulemaking On September 1, 2005, DHS and DOS published in the **Federal Register** an advance notice of proposed rulemaking (ANPRM) that announced that DHS and DOS were planning to amend their respective regulations to implement section 7209 of IRTPA. For further information, please see the ANPRM document that was published in the **Federal Register** on September 1, 2005, at 70 FR 52037. Comments to the ANPRM related to arrivals at sea and land ports-of-entry are addressed in this final rule. 3. Rules for Air Travel From Within the Western Hemisphere On August 11, 2006, DHS and DOS published an NPRM for air and sea arrivals. The NPRM proposed that, subject to certain narrow exceptions, beginning January 2007, all U.S. citizens and nonimmigrant aliens, including those from Canada, Bermuda, and Mexico, entering the United States by air and sea would be required to present a valid passport or NEXUS Air card; U.S. citizens would also be permitted to present a Merchant Mariner Document (MMD). The NPRM provided that the requirements would not apply to members of the United States Armed Forces. For a detailed discussion of what was proposed for air and sea arrivals, please see the NPRM at 71 FR 41655 (hereinafter, Air and Sea NPRM). The final rule for travelers entering or departing the United States at air ports-of-entry (hereinafter, Air Final Rule) was published in the **Federal Register** on November 24, 2006. Beginning January 23, 2007, 13 U.S. citizens and nonimmigrant aliens from Canada, Bermuda, and Mexico entering and departing the United States at air ports-of-entry, which now includes from within the Western Hemisphere, are generally required to bear a valid passport. The main exceptions to this requirement are for U.S. citizens who present a valid, unexpired MMD traveling in conjunction with maritime business and U.S. and Canadian citizens who present a NEXUS Air card for use at a NEXUS Air kiosk. 14 The Air Rule made no changes to the requirements for members of the United States Armed Forces. Please see the Air Final Rule at 71 FR 68412 for a full discussion of documentation requirements in the air environment. 13 DHS and DOS determined that delaying the effective date of the Air Rule to January 23, 2007, was appropriate for air travel because of operational considerations and available resources. *See id.* 14 The Air Rule did not change the requirements for lawful permanent residents. Lawful Permanent Residents of the United States continue to need to carry their I-551 cards and permanent residents of Canada continue to be required to present a passport and a visa, if necessary, as they did before the rule came into effect. In the Air Final Rule, DHS and DOS deferred a final decision on the document requirements for arrivals by sea until the second phase. Complete responses to the comments relating to sea travel that were submitted in response to the Air and Sea NPRM are presented in this final rule. 4. Amendments to Section 7209 of IRTPA On October 4, 2006, the President signed into law the Department of Homeland Security Appropriations Act of 2007 (DHS Appropriations Act of 2007). 15 Section 546 of the DHS Appropriations Act of 2007 amended section 7209 of IRTPA by stressing the need for DHS and DOS to expeditiously implement the WHTI requirements no later than the earlier of two dates, June 1, 2009, or three months after the Secretaries of Homeland Security and State certify that certain criteria have been met. The section required “expeditious[]” action and stated that requirements must be satisfied by the “earlier” of the dates identified. 16 Congress also expressed an interest in having the requirements for sea and land implemented at the same time and having alternative procedures for groups of children traveling under adult supervision. 17 However, on December 26, 2007, the President signed into law the Department of Homeland Security Appropriations Act of 2008 (“Omnibus Bill”, Pub. L. 110-161) which amended section 7209(b)(1) of IRTPA to require that WHTI “may not be implemented earlier than the date that is the later of 3 months after the Secretary of State and the Secretary of Homeland Security make the certification required in subparagraph
(B)or June 1, 2009.” (Section 545, Omnibus Bill). 15 Pub. L. 109-295, 120 Stat. 1355 (Oct. 4, 2006). 16 *Id.* at 546. See Congressional Record, 109th Cong., 2nd sess., September 29, 2006 at H7964. 17 *Id* . 5. Other Relevant Legislation On August 4, 2007, the President signed into law the Implementing Recommendations of the 9/11 Commission Act of 2007 (9/11 Commission Act of 2007). 18 Section 723 of the 9/11 Commission Act of 2007 called on the Secretary of Homeland Security to begin to develop pilot programs with states to develop state-issued secure documents that would denote identity and citizenship. Section 724 of the 9/11 Commission Act of 2007 called on the Secretary of State to examine the feasibility of lowering the execution fee for the proposed passport card. 18 Pub. L. 110-53, 121 Stat. 266 (Aug. 4, 2007). 6. Passport Cards On October 17, 2006, to meet the documentation requirements of WHTI and to facilitate the frequent travel of persons living in border communities, DOS, in consultation with DHS, proposed to develop a card-format passport for international travel by U.S. citizens through land and sea ports-of-entry between the United States and Canada, Mexico, or the Caribbean and Bermuda. 19 The passport card will contain security features similar to the traditional passport book. The passport card will be particularly useful for citizens in border communities who regularly cross the border and will be considerably less expensive than a traditional passport. The validity period for the passport card will be the same as for the traditional passport—ten years for adults and five years for minors under age 16. The final rule on the passport card was published on December 31, 2007 at 72 FR 74169. 19 71 FR 60928. 7. Certifications to Congress In Section 546 of the DHS Appropriations Act of 2007, Congress called for DHS and DOS to make certain certifications before completing the implementation of the WHTI plan. The Departments have been working toward making these certifications since October 2006. In Section 723 of the 9/11 Commission Act, Congress required the submission of a report to the appropriate congressional committees regarding the state enhanced driver's license pilot program required by a separate provision of the Act. Congress has asked for the following certifications: 1. *National Institute of Standards and Technology
(NIST)Certification.* Acquire NIST certification for the passport card concerning security standards and best practices for protection of personal identification documents. On May 1, 2007, NIST certified that the proposed card architecture of the passport card meets or exceeds the relevant standard and best practices, as specified in the statute. 2. *Technology Sharing.* Certify that passport card technology has been shared with Canada and Mexico. DHS and DOS continue to share information and meet regularly with both Mexican and Canadian officials regarding the radio frequency identification
(RFID)technology for the passport card. 3. *Postal Service Fee Agreement.* Certify that an agreement has been reached and reported to Congress on the fee collected by the U.S. Postal Service for acceptance agent services. DOS and the Postal Service have memorialized their agreement on the fees for the passport card set by DOS, including the execution fee which the Postal Service retains. 4. *Groups of Children.* Certify that an alternative procedure has been developed for border crossings by groups of children. The final rule contains an alternative procedure for groups of children traveling across an international border under adult supervision with parental consent as proposed in the land and sea NPRM. 5. *Infrastructure* . Certify that the necessary passport card infrastructure has been installed and employees have been trained. WHTI is a significant operational change in a series of changes that are aimed at transforming the land border management system. DHS will utilize the technology currently in place at all ports-of-entry to read any travel document with a machine-readable zone, including passports and the new passport card. CBP Officers have been trained in use of this infrastructure. In addition, CBP will deploy an integrated RFID technical infrastructure to support advanced identity verification in incremental deployment phases. CBP Officers receive ongoing training on WHTI policies and procedures and that will continue as we approach full WHTI implementation, including technology deployment, technology capability, and documentary requirements. CBP will develop training requirements and plans, perform the required training, provide on-site training support and monitor its effectiveness through assessment and ongoing support. Initial training was completed in January 2008. 6. *Passport Card Issuance* . Certify that the passport card is available to U.S. citizens. DOS has developed an ambitious and aggressive schedule to develop the passport card and is making progress toward that goal. DOS issued the final rule on December 31, 2007. DOS has accepted applications for the passport card since February 1, 2008, and expects to issue cards in spring 2008. 7. *Common Land and Sea Implementation* . Certify to one implementation date. The final rule provides for one implementation date for land and sea travel. 8. *State Enhanced Driver's License Projects* . Certify to agreement for at least one voluntary program with a state to test a state-issued enhanced driver's license and identification document. On March 23, 2007, the Secretary of Homeland Security and the Governor of Washington signed a Memorandum of Agreement to develop, issue, test, and evaluate an enhanced driver's license and identification card with facilitative technology to be used for border crossing purposes. On September 26, 2007, the Secretary of Homeland Security and the Governor of Vermont signed a similar Memorandum of Agreement for an enhanced driver's license and identification card to be used for border crossing purposes; on October 27, 2007, the Secretary and the Governor of New York also signed a Memorandum of Agreement. On December 6, 2007, the Secretary of Homeland Security and the Governor of Arizona also signed a similar Memorandum of Agreement to develop, issue, test, and evaluate an enhanced driver's license and identification card. 20 20 For more information on these enhanced driver's license projects, see *http://www.dhs.gov* . The Departments have worked very closely to update the appropriate congressional committees on the status of these certifications and will continue to do so until final certifications are made. DOS and DHS believe that these certifications will be made well in advance of the June 1, 2009, deadline for implementation. In the unlikely event that the Departments are unable to complete all the necessary certifications by June 1, 2009, the Departments will provide notice to the public and amend the date(s) for compliance with the document requirements for land and sea border crossings as necessary. II. Documentation at the Border In the Land and Sea NPRM, the Departments announced that, separate from WHTI implementation, beginning January 31, 2008, CBP would begin requesting documents that help establish identity and citizenship from all U.S. and Canadian citizens entering the United States. This announcement was made to reduce the well-known vulnerability posed by those who might illegally purport to be U.S. or foreign citizens trying to enter the U.S. by land or sea on a mere oral declaration. A person claiming U.S. citizenship must establish that fact to the examining CBP Officer's satisfaction, including by presenting documentation as necessary. Historically, a U.S. citizen has had to present a U.S. passport only if such passport is required under the provisions of 22 CFR part 53. Since January 31, 2008, DHS has expected the evidence of U.S., Bermudian, or Canadian citizenship to include either of the following documents or groups of documents:
(1)Document specified in CBP's regulations as WHTI-compliant for that individual's entry; or
(2)a government-issued photo identification document presented with proof of citizenship, such as a birth certificate. CBP retains its discretionary authority to request additional documentation when warranted and to make individual exceptions in extraordinary circumstances when oral declarations alone or with other alternative documents may be accepted. As of January 31, 2008, CBP has required proof of citizenship, such as a birth certificate or other similar documentation as noted in the final rule for U.S. and Canadian children under age 19. III. Summary of Document Requirements in the Proposed Rule In the June 26, 2007, NPRM, the Departments proposed new documentation requirements for U.S. citizens and nonimmigrant aliens from Canada, Bermuda, and Mexico entering the United States by land from Canada and Mexico, or by sea 21 from within the Western Hemisphere. The proposed document requirements are summarized below; for a full discussion of the proposed requirements, please refer to the NPRM at 72 FR 35088 (hereinafter Land and Sea NPRM). 21 In some circumstances under this rule, it is important to distinguish between types of sea travel. Those circumstances are so noted in the discussion of the final requirements. The Departments proposed that most U.S. citizens entering the United States at all sea or land ports-of-entry would be required to present either:
(1)A U.S. passport book;
(2)a U.S. passport card;
(3)a valid trusted traveler card (NEXUS, FAST, or SENTRI);
(4)a valid MMD when traveling in conjunction with official maritime business; or
(5)a valid U.S. Military identification card when traveling on official orders or permit. The Departments proposed that Canadian citizens entering the United States at sea and land ports-of-entry would be required to present, in addition to a visa, if required: 22 22 *See* 8 CFR 212.1(h), (l), and
(m)and 22 CFR 41.2(k) and (m). 1. A passport issued by the Government of Canada; or 2. A valid trusted traveler program card issued by the Canada Border Services Agency
(CBSA)or DHS, e.g. FAST, NEXUS, or SENTRI. 23 23 Canadian citizens who demonstrate a need may enroll in the SENTRI program and currently may use the SENTRI card in lieu of a passport. To enroll in SENTRI, a Canadian participant must present a valid passport and a valid visa, if required. Other foreign participants in the SENTRI program must present a valid passport and a valid visa, if required, when seeking admission to the United States, in addition to the SENTRI Card. The proposed rule did not alter the passport and visa requirements for other foreign enrollees in SENTRI (i.e., other than Canadian foreign enrollees). In the Land and Sea NPRM, DHS and DOS also noted that they had engaged with the Government of Canada in discussions of alternative documents that could be considered for border crossing use at land and sea ports-of-entry under the proposed rule. DHS and DOS pledged continued engagement in discussions of alternatives and welcomed comments suggesting alternative Canadian documents. Under the proposed rule, all Bermudian citizens would be required to present a passport issued by the Government of Bermuda or the United Kingdom when seeking admission to the United States at all sea or land ports-of-entry, including travel from within the Western Hemisphere. In the Land and Sea NPRM, the Departments proposed that all Mexican nationals would be required to present either:
(1)A passport issued by the Government of Mexico and a visa when seeking admission to the United States or
(2)a valid Form DSP-150, B-1/B-2 visa Border Crossing Card
(BCC)when seeking admission to the United States at land ports-of-entry or arriving by pleasure vessel or by ferry from Mexico. The Departments proposed that BCCs alone would no longer be acceptable by a Mexican national to enter the United States from Canada; instead, a Mexican national would need to present a passport and visa when entering the United States from Canada. The Departments proposed that Mexican nationals who hold BCCs would be allowed to use their BCCs for entry at the land border from Mexico and, when arriving by ferry or pleasure vessel from Mexico. For travel outside of certain geographical limits or for a stay over 30 days, Mexican nationals who entered the United States from Mexico possessing a BCC would also be required to obtain a Form I-94 from CBP as is currently the practice. 24 The BCC would not be permitted in lieu of a passport for commercial or other sea arrivals in the United States. 24 *See* 8 CFR 212.1(c)(1)(i); *also* 22 CFR 41.2(g). If Mexicans are only traveling within a certain geographic area along the United States' border with Mexico; usually up to 25 miles from the border but within 75 miles under the exception for Tucson, Arizona, they do not need to obtain a form I-94. If they travel outside of that geographic area, they must obtain an I-94 from CBP at the port-of-entry. 8 CFR 235.1(h)(1). The Departments also proposed continuing the current practice that Mexican nationals may not use the FAST or SENTRI card in lieu of a passport or BCC. Mexican national FAST and SENTRI participants, however, would continue to benefit from expedited border processing. The Departments also proposed to eliminate the exception to the passport requirement for Mexican nationals who enter the United States from Mexico solely to apply for a Mexican passport or other “official Mexican document” at a Mexican consulate in the United States located directly adjacent to a land port-of-entry and who currently are not required to present a valid passport. This type of entry generally occurs at land borders. 25 25 *See* 8 CFR 212.1(c)(1)(ii). In the Land and Sea NPRM, DHS and DOS encouraged U.S. states to consider participation in enhanced driver's license pilot programs and the Government of Canada to propose acceptable WHTI-compliant documents that it would issue to its citizens. DHS proposed to consider, as appropriate, documents such as driver's licenses that satisfy WHTI requirements by denoting identity and citizenship. These documents could be from a state, tribe, band, province, territory, or foreign government if developed in accordance with enhanced driver's license project agreements between those entities and DHS. In addition to denoting identity and citizenship, these documents will have compatible technology, security criteria, and respond to CBP's operational concerns. On January 29, 2008, DHS published in the **Federal Register** a final rule concerning minimum standards for state-issued driver's licenses and identification cards that can be accepted for official purposes in accordance with the REAL ID Act. 26 In the January 29, 2008 rule, DHS indicated its intent to work with states interested in developing driver's licenses that will meet both the REAL ID and WHTI requirements. 26 *See* REAL ID Final Rule at 73 FR 5272. In the Land and Sea NPRM, the Departments also proposed special circumstances for specific groups of travelers permitting other documents: • U.S. citizens on cruise ship voyages that originate and end in the United States may carry government-issued photo identification
(IDs)and birth certificates, consular reports of birth abroad or certificates of naturalization; • U.S. and Canadian citizen children under age 16 and children age 16 to 18 traveling in groups may carry originals or certified copies of birth certificates; U.S. citizen children may also carry consular reports of birth abroad or certificates of naturalization; • Members of the Kickapoo Band of Texas and Tribe of Oklahoma may carry the Form I-872, American Indian Card; The Land and Sea NPRM indicated that document requirements for Lawful Permanent Residents
(LPRs)of the United States, employees of the International Boundary and Water Commission
(IBWC)between the United States and Mexico, workers on the Outer Continental Shelf (OCS), active duty alien members of the U.S. Armed Forces, and members of NATO-Member Armed Forces would remain unchanged. The Departments also outlined certain approaches with regard to Native Americans and Canadian Indians, as well as alternative approaches to children and requested comments on the proposed alternatives for inclusion in this final rule. A discussion of those approaches and the comments received follows in the comment response section. IV. Discussion of Comments In the ANPRM, the Air and Sea NPRM, and Land and Sea NPRM, DHS and DOS sought public comment to assist the Secretary of Homeland Security to make a final determination concerning which document, or combination of documents, other than valid passports, would be accepted at sea and land ports-of-entry. DHS and DOS received 2,062 written comments in response to the ANPRM and over 1,350 written comments in response to the Land and Sea NPRM. The Departments also received several comments to the August 11, 2006, Air and Sea NPRM that addressed sea or land travel or the WHTI plan generally, which have been included and addressed in these comment responses. The majority of the comments (1,910 from the ANPRM) addressed only potential changes to the documentation requirements at land border ports-of-entry. One hundred and fifty-two comments from the ANPRM addressed changes to the documentation requirements for persons arriving at air or sea ports-of-entry. Comments in response to both the ANPRM and the Land and Sea NPRM were received from a wide range of sources including: Private citizens; businesses and associations; local, state, federal, and tribal governments; members of the United States Congress; and foreign government officials. The comments received in response to the ANPRM and the Land and Sea NPRM regarding arrivals by land and sea are addressed in this rulemaking. A summary of the comments from the ANPRM, the Air and Sea NPRM, and the Land and Sea NPRM follows with complete responses to the comments. A. General DHS and DOS received thirty-nine comments to the Land and Sea NPRM expressing general agreement with the proposed requirements. DHS and DOS received several comments to the August 11, 2006, Air and Sea NPRM for implementation of WHTI in the air and sea environments that opposed any requirements for land-border crossings. DHS and DOS received thirty comments to the Land and Sea NPRM expressing general disagreement with the proposed rule. One commenter requested more stringent document requirements than proposed. B. Implementation 1. General *Comment:* One commenter to the Land and Sea NPRM noted that a U.S. citizen cannot be denied entry to the United States. *Response:* U.S. citizens cannot be denied entry to the United States; however, the documents that this rule requires are designed to establish citizenship and identity. Travelers without WHTI-compliant documents who claim U.S. citizenship will undergo additional inspection and processing until the inspecting officer is satisfied that the traveler is a U.S. citizen, which could lead to lengthy delays. *Comment:* Two commenters to the Land and Sea NPRM expressed concern that the manner by which DHS is certifying itself as being ready to implement WHTI does not allow Congress to exercise the necessary oversight of the WHTI program. *Response:* DOS and DHS disagree. The Departments are in the process of taking the necessary steps to be able to make all certifications to Congress as required by statute. WHTI is a significant operational change in a series of changes that are aimed at transforming the land border management system. DHS will utilize the technology currently in place at all ports-of-entry to read any travel document with a machine-readable zone, including passports and the new passport card. CBP Officers have been trained in use of this infrastructure. In addition, CBP will deploy an integrated RFID technical infrastructure to support advanced identity verification in incremental deployment phases. CBP Officers receive ongoing training on WHTI policies and procedures and that will continue as we approach full WHTI implementation, including technology deployment, technology capability, and documentary requirements. CBP will develop training requirements and plans, perform the required training, provide on-site training support and monitor its effectiveness through assessment and ongoing support, with initial training having been completed in January 2008. The Departments have worked very closely to update the appropriate congressional committees on the status of the certifications and will continue to do so until final certifications are made. Moreover, the National Institute of Standards and Technology
(NIST)certified on May 1, 2007, that the architecture of the passport card meets or exceeds the relevant standard and the best practices for protection of personal identification documents as specified in the statute. DOS and DHS are on track to make all certifications well in advance of the June 1, 2009 implementation date. *Comment:* Approximately two hundred commenters to the Land and Sea NPRM requested that the Departments commit sufficient resources to fully implement WHTI, including technology, staffing, funding, training, and marketing. *Response:* DOS and DHS are fully committed to providing the necessary resources to implement WHTI, including technology, staffing, funding, training, and outreach to the traveling public. *Comment:* Several commenters raised concerns about requiring passports or other forms of documentation during emergency situations. One commenter stated that the passport waiver for U.S. citizens during unforeseen emergencies or for humanitarian or national interest reasons should also extend to Canadian and Mexican citizens. One commenter to the Land and Sea NPRM requested that DHS consult with local emergency responders so that WHTI does not compromise their ability to protect American and Canadian communities. *Response:* Pursuant to IRTPA, this final rule provides for situations in which documentation requirements may be waived for U.S. citizens on a case-by-case basis for unforeseen emergencies or “humanitarian or national interest reasons.” Similarly, CBP has authority to temporarily admit non-immigrant aliens into the United States on a temporary basis in case of a medical or other emergency, which is not changed by this final rule. Finally, local emergency responders routinely consult with local CBP offices regarding entry procedures into the United States during emergency situations. *Comment:* One commenter stated that the Land and Sea NPRM would be contrary to U.S. obligations under international human rights law, free trade agreements, and U.S. statutes, including the International Covenant on Civil and Political Rights, the Charter of the Organization of American States, the North American Free Trade Agreement (NAFTA), and the NAFTA Implementation Act because the rules restrict free movement of people in the Western Hemisphere. *Response:* DHS and DOS are not denying U.S. or non-U.S. citizens the ability to travel to and from the United States by requiring an appropriate document for admission. Pursuant to 8 U.S.C. 1182(a)(7)(A) and 1185, DHS and DOS have authority to require sufficient proof of identity and citizenship via presentation of a passport or alternative document when seeking entry to the United States. By requiring a valid passport or other alternative document for entry to the United States from within the Western Hemisphere, DHS and DOS are eliminating a historical exemption of the requirement that all U.S. citizens and other travelers must posses a passport to enter the country. 2. Timeline *Comment:* DHS and DOS received one hundred and ten comments to the ANPRM regarding the timeline for implementation of WHTI. Ten of the ANPRM commenters believed that WHTI should be implemented sooner than proposed. Nine of these commenters approved of the timelines proposed, and ninety-four commenters believed that the timeline should be extended. Several comments to the Air and Sea NPRM and to the Land and Sea NPRM asked for an extended implementation timeline. One commenter stated that WHTI in the land and sea environments should be implemented as soon as possible. A few commenters urged that the Departments give the public ample opportunity to prepare for the final implementation. Twenty-four commenters recommended delaying implementation until pilot projects and field trials had been completed. Two hundred and six commenters recommended that DHS should set a clear implementation date of June 2009. Six commenters requested a flexible and phased implementation approach for WHTI. Thirty-six commenters recommended ensuring that there is a critical mass of WHTI-compliant documentation ( *i.e.* , passports, NEXUS, FAST, and enhanced driver's licenses) in circulation prior to WHTI implementation at land and sea ports-of-entry. One commenter to the Land and Sea NPRM requested that key benchmarks relating to document availability and installation of required infrastructure be developed to determine the timeline for full implementation. *Response:* Since the publication of the NPRM, Congress has amended section 7209 by the 200 Omnibus Bill, to prohibit WHTI from being implemented before June 1, 2009, at the earliest. DHS and DOS will transition toward WHTI secure document requirements over the next 16 months, with implementation on June 1, 2009. This allows ample time for the public to prepare for the change. *Comment:* Two commenters stated that ending oral declarations on January 31, 2008, without a plan would cause substantial delays at ports-of-entry and suggested a single implementation date of 2009 rather than a phased implementation. Three commenters were concerned about how the elimination of the practice of accepting oral declarations of citizenship and how processing of travelers without documents in the transition phase will impact the flow of traffic at busy border crossings. *Response:* In the Land and Sea NPRM, the Departments announced that, separate from WHTI implementation, beginning January 31, 2008, CBP would begin requesting documents that evidence identity and citizenship from all U.S. and Canadian citizens entering the United States at land and sea ports-of-entry. This change was made to reduce the well-known vulnerability posed by those who might illegally purport to be U.S. or foreign citizens trying to enter the United States by land or sea on a mere oral declaration. As of January 31, 2008, a person claiming U.S. citizenship must establish that fact to the examining CBP Officer's satisfaction, generally through the presentation of a birth certificate and government-issued photo identification. CBP retains its discretionary authority to request additional documentation when warranted and to make individual exceptions in extraordinary circumstances when oral declarations alone or with other alternative documents may be accepted. CBP has relied on its operational experience in processing travelers entering the United States by land to ensure that the elimination of oral declarations is implemented in a manner that will minimize delays while achieving the security benefit underlying WHTI. The changes that took place January 31, 2008, have gone smoothly. Compliance rates are high and continue to increase. There have been no increases in wait times attributable to the end of accepting oral declarations alone at the border. *Comment:* One commenter to the Land and Sea NPRM stated that WHTI implementation should be delayed until a study underway at the Government Accountability Office
(GAO)is completed. Another commenter called upon DHS to conduct a more comprehensive economic impact analysis before the proposed rule is promulgated. *Response:* The Departments welcome congressional oversight and have cooperated with several GAO engagements that have directly or indirectly touched on WHTI. The Departments intend to fully implement WHTI on June 1, 2009, the earliest possible date, which the Departments believe is in the best interests of national security. Additionally, the Departments are providing ample time for robust communication efforts to and preparation by the traveling public. While the Departments will consider the findings of these GAO engagements with regard to WHTI implementation, it is not necessary, nor would it be appropriate, to delay implementation of WHTI until any particular GAO report is completed. Moreover, CBP has also conducted a robust economic analysis of the proposed rule, as detailed in the Land and Sea NPRM and elsewhere in this document, in accordance with applicable laws, regulations, and policies. 3. Security and Other Operational Considerations *Comment:* DHS and DOS received approximately thirty-five comments to the ANPRM stating that the implementation of WHTI at the land borders would result in travel delays at the ports-of-entry. Ten commenters to the Land and Sea NPRM recommended that the “border crossing agencies” implement a plan to anticipate and mitigate longer waits at key border crossings. *Response:* DHS has analyzed the potential for travel delays at the ports-of-entry in the document “Western Hemisphere Travel Initiative in the Land and Sea Environments: Programmatic Environmental Assessment.” The public was invited to comment on this analysis. DHS has concluded that implementation of WHTI in the land environment will not have an adverse impact on wait times. By using documents that contain an MRZ or employ RFID technology, the Departments anticipate that wait times will decrease. The final Programmatic Environmental Assessment is available at *http://www.cbp.gov.* 4. Technology *Comment:* Eight commenters to the Land and Sea NPRM stated that WHTI should not be implemented until RFID technology has been deployed. These commenters also stated that RFID technology should be deployed at all land-border crossings. Six hundred and thirty-eight commenters stated that appropriate infrastructure and personnel should be in place for a program of this magnitude. *Response:* DHS is committed to ensuring that infrastructure and fully trained personnel are in place to successfully implement WHTI in the land environment. DHS believes that deploying new RFID technology at certain land ports-of-entry, in combination with existing technology, is the most cost-effective way to enhance security while ensuring the efficient flow of trade and travelers. DHS believes that RFID deployment to low-volume land-border ports-of-entry in the near future is unnecessary given the current traffic volumes. *Comment:* Two commenters to the Land and Sea NPRM stated that DHS and DOS should reconsider the use of vicinity RFID technology in the passport card because of the substantial privacy and security risks. Four commenters stated that the implementation of WHTI should protect the personal privacy of travelers. *Response:* Based on experience to date with the use of RFID technology, DHS is confident that existing and future vicinity RFID-enabled documents can be used at the border in a manner that safeguards personal privacy. RFID technology is currently used as part of existing trusted traveler programs. The RFID chip contained in the passport card issued by DOS will not contain any personal information. The vicinity RFID technology to be deployed would act as a pointer to a secure CBP database and does not transmit personal information. The information is presented to CBP officers as the traveler pulls up to an inspection booth, thus facilitating faster processing of the individual. 5. Cruise Ships *Comment:* Four commenters to the Land and Sea NPRM stated their appreciation that passports will not be required for those cruise passengers departing and returning to the United States. One commenter disagreed with the proposed alternative document requirement for certain U.S. citizen cruise ship passengers. *Response:* DHS and DOS appreciate these comments, and have decided to adopt in the final rule the NPRM provision addressing U.S. citizens on round-trip cruises. Thus, U.S. citizens traveling entirely within the Western Hemisphere may present a government-issued photo ID along with an original or a copy of a birth certificate instead of a document designated in this final rule if they:
(1)Board a cruise ship at a port or place within the United States and
(2)return to the same U.S. port or place from where they originally departed. In addition, DHS and DOS added a new provision that clarifies that U.S. citizens under the age of 16 are required to present either an original or a copy of his or her birth certificate without having to provide a photo ID. Regarding the comment opposing alternative document requirements for cruise ship passengers, because of the nature of round trip cruise ship travel, DHS has determined that when U.S. citizens depart from and reenter the United States on board the same cruise ship, they pose a low security risk in contrast to cruise ship passengers who embark in foreign ports. Therefore, under certain conditions, U.S. citizen cruise ship passengers traveling within the Western Hemisphere will be permitted to present alternative documentation as described in section V.A. of this document. 6. MODUs/OCS *Comment:* One commenter to the Land and Sea NPRM supported the clarification on document requirements for workers returning to and from Mobile Offshore Drilling Units (MODUs) within the United States Outer Continental Shelf (OCS). *Response:* DHS and DOS appreciate this comment. DHS and DOS clarified in the Land and Sea NPRM that offshore workers who work aboard Mobile Offshore Drilling Units (MODUs) attached to the United States Outer Continental Shelf (OCS), and who travel to and from MODUs, would not need to possess a passport or other designated document to re-enter the United States if they do not enter a foreign port or place. Upon return to the United States from a MODU, such an individual would not be considered an applicant for admission for inspection purposes under 8 CFR 235.1. Therefore, this individual would not need to possess a passport or other designated document when returning to the United States. DHS and DOS note that, for immigration purposes, offshore employees on MODUs underway, which are not considered attached to the OCS, would not need to present a passport or other designated document for re-entry to the United States mainland or other territory if they do not enter a foreign port or place during transit. However, an individual who travels to a MODU directly from a foreign port or place and, therefore, has not been previously inspected and admitted to the United States, would be required to possess a passport or other designated document when arriving at the United States port-of-entry by sea. C. Passports 1. General *Comment:* Thirty-one commenters to the Land and Sea NPRM stated that increasing the number of documents in circulation will increase the number of documents that are lost, stolen or misplaced, and thus individuals in these circumstances will need expedited replacement. One commenter to the Land and Sea NPRM expressed concern about how to enter the United States if his passport had been lost or stolen. *Response:* U.S. citizens whose passports are lost or stolen can apply for replacements and request expedited service if necessary. Individuals who are abroad and have an urgent need to travel are generally issued a one-year, limited validity passport that will enable them to continue their trips. That passport will be replaced within the year for no additional fee either domestically or abroad. Individuals who are within the United States and have an urgent need to travel may pay a fee for expedited processing as defined in 22 CFR 51.56. *Comment:* One commenter to the Land and Sea NRPM raised concerns about the security of U.S. and foreign passports, stating that passports are easily falsified or altered. One commenter stated that passports can be intercepted in the mail and falsified. *Response:* A primary purpose of the passport has always been to establish citizenship and identity. It has been used to facilitate travel to foreign countries by displaying any appropriate visas or entry/exit stamps. Passports are globally interoperable, consistent with worldwide standards, and usable regardless of the international destination of the traveler. As such, we recognize that false passports are valuable assets for dangerous people. We take precautionary measures to verify passports and share information with international partners regarding lost and stolen passports. U.S. passports incorporate a host of security features. These security features include, but are not limited to, rigorous adjudication standards and document security features. The adjudication standards establish the individual's citizenship and identity and ensure that the individual meets the qualifications for a U.S. passport. The document authentication features include digitized photographs, embossed seals, watermarks, ultraviolet and fluorescent light verification features, security laminations, micro-printing, and holograms. An application for a U.S. passport is adjudicated by trained DOS experts and issued to persons who have documented their identity and United States citizenship by birth, naturalization or derivation. Applications are subject to additional Federal government checks to ensure the applicants are eligible to receive a U.S. passport under applicable standards. U.S. passports are delivered by priority mail with delivery confirmation providing proof of receipt at the addressee's zip code. Mail carriers are instructed to scan the Priority Mail piece at the time it is delivered to the address indicated on the envelope. Priority Mail envelopes also help protect the passport from loss or theft. The envelopes are sturdy and less likely to become damaged or unsealed during mail processing. Foreign passports accepted for admission to the United States must meet the standards set out in the International Civil Aviation Organization
(ICAO)9303, and a CBP inspecting officer verifies and authenticates such passports presented for admission to the United States. 2. Cost of Passports *Comment:* In response to the Air and Sea NPRM and Land and Sea NPRM, DHS and DOS received many comments stating that passports are too expensive for routine cross-border visits and that the cost of the passport book should be reduced or eliminated. Several commenters requested that DOS offer lower rates for families, the elderly, and children under 18. One commenter was concerned about the eventual cost of the passport card. One commenter stated that the cost of the passport card should be reasonable and it should remain less expensive than a passport. One commenter to the Land and Sea NPRM requested a no-cost passport card for travelers who cross international borders at unique geographical locations. One commenter urged the State Department to provide expedited passport service to truck drivers at no additional charge. Five commenters to the Land and Sea NPRM suggested that U.S. passport fees be waived for Indian tribal members. One commenter stated that the cost of obtaining a passport would cause people not to travel, negatively affecting commerce. *Response:* Title 22 of the United States Code mandates that DOS charge a fee for each passport application and a fee for executing each application, where applicable. The law and implementing regulations provide for certain exemptions from passport fees, but the law does not provide DOS the discretion to create additional exemptions or a reduced fee category based on the personal circumstances of the individual. Children do benefit from a lower application fee but it reflects the reduced validity period of the passport rather than a concession based on age. Please see the passport card final rule () for more information on the cost structure of the passport card. *See* 72 FR 74169. 3. Obtaining Passports *Comment:* DHS and DOS received seven comments to the Land and Sea NPRM asking why a birth certificate had to be submitted with the passport application or an old passport had to be submitted along with a renewal application, thus potentially leaving travelers without a passport or a birth certificate to use for international travel. *Response:* To prevent fraud, original birth certificates must be examined by passport examiners who are trained in fraud detection before they are returned to the applicant. For the same reason, a person is not permitted to hold two valid passports of the same type except on DOS authorization. DOS physically cancels current passports when it issues new passports, therefore, current or old passports have to be submitted during the renewal process. If a passport is needed for urgent travel, the traveler can request expedited service. 4. DOS Issuance Capacity *Comment:* DHS and DOS received one hundred eighty-four comments to the Land and Sea NPRM that expressed concern that DOS would not be able to timely process the increased numbers of passport applications that will result from implementation of the rule. One commenter stated that standard applications should be processed in six weeks and expedited applications in one week. One commenter stated that with the increase of passport applications, adjudicators within DOS are not given enough time to thoroughly check them. One commenter stated that the wait time in applying for the passport card should be less than thirty days. *Response:* Prior to the implementation of the first phase of WHTI in January 2007, DHS and DOS conducted a successful campaign to alert the traveling public and stakeholders in the private sector to the new document requirements implemented in the air phase, particularly in the aviation and travel and tourism industries. DOS has taken numerous measures in response to the increased demand resulting from the implementation of WHTI. DOS has created hundreds of new positions and is currently producing more than 1.6 million passports per month. DOS anticipates increasing passport issuance to 500,000 documents a week. DOS is also planning to open additional passport facilities around the country. Through these efforts, DOS expects to be able to meet the increased demand resulting from the implementation of WHTI in the land and sea environments. 5. Passport Cards *Comment:* DHS and DOS received four comments to the Air and Sea NPRM for implementation of WHTI in the air and sea environments requesting that the passport card be designated as an acceptable document in the air environment. Two commenters to the Land and Sea NPRM did not support the issuance of passport cards because the cards cannot be used for international travel beyond Canada, Mexico, the Caribbean, or Bermuda. *Response:* The passport card is intended as a lower cost means of establishing identity and nationality for U.S. citizens in two limited situations—for U.S. citizens crossing U.S. land borders and traveling by sea between the United States, Canada, Mexico, the Caribbean, or Bermuda. The passport card is not designed to be a globally interoperable travel document as defined by the International Civil Aviation Organization (ICAO). In fact, designating the card format passport for wider use, including by air travelers, would inadvertently undercut the broad-based international effort to strengthen civil aviation security and travel document specifications to address the post 9/11 threat environment because it would not meet all the international standards for passports and other official travel documents. Moreover, in its consideration of the 2007 Appropriations Act for the Department of Homeland Security, Congress, while allowing for the use of the passport card by citizens traveling by sea between the United States, Canada, Mexico, the Caribbean, or Bermuda, did not make parallel changes regarding international air travel. *Comment:* DHS and DOS received five comments to the Land and Sea NPRM stating that the implementation of WHTI should not take place until the passport card is available. One commenter suggested that the passport card should be issued in conjunction with existing state licensing agencies with federal support. Four commenters stated that the passport card could not possibly be designed, tested, publicized, and be readily obtainable by the summer of 2008. One commenter stated that the issuance of a passport card would not facilitate spontaneous travel. *Response:* As stated in the Land and Sea NPRM, in which the Departments jointly announced the next phase of WHTI addressing entry into U.S. land and sea ports-of-entry, DHS and DOS have considered the operational challenges posed by the new requirements. As a result, the Departments are taking a flexible, practical approach to land implementation that considers a variety of factors, including the availability of passports, passport cards, and state-issued enhanced driver's licenses pursuant to project agreements with DHS. During this transition period, U.S. citizens will be able to obtain the documents necessary to satisfy WHTI. *Comment:* The Government of Canada commented on the Land and Sea NPRM and encouraged the sharing of the technological and procurement specifications of the U.S. passport card in order to assist in the development of comparable passport card options in other countries. *Response:* DHS and DOS have engaged with the Government of Canada in discussions of alternative documents proposed by the Canadian federal government and several provinces that could be considered for border crossing use at land and sea ports-of-entry. DHS and DOS have shared technology and procurement specifications with the Government of Canada regarding alternative travel documents and welcome continued engagement with Canadian counterparts to implement WHTI. Alternative identity and citizenship documents issued by the Government of Canada will be considered in the future. *Comment:* One commenter to the NPRM recommended that the card should expire not less than ten years from the date issued. *Response:* Passport cards, like passport books, will be valid for ten years for adults and five years for children less than 16 years of age. D. Alternative Documents 1. General *Comment:* DHS and DOS received approximately 230 comments to the ANPRM requesting alternative documentation to the traditional passport book. Almost half of those commenters wanted a low-cost identification card that could be used for crossing the border. Many commenters requested that existing CBP Trusted Traveler cards be accepted. Several commenters asked for a clear definition of the documents that would be acceptable under WHTI for land travel. A few commenters stated that only the passport should be acceptable. Two commenters asked that a Transportation Worker Identification Card
(TWIC)be designated as an acceptable document. DHS and DOS received three comments to the Land and Sea NPRM requesting a low-cost identification card that could be used for crossing the border. Eleven commenters to the Land and Sea NPRM supported the opportunity for travelers to present a variety of government-approved identifications. Three commenters requested DHS and DOS to further study the possibility for alternative identification that would be accepted in place of a passport. *Response:* Other acceptable documents are designated in this rule by the Secretary of Homeland Security as sufficient to establish identity and citizenship at land and sea ports-of-entry. For U.S. citizens, along with the passport and lower-cost passport card, CBP Trusted Traveler cards under the NEXUS, SENTRI, and FAST programs will be accepted under this rule. In addition, identification cards issued to military members of the U.S. Armed Forces will be accepted when such personnel are traveling on official travel orders. Merchant Mariner Documents
(MMDs)issued by the U.S. Coast Guard to U.S. citizens will also be accepted when traveling for official maritime business. Canadian citizens will be able to present CBP Trusted Traveler Cards. The Border Crossing Card
(BCC)issued by DOS to Mexican nationals will be accepted when coming from Mexico. Documents issued as part of a DHS-approved state enhanced driver's license project will be acceptable according to the agreement between the individual state and DHS, or the Government of Canada and DHS. Details on state enhanced driver's license projects will be published as notices in the **Federal Register** as they are finalized. In addition to the documents described above, DHS and DOS are providing alternatives to the passport requirement for children under 16, children under 18 traveling in groups, Native American U.S. citizens, Canadian Indians, and certain U.S. cruise passengers on “closed-loop” voyages that originate in the United States. DHS and DOS encourage U.S. states and Canadian provinces (through the Government of Canada) to participate in enhanced driver's license projects. *Comment:* Four commenters to the Land and Sea NPRM asked for a definition of “availability” concerning documents that will be accepted under WHTI. *Response:* In the Land and Sea NPRM, the Departments stated, in the context of implementation and the effective date of the final rule: At a date to be determined by the Secretary of Homeland Security, in consultation with the Secretary of State, the Departments will implement the full requirements of the land and sea phase of WHTI. The implementation date will be determined based on a number of factors, including the progress of actions undertaken by the Department of Homeland Security to implement the WHTI requirements and the availability of WHTI compliant documents on both sides of the border. * * * 27 27 72 FR at 35096. In this context, “availability” means that WHTI-designated documents exist and the public can obtain them. The Departments are publishing this final rule with ample notice to the traveling public. This will also allow sufficient time for the traveling public to obtain documents before June 1, 2009. *Comment:* Thirteen commenters to the Land and Sea NPRM asked that the Departments include a provision in the final rule for a non-photo identification document (e.g., fingerprint verification) for persons who object to being photographed based on their religious beliefs. *Response:* While DHS and DOS remain sensitive to the concerns of different religious groups, the Departments must balance those concerns against the need to secure our borders through the implementation of the document standards required by WHTI. In particular, photographs serve a unique and essential function and significantly minimize the opportunities for document fraud, unlike fingerprints, by allowing an inspecting CBP officer or any law enforcement officer to immediately compare the picture on the document against the traveler. In order to be consistent with international travel standards, DHS is requiring all adult travelers to carry a government-issued photographic identification document. Failure to do so may result in delays at the border as officers try to determine identity and citizenship. 2. Driver's License and Birth Certificate *Comment:* DHS and DOS received almost 300 comments to the ANPRM stating that the combination of a driver's license and birth certificate should be acceptable to denote an individual's citizenship and identity. DOS and DHS received several comments to the Land and Sea NPRM stating that a driver's license and birth certificate should be acceptable to denote an individual's citizenship and identity. One commenter stated that because Native Americans can use their tribal identification cards, northern-border citizens should be allowed to use their state or province-issued birth certificates and driver's licenses. Thirty-eight commenters stated that they should be exempt from a passport requirement due to their unique geographic location. Two commenters requested special provisions for waiving passport requirements for North American Indians traveling through the U.S. border. One commenter disagreed with the cruise ship exemption for U.S. citizens. *Response:* The Departments agree that U.S. citizens may use the combination of a driver's license and birth certificate when traveling on “closed loop” cruise ship voyages, where the U.S. citizen departs from a U.S. port or place and returns to the same U.S. port upon completion of the voyage. Accordingly, we disagree with the commenter advocating that the Departments not adopt a special provision for cruise travel. DHS and DOS have determined that exempting certain cruise passengers from a passport requirement is the best approach to balance security and travel efficiency considerations in the cruise ship environment. In contrast, because of the myriad government entities that issue birth certificates and because of the greater potential for counterfeiting or adulteration associated with general use in the land and sea environments, the Departments have determined that it is not prudent to permit the combination of birth certificates and driver's licenses generally for adults when single, secure documents are available. CBP recognizes that residents of unique geographic locations face special challenges in that some must travel through Canada to get from their homes in the United States to their schools, jobs, and hospitals in other areas of the United States. CBP has worked with many of these communities over the years to facilitate travel. Full implementation of WHTI will not diminish CBP's ability to utilize existing protocols and other inspection processes to admit travelers to and from unique geographic locations. The Departments have elected not to adopt any of the remaining comments. *Comment:* DHS and DOS received several comments to the Land and Sea NPRM stating that because the combination of a driver's license and birth certificate is acceptable aboard a cruise ship, it should also be acceptable documentation for land-border entries. One commenter stated that because the land-border tourist industry has a far larger impact on the U.S. economy than the cruise-ship industry, the land border deserves no less protection and consideration. *Response:* DHS and DOS disagree. As mentioned previously, due to the operational environment and the security risks assessed, the Departments have determined that U.S. citizens may use the combination of a driver's license and birth certificate when traveling on certain cruise-ship voyages. As detailed in the Land and Sea NPRM, the security risks associated with designating this document combination for U.S. citizens on round-trip cruises are low. *See* 72 FR 35096. DHS and DOS have carefully considered the issues surrounding protection of our land borders and have determined that the documents designated in this rule for entry at land ports-of-entry reflect the best approach to balance security and travel efficiency considerations in the land environment. *Comment:* Three commenters to the Land and Sea NPRM recommended that senior citizens be permitted entry to the United States using government-issued photo identification with proof of citizenship based on their low security risk, significant cross-border linkages, and limited financial resources. *Response:* DHS and DOS appreciate this comment. DHS and DOS are sensitive to the needs of senior citizens and note that DOS will be offering a lower cost passport card as an alternative to the passport book. Senior citizens who live in participating states or provinces may also be eligible to obtain an enhanced driver's license. 3. Trusted Traveler Documents *Comment:* Three commenters to the Land and Sea NPRM expressed concern that the existing NEXUS card is not considered an acceptable form of ID at the border. One commenter sought early written assurances that NEXUS cards will be recognized as entry documents in non-dedicated commuter lanes. One commenter stated that DHS should make it a priority to expand both NEXUS and FAST. *Response:* Existing NEXUS cards are already acceptable documents for entry at land and sea ports-of-entry. CBP is upgrading the card format/features and is conducting a robust training program for its personnel at these ports of entry to ensure that CBP Officers enforce both the current documentation procedures recognizing trusted traveler cards and the WHTI requirements uniformly. *Comment:* Twenty-six commenters to the Land and Sea NPRM requested the expansion of the NEXUS, SENTRI, and FAST programs. Four commenters requested that the Trusted Traveler Programs be promoted more aggressively. Two commenters requested that the government explore opportunities and technologies to further develop frequent border crossing programs. Two commenters requested the expansion of the NEXUS program to include driver's licenses. Three commenters stated it is imperative that the phrase “as a participant in the program” be interpreted broadly enough to cover situations where truck drivers are crossing the border in a regular commercial or traveler lane for both NEXUS and FAST. *Response:* CBP is expanding the NEXUS, SENTRI, and FAST Trusted Traveler programs to accommodate an increase in applications expected as a result of the implementation of WHTI. 4. Children/Groups of Children/Alternative Approaches/Parental Consent *Comment:* Thirty-one commenters to the ANPRM asked to allow travelers under the age of 16 to use a birth certificate as sufficient proof of identity and citizenship. Ninety-three commenters to the Land and Sea NPRM supported the proposed requirements for children. Four commenters to the Land and Sea NPRM suggested the exemption from presenting a passport be raised to age 16 and under. One commenter stated that it would be appropriate to exempt children under the age of 18. Sixty-eight commenters supported the provisions being made for children traveling with their families, in groups, or with chaperones. One commenter stated that there was concern for the treatment of children if they have lost their documentation and were detained at the border. One commenter asked that U.S. and Canadian children traveling in groups for short trips should not be required to carry an original or certified copy of a birth certificate if accompanied by a chaperone. One commenter stated that attendance by students who are not members of athletic teams at high school events is jeopardized by this proposal. *Response:* Under this final rule, all U.S. citizen children under the age of 16 are permitted to present at all sea and land ports-of-entry when arriving from contiguous territory either:
(1)An original or a copy of a birth certificate;
(2)a Consular Report of Birth Abroad issued by DOS; or
(3)a Certificate of Naturalization issued by U.S. Citizenship and Immigration Services. The Departments have decided to expand the list of documents Canadian children may present. Under the final rule, Canadian citizen children under the age of 16 are permitted to present an original or a copy of a birth certificate, a Canadian Citizenship Card, or Canadian Naturalization Certificate at all sea and land ports-of-entry when arriving from contiguous territory. The final rule relaxes the birth certificate requirement by allowing presentation of either an original or copy of a birth certificate, rather than an original or a certified copy as proposed in the NPRM. DHS and DOS have determined that age 16 is the most appropriate age to begin the requirement to present a passport book, passport card (for U.S. citizens), or other approved document because at that age most states begin issuing photo identification to children, such as a driver's license, and at that point, the child would, consequently, have a known and established identity that could be readily accessed by border security and law enforcement personnel. Also, age 16 is the age at which DOS begins to issue adult passports, valid for 10 years instead of 5 years for children. DHS and DOS also recognize that it is difficult for the majority of children under age 16 to obtain a form of government-issued photo identification other than a passport. Under this final rule, U.S. citizen children under age 19, who are traveling with public or private school groups, religious groups, social or cultural organizations, or teams associated with youth sport organizations that arrive at U.S. sea or land ports-of-entry from contiguous territory, are permitted to present either:
(1)An original or a copy of a birth certificate;
(2)a Consular Report of Birth Abroad issued by DOS; or
(3)a Certificate of Naturalization issued by USCIS. Under this provision, groups of children must be under the supervision of an adult affiliated with the organization (including a parent of one of the accompanied children who is only affiliated with the organization for purposes of a particular trip) and all the children have parental or legal guardian consent to travel. Canadian citizen children under age 19 who are traveling in groups are permitted to present an original or a copy of a birth certificate, a Canadian Citizenship Card, or Canadian Naturalization Certificate under the same circumstances. For purposes of this alternative procedure, an adult would be considered to be a person age 19 or older, and a group would consist of two or more people. While DHS and DOS are sensitive to the needs of school groups, carrying an original or copy of a birth certificate represents the minimum travel requirement a person would possess to enable us to secure our borders through the implementation of WHTI. *Comment:* Six commenters to the Land and Sea NPRM requested that children of Mexican citizenship be included in the special requirements for children under the age of 16 or under the age of 19 when traveling in groups. One of these commenters questioned why Mexican children under the age of 16 were not included under the special requirements for children as Canadian children were. *Response:* IRTPA directs DHS and DOS to implement a plan to require documents for citizens for whom the general passport requirements have previously been waived, not to eliminate document requirements currently in place. All Mexican citizens, including children, are currently required to present either a passport and visa, or a BCC upon arrival in the United States. DHS and DOS are not changing the current document requirements for children of Mexican citizenship entering the United States. Question From the Proposed Rule: Alternative Approach for Children; Parental Consent In the Land and Sea NPRM, the Departments solicited comments on whether a traditional passport or a passport card should be required for any child under 16 entering the United States without his/her parents and not in a group. DOS and DHS also solicited comments on what would be the advantages and disadvantages to requiring a traditional passport or a passport card, and not allowing child travelers in such circumstances to rely upon a birth certificate, Consular Record of Birth Abroad, or Certificate of Naturalization. *Comment:* Two commenters to the Land and Sea NPRM requested that a child under the age of 16 who is traveling with only one parent not be required to have a letter of consent to travel from the other parent. One commenter stated that there needs to be a solution concerning a child traveling across the border with an extended family member who is not the parent. *Response:* : While the Departments take seriously the issue of child abduction, the final rule does not require a passport or passport card for children or evidence of parental consent for the child to cross the international border. Parents are strongly encouraged to check the requirements of the governments of Mexico and Canada for child travelers as well as review the guidance on the DOS and DHS Web sites when planning international travel for their children. Under this final rule, a U.S. citizen who is under the age of 16 is permitted to present either an original or a copy of his or her birth certificate, a Consular Report of Birth Abroad issued by DOS, or a Certificate of Naturalization issued by USCIS when entering the United States from contiguous territory at sea or land ports-of-entry. Based upon a review of the alternative approach for children and the parental consent questions asked in the Land and Sea NPRM and the comments received in response, DHS and DOS are not implementing any additional requirements regarding children or evidence of parental consent to travel other than those proposed in the Land Sea NPRM, which are adopted in this final rule. The Departments note that obtaining a passport book or card or other document with an MRZ or RFID technology may result in faster processing at the border. 5. State Enhanced Driver's License Projects *Comment:* DHS and DOS received two comments to the Air and Sea NPRM stating that the best solution to increasing security at our borders is one that incorporates improved technology in existing documentation, such as a driver's license. Thirty commenters to the Land and Sea NPRM stated that WHTI should not be implemented until all state or provincial enhanced driver's license pilot programs are in place. Six Canadian provinces urged DHS to explicitly recognize their proposed enhanced driver's license in the final rule. Twelve commenters supported proposed state pilot programs. One hundred-eight commenters recommended that DHS recognize an enhanced driver's license denoting identity and citizenship for entry by both Canadian and American citizens. One commenter stated that programs for producing an enhanced driver's license need more time for development and distribution prior to the summer of 2008. Eleven commenters recommended completing an enhanced driver's license pilot project prior to implementation of WHTI. Fifty-six commenters to the Land and Sea NPRM requested financial and technical assistance from the Federal government so that states could produce enhanced driver's licenses. *Response:* DHS encourages U.S. states and Canadian provinces acting through the Canadian Government to undertake enhanced driver's license projects. In a separate notice published concurrently in the **Federal Register** with this final rule, DHS will designate the Washington State enhanced driver's license as acceptable and notes that additional such documents will be added by notice. DHS will consider documents such as U.S. state and Canadian provincial enhanced driver's licenses that satisfy the WHTI requirements by denoting identity and citizenship undertaken pursuant to agreements with DHS. These documents also will have compatible facilitative technology and must meet minimum standards of issuance to meet CBP's operational needs. As noted above, the State of Washington has begun a voluntary program to develop an enhanced driver's license and identification card that would denote identity and citizenship. On March 23, 2007, the Secretary of Homeland Security and the Governor of Washington signed a Memorandum of Agreement to develop, issue, test, and evaluate an enhanced driver's license and identification card with facilitative technology to be used for border crossing purposes. Under this final rule, U.S. citizens arriving from contiguous territory and adjacent islands may present the enhanced driver's license and identification card issued by the State of Washington at land and sea ports-of-entry. To establish an EDL program, each entity individually enters into agreement with DHS based on specific factors such as the entity's level of interest, funding, technology, and other development and implementation factors. As each EDL program is specific to each entity, DHS does not intend to delay the implementation of WHTI until all potential state and provincial enhanced driver's license projects are operational. However, DHS will continue to welcome states and provinces interested in implementing EDL programs—even those that start after WHTI implementation. *Comment:* Two commenters recommended a meeting with all state driver's license directors by January 2008 before the completion of the Washington State pilot program. *Response:* DHS appreciates this comment and remains committed to working on a continuing basis with and coordinating efforts among states interested in developing, testing, and implementing pilot programs for enhanced driver's licenses. DHS encourages states interested in developing enhanced driver's licenses to work closely with DHS to that end. 6. Mexican/Canadian/Bermudian Documents *Comment:* Two commenters to the Land and Sea NPRM mistakenly believed that DHS had accepted Canadian provincial driver's licenses under the proposed rule. Eleven commenters appreciated DHS's acceptance of alternative Canadian citizenship and identity documents. Four commenters urged DHS and DOS to work with border states and Canadian provinces toward acceptable upgrades of existing documents. In its comments to the Land and Sea NPRM, the Government of Canada noted that DHS and DOS would accept the U.S. Merchant Mariner Document
(MMD)as a WHTI-compliant document for U.S. citizens traveling on official maritime business and requested that the modernized Canadian Seafarer's Identity Document
(SID)issued by Canada also be recognized by DHS and DOS as a WHTI-compliant document at sea and land ports-of-entry. *Response:* While DHS appreciates these comments, DHS is not designating the provincial driver's license or the Canadian Seafarer's Identity Document as acceptable documents in this final rule. As stated in the Land and Sea NPRM, DHS and DOS have engaged with the Government of Canada and various provinces in discussions of alternative documents that could be considered for border crossing use at land and sea ports-of-entry under this rule. DHS and DOS will continue working with the Canadian government to explore potential alternative documents in the future. The Departments clarify that the MMD is being phased out and is not a document that will be accepted in the long term. 7. REAL ID Driver's Licenses *Comment:* Four commenters to the Land and Sea NPRM asked for clarification whether enhanced driver's licenses issued as part of a state pilot program under WHTI would comply with the REAL ID requirements as well. Two commenters cautioned against the action of implementing WHTI using the requirements of REAL ID due to concerns regarding privacy, costs, a complicated verification system, and the issues of federalism. One commenter stated that DHS must definitively declare that WHTI-compliant driver's licenses meet the improved driver's license requirements of the REAL ID Act. *Response:* DHS has worked to align REAL ID and EDL requirements. EDLs are being developed consistent with the requirements of REAL ID and, as such, can be used for official purposes such as accessing a Federal facility, boarding Federally-regulated commercial aircraft, and entering nuclear power plants. While the REAL ID requirements include proof of legal status in the U.S., the EDL will require that the cardholder be a U.S. citizen. In addition, the EDL will also include technologies that facilitate electronic verification and travel at ports-of-entry. DHS is extremely cognizant of the need to protect privacy, and as such institutes best practices with regard to the collection and use of personal data for all of its programs. 8. IBWC *Comment:* DHS and DOS received one comment to the Air and Sea NPRM for implementation of WHTI in the air and sea environments requesting that International Boundary and Water Commission
(IBWC)identification be acceptable for land and sea travel. DHS and DOS received one comment to the Land and Sea NPRM requesting that IBWC identification be acceptable for land and sea travel. The comment also noted several improvements in the security of IBWC identification documents. *Response:* The Departments appreciate this comment. As stated in the Land and Sea NPRM, U.S. citizens and Mexican national direct and indirect employees of the IBWC crossing the United States-Mexico border may continue to use their IBWC cards while on official business under this final rule. E. U.S. Native Americans and Canadian Indians 1. Proposed Rule In the Land and Sea NPRM, the Departments sought comments on what Native American tribal documents could be designated as acceptable in the final rule. The Departments specified general criteria for acceptable Native American documents to meet. To satisfy Section 7209 of IRTPA, the documents must establish the identity and citizenship of each individual. In the Land and Sea NPRM, DHS and DOS proposed to accept tribal enrollment documents only if members of the issuing tribe continue to cross the land border of the United States for a historic, religious or other cultural purpose. It was also proposed that the tribal enrollment card must be satisfactory to CBP, may only be used at that tribe's traditional border crossing points and will only be accepted so long as that tribe cooperates with the verification and validation of the document. Tribes were also obligated to cooperate with CBP on the enhancement of their documents in the future as a condition for the acceptance of the document. DHS and DOS specifically invited comments from those United States tribes with members who continue to cross the border for a traditional purpose. The Departments sought comments from any tribe wishing to propose its tribal enrollment card as an acceptable alternative document. The Land and Sea NPRM asked that such comments include detailed information about traditional border crossings and the locations of those crossings. The Departments also requested information about the enrollment qualifications employed by each such U.S. tribe. A detailed description of the information sought by the Departments is provided in the Land and Sea NPRM. *See* 72 FR at 35099-35100. DHS and DOS also stated that they were considering alternative approaches and invited comments on these alternative approaches for U.S. Native Americans: • Make no special provision for U.S. Native Americans because they have an equal opportunity to obtain the same documents that are available to all other U.S. citizens. • Consider broader issuance of the American Indian Card now issued to members of the federally recognized Kickapoo Tribes or a similar card. • Accept tribal enrollment cards from tribes whose members continue traditional border crossings without any limitation on the border crossing point or points where each such tribal enrollment card is accepted. • Accept all tribal enrollment cards from all federally recognized Native American tribes at some or all border crossing points. The Land and Sea NPRM proposed that, for Canadian Indians: Canadian members of First Nations or “bands” would be permitted to enter the United States at traditional border crossing points with tribal membership documents subject to the same conditions applicable to United States Native Americans. Canadian First Nations or bands who seek to have their tribal enrollment cards accepted for border crossing purposes should submit comments for the record which contain the information requested * * *for comparable federally recognized U.S. tribes. 28 28 72 FR at 35100. The Land and Sea NPRM also proposed acceptance of the new document to be issued by the Canadian Department of Indian Affairs and Northern Development (hereinafter “INAC Card”) 2. Summary of Comments Many tribes and bands commented on the NPRM asking that the Departments include their tribal enrollment cards or other tribal documents as acceptable documents under WHTI. These commenters also proposed that all tribal cards issued by U.S. tribes should be accepted. Several Canadian First Nations commented on the Land and Sea NPRM to propose that their tribal enrollment cards or other tribal documents be designated as acceptable documents. These commenters also proposed that all such band cards for Canadian Indians be accepted. Commenters suggested that, in the alternative, the Departments should accept the proposed, revised INAC card as an acceptable alternative document. 3. Final Rule—U.S. Native Americans As stated in the Land and Sea NPRM, the United States has a special relationship, founded in the Constitution, with its Native American tribes. 29 This relationship allows the federal government, where appropriate, to designate Native American members of federally recognized U.S. tribes for special treatment. 30 Comments throughout the rulemaking process and consultations with U.S. Native American tribes have emphasized the particular impact which a new document requirement may have on Native Americans belonging to U.S. tribes who continue to cross the land borders for traditional historic, religious, and other cultural purposes. Several of these tribes are concerned that their members will be required to obtain a passport, passport card, or alternative document to maintain contact with ethnically related communities, including, for some tribes, members who live on traditional land in Mexico or Canada. 29 *See* Constitution, I, § *section* 8, cl.3; *Cherokee Nation* v *Georgia,* 30 U.S. 1, 17 (1831); *Worcester* v *Georgia,* 31 U.S. 515, 561 (1832); *U.S.* v *Sandoval,* 231 U.S. 28, 46-47 (1913). 30 *Morton* v. *Mancari,* 417 U.S. 535, 551-55. Based on the record of this rulemaking proceeding, the Departments have adopted an alternative approach from the Land and Sea NPRM for U.S. Native Americans. DHS will work with tribes recognized by the United States government if each tribe
(1)Continues to have strong cultural, historic, and religious cross-border ties; and
(2)is willing to improve the security of the tribal enrollment documents in the future. Accordingly, paragraph
(e)in 8 CFR 235.1 has been revised to capture this change. As stated in the proposed rule, acceptance of a tribal enrollment document would be contingent upon:
(1)The tribe satisfactorily establishing identity and citizenship in connection with the use of its document;
(2)the tribe providing CBP with access to appropriate parts of its tribal enrollment records; and
(3)the tribe agreeing to improve the security of its tribal documents in cooperation with CBP. 4. Final Rule—Canadian Indians As requested by Congress, DHS has consulted with the Government of Canada regarding several alternative documents, including a proposed more secure INAC Card. It is anticipated that this new INAC card will be issued by the Canadian Department of Indian Affairs and Northern Development, Director of Land and Trust Services (LTS). DHS proposes to accept this document for Canadian Indians if and when it is available in connection with features and procedures to satisfactorily evidence identity and citizenship. LTS is responsible for determining the status of all Canadian Indians under Canada's Indian Act of 1876 for purposes of entitlements. Since 1951, the Canadian Government has maintained Indian Registration Lists, which confirm the heritage of each individual for entitlement purposes. Through this long-standing registration process, Canada has formally conferred “registered” Indian status on individuals. Only registered Canadian Indians can apply for the LTS issued “status” card i.e., the INAC card. LTS currently issues an INAC card with some security features such as a photograph of the document holder. The Government of Canada proposes to issue a new INAC card that would comply with international document security standards agreed by the Governments of Canada and the United States as part of the Security and Prosperity Partnership (SPP). When the document is issued in accordance with the SPP 1.1.3 security standard it is expected to include a machine-readable zone (MRZ). It is anticipated that Canada will begin to issue the new INAC cards beginning in 2008. DHS continues to have discussions with the Government of Canada about how to ensure that DHS and CBP will have the capability to electronically validate and verify the identity and citizenship of INAC card holders. Permanent designation of the INAC as an acceptable travel document by the Secretary of Homeland Security will be conditioned on the satisfactory establishment of a process to achieve this validation. If designated by the Secretary of Homeland Security, the proposed new INAC card will also be accepted as satisfactory evidence of the citizenship and identity of registered Canadian Indians. In light of the decision to accept an appropriate document issued by the Government of Canada to those recognized by that government as Canadian Indians, the Departments have decided not to accept the multitude of documents issued by the many Canadian First Nations. 5. Specific Comments Objecting to any Document Requirement *Comments:* CBP received approximately one hundred comments to the ANPRM and several commenters to the Land and Sea NPRM opposing any regulations that would require Native Americans or Canadian Indians traveling to and from the United States to carry and produce a U.S. or Canadian passport upon entry. These commenters asserted that such a requirement would infringe upon an asserted “right” of indigenous peoples living within the United States and Canada to travel freely across the border. Twenty-two tribes and their representatives commented to the Land and Sea NPRM that WHTI infringed upon an asserted “right” to unrestricted passage across the U.S.-Canadian border granted under the Jay Treaty and other treaties. DHS and DOS received one comment to the Air and Sea NPRM for implementation of WHTI in the air and sea environments similarly stating that Native Americans should not have any restrictions on travel across the borders of the United States. Two commenters stated that assurance was needed that document requirements would not obstruct or discourage them from obtaining those documents or inhibiting the movement of their people. One commenter to the Land and Sea NPRM observed that while Native Americans are eligible to obtain passports as Canadian or U.S. citizens, many choose not to because they perceive it as a threat to their sovereign status. One commenter is concerned that such documents are required to denote citizenship and identity and many believe that accepting citizenship from the U.S. or Canada would undermine the federal government's treaty obligations. Six individuals and one tribe commented that the rule would have a negative impact on Native Americans' ability to maintain familial ties and exercise religious and cultural practices across international borders. One tribe commented that international crossings were based on proximity to water. One tribe commented that the Departments' attempts to fit border crossing needs into a box are simply unrealistic. *Response:* The INA requires the inspection of all applicants for admission, with the purpose of verifying identity and citizenship. The Jay Treaty of 1794 and other treaties do not prevent the Departments from requiring documentary evidence of identity and citizenship from Native Americans and Canadian Indians. Congress, through the enactment of Section 7209 of IRTPA, specifically mandated that the Departments develop a plan to require documentary evidence of identity and citizenship at the borders. Section 289 of the INA 31 refers to the “right” of “American Indians” born in Canada to “pass the borders of the United States,” provided they possess at least 50 percent of Native American blood. Section 289, however, benefits individuals who establish their identity, their Canadian citizenship, and that they are “American Indians.” 31 *See* 8 U.S.C. 1359. DHS and DOS have proposed to accept certain tribal documents as an appropriate accommodation to U.S. Native Americans. 6. Specific Native American and Canadian Indian Comments Directed to the Rulemaking Process *Comment:* Ten commenters to the Land and Sea NPRM requested that DHS and DOS meet with their tribal governments. One tribe and one individual commented that DHS and DOS have failed to adequately consult with federally recognized Indian tribes on the implementation of this rule in accordance with the law and consequently requested that the entire Land and Sea NPRM be retracted until proper “government-to-government” consultations can take place. One tribe expressed concerns that the Land and Sea NPRM would be the “only opportunity” for tribal governments to engage in dialogue regarding the proposed regulation. One commenter encouraged DHS to continue the open dialogue with tribal governments along the international borders and to view tribal governments as an asset for protecting and providing security for the international borders. *Response:* Throughout the rulemaking process, DHS has met with Native Americans to discuss the WHTI document requirements and tribal concerns. Moreover, DHS specifically solicited comments from Native Americans in an August 6, 2007, letter to all federally recognized tribes. Comment procedures outlined in the Land and Sea NPRM provided Native Americans with the opportunity to provide information about their tribal enrollment documents. The Departments received comments from numerous tribes, and these comments were fully considered in the decision to issue this final rule. *Comment:* Two tribes requested an extension of the comment period for the Land and Sea NPRM to be able to study the options available to them. *Response:* We have carefully considered the comments and determined that it is not advisable to reopen the comment period for the Land and Sea NPRM. Section 7209 of IRTPA, as amended, calls on the Departments to act expeditiously to implement WHTI. The Departments believe that the expeditious issuance of this Final Rule best advances our national security. Throughout the entire WHTI rulemaking process, DHS has met with Native Americans and Canadian Indians to discuss the WHTI document requirements and tribal concerns. DHS specifically solicited comments from Native Americans in an August 6, 2007, letter to all federally recognized tribes. As stated above, the Departments received comments from numerous tribes, and these comments were fully considered and are addressed in this final rule. Delaying issuance of the final rule would delay notice to the public and consequently the time available for travelers to obtain designated documentation. For these reasons, DHS and DOS did not reopen the comment period for the Land and Sea NPRM. 7. Comments on the Acceptance of Tribal Documents *Comment:* Twenty-six tribes, along with three individuals, commented that members should be allowed to use their existing tribal cards at any crossing point. One tribe commented that an independent pilot project is underway for a secure identification document that can be used by that tribe. Seven commenters welcomed the proposal to accept tribal enrollment documents as long as those documents are approved by DHS. Many commenters recommended using tribal documents as an alternative to the passport. Several commenters encouraged DHS to continue working with indigenous peoples to provide a mechanism for border crossing that is as streamlined as possible. One tribe's comment requested that Native Americans be granted the same privileges as U.S. Merchant Mariners if the Departments decide that requiring passports is the only option for entry documents. One commenter requested broader issuance of the American Indian Card now issued to members of the federally recognized Kickapoo Tribe or a similar card. Two commenters requested that existing Canadian Certificates of Indian Status
(CIS)be accepted as a WHTI-compliant document for entry into the United States. One commenter urges that secure indigenous, tribal or CIS Identity Cards for the purposes of entry into and from the U.S. and Canada be established within the provisions of WHTI. One tribe requested the acceptance of Canadian First Nations' tribal IDs at all border crossings. One tribe argued that their tribal enrollment records were sufficient to prove citizenship and objected to any notion that state-issued birth certificates were superior to their tribal records. One tribe commented that they support the comments by other tribal governments to develop a national tribal ID card for identification purposes for crossing international borders. One tribe did not understand the reluctance of DHS to accept tribal membership documents as sufficient evidence of identity and citizenship to support the right to enter the United States. *Response:* DHS and DOS appreciate these comments. As indicated above, based on the comments received and the information provided to the Departments on the particular impact the document requirement would have on Native American tribes, the Departments have determined that, at the time of full implementation of this final rule, U.S. citizens belonging to a federally-recognized tribe may present tribal enrollment documents designated by the Secretary of Homeland Security as meeting the WHTI standards at land ports-of-entry. If designated by the Secretary of Homeland Security as satisfactory, Canadian citizens may present the new proposed INAC card at land ports-of-entry when arriving from contiguous territory. Documents that will be designated by the Secretary must establish the identity and citizenship of the Native American and Canadian Indian document holders. Documents that will be designated by the Secretary must be secure, and U.S. tribes must also cooperate with CBP on the enhancement of their documents in the future as a condition for the continued acceptance of the document. 8. Native American Privacy Issues *Comment:* Twelve tribes commenting to the Land and Sea NPRM were concerned with disclosure and privacy issues regarding religious and cultural information. One tribe noted that information presumably related to traditional border crossings, which they consider private, was not requested from other state or government entities. These commenters insisted that the request for this information was not necessary. *Response:* DHS and DOS remain sensitive to related privacy concerns. In the Land and Sea NPRM, DHS and DOS invited any tribe that wished to propose its tribal enrollment card as an acceptable alternative document at one or more traditional border crossing points to submit comments explaining fully why its card should be accepted for travel while noting any privacy concerns. The privacy of tribes and their members will be of the utmost importance to the Departments when consulting with tribes to enhance their documents to be WHTI compliant. 9. Miscellaneous Comments *Comment:* One commenter to the Land and Sea NPRM sought clarification on what would be considered a “qualifying tribal entity” under the proposed rule. *Response:* A qualifying tribal entity is one that is federally recognized by the government of the U.S. that agrees to meet WHTI tribal document security standards, including agreeing to provide CBP access to the appropriate entries in its enrollment records. DHS will work with federally recognized tribes to develop, test and produce WHTI-compliant documents. Documents could be produced on behalf of a single tribe or a group of tribes who have agreed to produce a WHTI-compliant tribal document. *Comment:* One tribe commented to the Land and Sea NPRM that most members are born at home or on reservations and have difficulty producing a birth certificate, which is an important source document used to obtain documents under the proposed rule. *Response:* DHS and DOS have procedures in place to make determinations of citizenship when birth certificates are unavailable. 10. Kickapoo Tribe American Indian Card *Comment:* Two commenters to the Land and Sea NPRM asked that DHS and DOS maintain the current practice of allowing members of the Kickapoo Tribe to cross the border under the Texas Band of Kickapoo Act. One commenter is concerned that USCIS has not issued new documents for several years and asks that USCIS resume issuing such form I-872 American Indian Cards. *Response:* DHS and DOS agree to continue the current practice of allowing U.S. citizen and Mexican national Kickapoo Indians to enter and exit the United States using their American Indian Cards, issued by USCIS, as an alternative to the traditional passport or passport card at all land and sea border ports-of-entry. There are currently no plans to issue new form I-872 American Indian cards. F. Outside the Scope of the NPRM and Final Rule 1. General *Comment:* DHS and DOS received three comments to the Air and Sea NPRM regarding implementation of WHTI in the air and sea environments that proposed various technical specifications for DOS's passport card. *Response:* Comments regarding the technical specifications for the DOS-issued passport card are beyond the scope of this rule; however, the public had the opportunity to comment on DOS's proposed passport card NPRM at 71 FR 60928 (October 17, 2006). *Comment:* Two commenters to the Land and Sea NPRM stated that while the economic analysis predicts job losses in border communities, the federal government is not providing a remedy or addressing the impact in any way. *Response:* The Departments continue to strive to minimize the potential impact of WHTI implementation, especially on border communities. However, the WHTI plan was mandated by Congress in section 7209 of the IRTPA in response to an important national security imperative identified by the 9/11 Commission. Further, the Departments believe that implementation of WHTI will help facilitate legitimate trade and travel over time. It should also be recognized that a number of factors have a greater effect on the economies of border communities, including overall economic conditions and the current exchange rate. Providing financial support to those communities is beyond the scope of this rule, however. *Comment:* Two commenters stated that FAST enrollees are not currently treated as trusted travelers, which defeats the purpose of the FAST program. *Response:* Comments regarding the administration of CBP Trusted Traveler programs are beyond the scope of this rule; however, it should be noted that commercial drivers enrolled in FAST are trusted travelers. *Comment:* Ten commenters recommended the creation of a NEXUS appeals board. These commenters also recommended a streamlined renewal process for NEXUS. One commenter suggested several changes to the NEXUS program such as a one card/one fee per family program; extending the validity period of the NEXUS card to ten years; streamlining the renewal process; and recognizing NEXUS and FAST cards for entry in non-dedicated commuter lanes. One commenter suggested a clear NEXUS renewal process that ensures no down time for NEXUS members. *Response:* Comments regarding the administration of CBP Trusted Traveler programs are beyond the scope of this rule. DHS would note, however, that under the final rule, all CBP Trusted Traveler documents will be acceptable entry documents for United States and Canadian citizens at all lanes and all land ports-of-entry. DHS further notes that, if an individual feels that an application to a CBP Trusted Traveler program was denied based upon inaccurate information, redress may be sought through contacting the local trusted traveler Enrollment Center to schedule an appointment to speak with a supervisor, writing the CBP Trusted Traveler Ombudsman, or using the DHS Traveler Redress Inquire Program (DHS TRIP). CBP has also been making incremental improvements to its trusted traveler programs. See *http://cbp.gov/xp/cgov/travel/trusted_traveler/* . *Comment:* Two commenters to the Land and Sea NPRM stated that the cost for a Canadian passport is high and that the process for obtaining a passport should be made easier. Another commenter stated that the process for obtaining a Mexican passport and visa should be made less onerous. *Response:* While the U.S. government is working closely with passport agencies throughout the Western Hemisphere on WHTI and other travel document security matters, each nation's government ultimately controls the process and cost for obtaining a passport. The application process for and cost of a Canadian or Mexican government-issued document is outside the scope of this rule and outside the Departments' authorities. *Comment:* One commenter requested that a “full environmental statement” be prepared prior to implementation of passport or documentation control. *Response:* DHS and DOS documented their assessment of the potential for impact on the quality of the human environment in the “Western Hemisphere Travel Initiative in the Land and Sea Environments: Programmatic Environmental Assessment” dated September 10, 2007. The public was given an opportunity to comment on a draft of the Programmatic Environmental Assessment
(PEA)upon the publication of the Notice of Availability on June 25, 2007. See 72 FR 34710. Comments regarding the draft PEA were addressed in the Final PEA. Based on the final PEA, a determination was made that the travel documents proposed for WHTI and use of the travel documents for implementation of IRTPA will not have a significant impact on the quality of the human environment and that further analysis under the National Environmental Policy Act of 1969
(NEPA)would not be necessary. A Finding of No Significant Impact (FONSI) was issued on September 10, 2007, a copy of which is contained in the final PEA. *Comment:* One commenter to the Land and Sea NPRM disagreed with the employee citizenship requirement for the enhanced driver's license projects because it would result in the loss of valuable workforce for state governments. *Response:* While DHS appreciates this comment, policies regarding state employee citizenship requirements are beyond the scope of this rule. DHS remains committed to working with and coordinating efforts among states interested in developing, testing, and implementing enhanced driver's license projects. DHS encourages states interested in developing enhanced driver's licenses to work closely with DHS to that end. *Comment:* Two comments to the Land and Sea NPRM requested that DHS support the proposal to establish DOS offices in border communities to provide flexibility for spontaneous trips. Two commenters recommended an increase in the capacity of one of the regional passport offices specifically for passport service companies. *Response:* While DHS and DOS appreciate these comments, expansion of DOS passport offices in specific border communities is beyond the scope of this rule. *Comment:* One commenter to the Land and Sea NPRM recommended that the number of expedited applications for individual passports submitted by service companies be increased. *Response:* While DHS and DOS appreciate these comments, operational policies between passport service providers and DOS are beyond the scope of this rule. *Comment:* One commenter to the Land and Sea NPRM recommended that the Departments explore, as part of the proposed pilot project concept, the development of an “Indigenous lane” for border crossing/passage purposes. *Response:* While DHS remains committed to working with tribal groups, operational policies regarding “dedicated lanes” are beyond the scope of this rule. 2. Air Rule *Comment:* One commenter to the Land and Sea NPRM requested that the alternative procedure for U.S. and Canadian children entering the United States under age 19 traveling as part of school groups, religious groups, social or cultural organizations, or teams associated with youth support organizations be extended to the air environment in addition to land and sea ports-of-entry. *Response:* Comments regarding documentation requirements for U.S. and Canadian children entering the U.S. at air ports-of-entry are beyond the scope of this rule; however, the public had the opportunity to comment on these requirements in the August 11, 2006, NPRM for the air environment. Children under the age of 16 arriving from Western Hemisphere countries are required to present a passport when entering the United States by air. For a more detailed description of documentation requirements for children entering the U.S. through air ports-of-entry, see the Air Final Rule at 71 FR 68416 (November 24, 2006). *Comment:* One commenter to the Land and Sea NPRM requested that an alternative procedure for the transfer of medical patients be established for all modes of travel. *Response:* The air mode of travel is beyond the scope of this rule; however, IRTPA provides for situations in which documentation requirements may be waived on a case-by-case basis for unforeseen emergencies or “humanitarian or national interest reasons.” Please see the Air Final Rule, 71 FR at 68419, for more information. 3. Lawful Permanent Residents *Comment:* Three commenters to the Land and Sea NPRM stated that a Lawful Permanent Resident card should be sufficient to travel to and from the United States without the presentation of a passport. One commenter to the NPRM expressed concern about waiting to renew an expired Lawful Permanent Resident card when applying for entry into the United States. *Response:* Lawful Permanent Residents
(LPRs)of the United States will continue to be able to enter the United States upon presenting a Lawful Permanent Resident card (I-551) or other valid evidence of permanent resident status. There are current regulations that already address the entry of LPRs into the United States, which remain unchanged by WHTI. 4. Dual Nationals *Comment:* One commenter to the Land and Sea NPRM sought clarification on what documents would be required for travelers who have dual citizenship. *Response:* The WHTI rule lists the new documentation requirements for U.S., Canadian, Bermudan citizens, and Mexican nationals entering the United States by land or sea from within the Western Hemisphere. WHTI does not alter United States immigration law or regulations regarding citizenship. G. Public Relations 1. General *Comment:* DHS and DOS received fifty comments to the ANPRM asking for a partnership between the U.S. and Canada to address WHTI issues. One hundred commenters to the Land and Sea NPRM expressed a strong desire to see a more robust coordination between Canada and the United States. Nineteen commenters recommended a joint public communications campaign with Canada. *Response:* The Secretaries of DHS and DOS have worked and continue to work closely with the Canadian and Mexican governments on numerous fronts, including the Security and Prosperity Partnership
(SPP)of North America, the Smart Border Declaration, and the Shared Border Accord. The objectives of the initiatives are to establish a common approach to security to protect North America from external threats, prevent and respond to threats within North America, and further streamline the secure and efficient movement of legitimate traffic across our shared borders. The Secretaries are committed to working with our international partners to establish a common security strategy. *Comment:* One commenter stated that a new comment period should be opened or else the Land and Sea NPRM should be withdrawn. *Response:* The Departments have carefully considered the comment and determined that it is not advisable to reopen the comment period for the Land and Sea NPRM. Section 7209 of the IRTPA, as amended, calls on the Departments to implement WHTI expeditiously, which the Departments believe is in the best interests of national security. The procedures for the 60-day comment period outlined in the Land and Sea NPRM provided the public the opportunity to provide meaningful comments on the proposed rule and questions asked. The Departments received over 1,350 comments, which were fully considered and are addressed in this document. Moreover, delaying issuance of the final rule would delay notice to the public and shorten the time available to the traveling public to obtain designated documentation. For these reasons, DHS and DOS did not open a new comment period and did not withdraw the Land and Sea NPRM. 2. Outreach *Comment:* DHS and DOS received thirteen comments to the ANPRM that recommended the Departments work with the travel industry to launch an effective communications campaign to inform and educate the traveling public about any new documentation requirements. One hundred seventy comments were received to the Land and Sea NPRM stating that all the changes taking place during implementation of WHTI are confusing. Seven hundred and seventeen commenters encouraged DHS to formulate, implement, and fully fund a public awareness communications campaign immediately, particularly as it could add clarity. Six commenters recommended that a public relations/marketing firm be hired. One commenter encouraged DHS and DOS to timely convey information concerning the plan to end oral declarations on January 31, 2008. One commenter requested that the DHS undertake a full review of the public education plan for WHTI. *Response:* DHS and DOS are committed to an effective and intensive communications strategy during the implementation of WHTI. As was done in preparation for the changes at the border that took place on January 31, 2008, the Departments will continue to issue detailed press releases, address the public's frequently asked questions, supply travel information on their Web sites, and hold public meetings in affected communities. During the early phase of the implementation of WHTI in the air environment, DHS and CBP worked closely with the travel industry and other industries to disseminate timely, accurate information, and aggressively publicize the new requirements. CBP found that the overwhelming majority of affected air travelers, approximately 99 percent, presented acceptable documentation upon entry to the United States from within the Western Hemisphere from the earliest stages of implementation. This figure included not only U.S. citizens but also the citizens of Canada, Mexico, and Bermuda. The Departments believe that this coordinated public outreach effort will continue to serve as a useful model for implementation in the land and sea phase of WHTI. H. Regulatory Analyses 1. Regulatory Assessment *Comment:* DHS and DOS received over 1,700 comments to the ANPRM that expressed concern that WHTI would have a negative impact on trade and tourism. Twenty-four comments to the Air and Sea NPRM for WHTI stated that implementation would have a negative impact on cross-border travel. Five commenters to the Land and Sea NPRM stated that implementation would have a negative impact on day trips across the border. Approximately nine hundred commenters stated that WHTI would have a negative impact on trade and tourism resulting in revenue losses. Twenty-two commenters to the Land and Sea NPRM recommended that security be improved without damaging healthy cross-border trade and commerce. *Response:* Pursuant to Executive Order 12866, CBP conducted an economic analysis to address the potential impacts of reduced travel that could result from the implementation of WHTI in the land and sea environments. This analysis was published concurrently with the Land and Sea NPRM, and CBP requested comments on the documents. Based on the Regulatory Assessment, CBP acknowledges that WHTI could have a negative impact on travel in both environments; however, as demonstrated in intensive case studies of eight representative U.S. communities along both the Canadian and Mexican borders, reduced travel attributable to WHTI is predicted to have a less-than-1 percent impact on local output and employment levels in those communities. Additionally, CBP found that the cruises covered by the rule would not likely be greatly affected because obtaining a travel document represents a small portion of overall cost for most cruise passengers. Finally, the analysis for travel in the air environment was finalized with the Air Final Rule (Documents Required for Travelers Departing From or Arriving in the United States at Air Ports-of-Entry From Within the Western Hemisphere published November 24, 2006 (71 FR 68412)). *Comment:* CBP received three comments to the Regulatory Assessment for the Land and Sea NPRM stating that the analysis understated the economic losses that would result from implementation of the rule. Eight commenters to the Regulatory Assessment for the Land and Sea NPRM contended that the economic analysis was incomplete and insufficient. Two commenters stated that the underlying assumptions in the analysis were arbitrary and low. Several commenters stated that there must be a meaningful, third-party economic impact assessment of any proposed measures before proceeding. *Response:* While these commenters were dissatisfied with the economic analysis, they did not submit specific information that would enhance the current analysis, nor did they submit alternative analyses that more robustly considered the impacts on the U.S. and foreign economies. The analysis prepared by CBP for the Land and Sea NPRM was reviewed by the Office of Management and Budget
(OMB)in accordance with Executive Order 12866 and OMB Circular A-4. According to OMB Circular A-4, a good regulatory analysis should include:
(1)A statement of the need for the proposed action,
(2)an examination of alternative approaches, and
(3)an evaluation of the benefits and costs—quantitative and qualitative—of the proposed action and the main alternatives identified by the analysis. The two Regulatory Assessments that were published in the public docket concurrently with the Land and Sea NPRM (see USCBP-2007-0061-0002 and USCBP-2007-0061-0004) fully met these criteria. A regulatory analysis conducted by a “third party” is not a requirement under either Executive Order 12866 or OMB Circular A-4. *Comment:* CBP received one comment to the Regulatory Assessment of the Land and Sea NPRM stating that it did not make sense for predicted forgone cruise travel to have a higher percentage of reduced travel than forgone land travel. *Response:* CBP notes that estimated forgone travel was predicted using elasticities of demand for cruise travel and derived demand elasticities for land travel. CBP estimates that cruise travel is more elastic than land-border travel because cruise passengers travel almost exclusively for leisure purposes. Cruise passengers, thus, have many potential substitutes for their cruise trips; in economic terms, cruise passengers' demand for travel is very “elastic.” Conversely, land travelers cross the border for a myriad of reasons, including work, shopping, visiting family and friends, as well as vacation purposes. Because land-border trips are less “elastic” than cruise trips, the percent of forgone travelers is lower in the land environment than the cruise environment. *Comment:* Two commenters to the Land and Sea NPRM stated that the economic analysis cannot be considered reliable because it examines a program that is not yet in place. *Response:* Per Executive Order 12866, an economic analysis is required for all major rulemakings prior to final implementation. This analysis must contain an identification of the regulatory “baseline” as well as the anticipated costs and benefits of the rule on relevant stakeholders. The analysis prepared for the Land and Sea NPRM was reviewed by the Office of Management and Budget
(OMB)in accordance with Executive Order 12866 and OMB Circular A-4. *Comment:* Two commenters to the Land and Sea NPRM stated that the Regulatory Assessment erroneously analyzed expenditure flows from the Mexican and Canadian border together, when they should actually be analyzed separately. *Response:* As described in the detailed Regulatory Assessment for implementation of WHTI in the land environment (USCBP-2007-0061-0002) published concurrently with the Land and Sea NPRM and this final rule, the analysis did address economic impacts on the northern and southern borders separately. *Comment:* Two commenters to the Land and Sea NPRM asked about calculated risk reduction that would occur as a result of implementation of WHTI. One commenter stated that a third-party assessment of improved border security should be conducted. *Response:* Typically, reductions in the probability of a terrorist attack resulting from a regulation are measured against the baseline probability of occurrence (the current likelihood that a terrorist attack involving an individual arriving in the United States in the sea environment will be attempted and be successful) and combined with information about the consequences of the attack. The difference between the baseline probability of occurrence and the probability of occurrence after the regulation is implemented would represent the incremental probability reduction attributable to the rule. Historical data on the frequency of terrorist attacks to estimate the current baseline probability of attack within the United States cannot be used for several reasons: existing data does not provide information about whether documented attacks were attributable to the lack of a passport requirement; the data on international events occurring within the United States in the last decade are limited, and little information is available to describe the consequences of most of these events; and use of these data to project future probability of attack requires an understanding of the socioeconomic and political conditions motivating and facilitating these events historically and foresight with regard to how these factors may change in the future. In the absence of more detailed data, DHS and DOS are unable to quantitatively estimate the incremental reduction in the probability of terrorist attack that will result from this rule. Instead, CBP conducted a “breakeven analysis” to determine what the reduction in risk would have to be given the estimated costs of the implementation of WHTI (land environment only). Using the Risk Management Solutions U.S. Terrorism Risk Model (RMS model), CBP estimated the critical risk reduction that would have to occur in order for the costs of the rule to equal the benefits—or break even. As calculated, critical risk reduction required for the rule to break even ranges from 3 percent to 34 percent (for more detail see the section below on Executive Order 12866). This breakeven analysis prepared by CBP for the Land and Sea NPRM was reviewed by OMB in accordance with Executive Order 12866 and OMB Circular A-4. An analysis conducted by a “third party” is not a requirement under either Executive Order 12866 or OMB Circular A-4. *Comment:* Two commenters to the Land and Sea NPRM stated that the costs to the State Department to “catch up” on the backlog of passport applications were not considered. *Response:* The commenter is correct. CBP did not consider the costs to DOS in the Regulatory Assessment because the increased costs to DOS as a result of increased demand for passports due to WHTI can be recouped by a surcharge on the fee for the application of a passport. *See* 22 U.S.C. 214(b). It would be inappropriate, therefore, to present these as costs of the regulation. *Comment:* One commenter to the Land and Sea NPRM stated that she was “mystified” by the assertion that an economic analysis was not necessary. *Response:* DHS and DOS did not make this assertion in the Land and Sea NPRM. CBP conducted two extensive Regulatory Assessments for implementation of WHTI in the land and sea environments that were summarized in the preamble to the Land and Sea NPRM and were available in full for public comment (see USCBP-2007-0061-0002 and USCBP-2007-0061-0004). *Comment:* Four commenters to the Land and Sea NPRM stated that the estimated costs of lost trips by Canadian travelers were incorrectly calculated in the Regulatory Assessment for the implementation of WHTI in the land environment. *Response:* DHS and DOS appreciate these comments. CBP has modified the Regulatory Assessment for this final rule to more accurately account for potential lost trips from Canadian visitors to the United States. Please refer to the section below titled “Executive Order 12866” for a summary of the revised analysis and refer to the public docket and *http://www.cbp.gov* for the complete Regulatory Assessments for the final rule. *Comment:* Three commenters to the Land and Sea NPRM stated that the Regulatory Assessment erroneously assumed that lost spending in Canada and Mexico resulting from forgone travel to those countries would instead be spent in border communities. One commenter stated that the Regulatory Assessment erroneously assumed that U.S. dollars that would have been spent in Canada and Mexico would now remain in the United States. *Response:* These commenters appear to have misread the Regulatory Assessments. As described in the detailed Regulatory Assessment for Implementation of WHTI in the Land Environment (USCBP-2007-0061-0002) published concurrently with the Land and Sea NPRM, the analysis did not assume that all lost spending in Canada and Mexico would instead be spent exclusively in border communities. CBP made several simplifying assumptions in order to estimate increases in U.S. spending within the regional areas designated for case study. The analysis assumed that only a subset of the U.S. travelers who choose not to obtain documentation and stay in the United States spend in the regional study area what they would have spent in Mexico or Canada. In other words, the analysis assumed U.S. travelers visiting Mexico and Canada for tourist reasons will substitute their forgone trips abroad with trips within the United States outside of the regional study area. Additionally, as noted in the Regulatory Assessment, CBP made the simplifying assumption that the money these travelers would have spent on foreign travel remains in their home country. The analysis did not attempt to determine the portion of forgone travel-related expenditures that might be used instead for purchasing goods from foreign entities via mail order or the Internet. This factor was acknowledged as a source of uncertainty in the cost estimates for WHTI implementation in the land environment. *Comment:* One commenter stated that the analysis of tourism expenditures did not consider the impact of the cost of acquiring documentation on spend rates. *Response:* CBP agrees that the impact of the cost of acquiring WHTI-compliant documentation should be included in the estimate of lost expenditures in U.S. border communities. Specifically, in the final Regulatory Assessment, CBP considered whether the costs of obtaining documentation would be offset by reduced spending on the trip itself, or whether the traveler would reduce household spending locally by a commensurate amount. A review of the travel economics literature was inconclusive, but suggests that travelers often do not adhere to a budget while on a trip, particularly vacations. Also, CBP was unable to identify literature predicting whether travelers would amortize documentation costs across all the trips taken in a given time period, or whether they might reduce spending on the first trip taken after obtaining acceptable documentation to offset documentation costs. For these reasons, CBP believes it is most appropriate to assume that individuals who continue traveling after the implementation of WHTI will not spend less on cross-border trips. Rather, the costs of obtaining acceptable documentation will result in reduced household spending in the travelers' home communities. Therefore, the analysis of the distributional impacts of the final rule includes a reduction in household expenditures by U.S. citizens to offset the cost of obtaining WHTI-compliant documents. Similar changes in spending by Mexican and Canadian travelers are assumed to occur in those travelers home communities, and as a result, do not affect expenditures in the United States. Please refer to the section below titled “Executive Order 12866” for a summary of the revised analysis and refer to the public docket and *http://www.cbp.gov* for the complete Regulatory Assessments for the final rule. *Comment:* One commenter stated that some of the findings of the Regulatory Assessments analysis is based on surveys of traveler responses that may not be accurate. *Response:* CBP disagrees with this comment. Estimation of lost consumer surplus under each of the regulatory alternatives considered requires information about travelers' willingness to pay for access to Mexico or Canada. Willingness to pay is the maximum sum of money an individual would be willing to pay rather than do without a good or amenity. If the cost of access to Mexico or Canada is within the range of costs below this maximum value, the traveler will pay for access and continue to travel. Likewise, if the cost of access exceeds this maximum, travelers will forgo future travel. Therefore, because it represents a maximum value, willingness to pay for access to these countries will not vary depending on the regulatory alternative considered. It is calculated once, and then that value, or in this case demand curve, can be used to evaluate decisions about future travel based on a range of regulatory alternatives with varying access costs. The Regulatory Assessment relies on the results of a survey conducted for the Department of State. The surveyors informed respondents that after the implementation of WHTI, they would be required to have a valid passport for travel to Mexico and Canada. While the survey did not specify the cost of obtaining the document, a passport is a well-known, familiar form of identification with published fees that has been available for decades. Therefore, CBP believes it is acceptable to assume that the survey respondents had a reasonable idea of the cost of the document when responding to this question. The response to this question and information about the number of travelers making trips is used to estimate travelers' willingness to pay for access to these countries in the form of a linear demand curve. For the reasons discussed previously, this demand curve is relevant regardless of the regulatory option considered. Therefore, CBP used it to predict responses to varying regulatory alternatives not considered in the original survey that incorporate ranges of compliance options and costs. 2. Regulatory Flexibility Act *Comment:* One commenter noted several examples of individuals who would be considered small businesses, including sole proprietors, self-employed individuals, and freelancers. *Response:* CBP agrees that these “sole proprietors” would be considered small businesses and could be directly affected by the rule if their occupation requires travel within the Western Hemisphere where a passport was not previously required. The number of such sole proprietors is not available from the Small Business Administration or other available business databases, but we acknowledge that the number could be considered “substantial.” However, as estimated in the Regulatory Assessment for implementation of WHTI in the land environment, the cost to such businesses would be only $125 for a first-time passport applicant, $70 for a first-time passport card applicant plus an additional $60 if expedited service were requested. V. Final Document Requirements Based on the analysis of the comments and section 7209 of IRTPA, as amended, DHS and DOS have determined that U.S. citizens and nonimmigrant aliens from Canada, Bermuda, and Mexico entering the United States at land and sea ports-of-entry from the Western Hemisphere will be required to present documents or combinations of documents designated by this final rule. DHS and DOS expect the date of full WHTI implementation to be June 1, 2009. As noted, the Congress has mandated that WHTI shall be implemented no earlier than the date that is the later of 3 months after the Secretary of State and the Secretary of Homeland Security make the certification required in subparagraph
(B)or June 1, 2009. (Section 545, Omnibus Bill). The Departments will implement on June 1, 2009. A. U.S. Citizens Arriving by Sea or Land Under the final rule, most U.S. citizens 32 entering the United States at all sea or land ports-of-entry are required to have either:
(1)A U.S. passport;
(2)a U.S. passport card;
(3)a valid trusted traveler card (NEXUS, FAST, or SENTRI);
(4)a valid MMD when traveling in conjunction with official maritime business; or
(5)a valid U.S. Military identification card when traveling on official orders or permit. 32 Unless the U.S. citizen falls into one of the special rule categories listed below. Under the final rule, cards issued for the DHS Trusted Traveler Programs NEXUS, Free and Secure Trade (FAST), and Secure Electronic Network for Travelers Rapid Inspection (SENTRI) are designated as entry documents for U.S. citizens at all lanes at all land and sea ports-of-entry when traveling from contiguous territory or adjacent islands. Additionally, U.S. citizens who have been pre-screened as part of the NEXUS or Canadian Border Boat Landing Program who arrive by pleasure vessel from Canada are permitted to report their arrival by telephone or by remote video inspection, respectively. U.S. citizens who arrive by pleasure vessel from Canada are permitted to show the NEXUS card in lieu of a passport or passport card along the northern border under the auspices of the remote inspection system for pleasure vessels, such as the Outlying Area Reporting System (OARS). Currently, as NEXUS members, U.S. citizen recreational boaters can report their arrival to CBP by telephone. Otherwise, these U.S. citizen pleasure vessel travelers arriving from Canada are required to report in person to a port-of-entry in order to enter the United States. 33 33 *See* 8 CFR 235.1(g). U.S. citizen holders of a Canadian Border Boat Landing Permit (Form I-68) are required to possess a passport, passport card, or trusted traveler program document when arriving in the United States in combination with the Form I-68 and are required to show this documentation when applying for or renewing the Form I-68. Participants would continue to benefit from entering the United States from time to time without having to wait for a physical inspection, subject to the applicable regulations. More information on the Canadian Border Boat Landing Program (I-68 Permit Program) is available on the CBP Web site at *http://www.cbp.gov.* After full implementation of WHTI, dedicated lanes for trusted traveler programs will still exist at certain land ports-of-entry, which will provide program members with the opportunity for expedited inspections. B. Canadian Citizens and Citizens of Bermuda Arriving by Sea or Land 1. Canadians Under this final rule, Canadian citizens entering the United States at sea and land ports-of-entry are required to present, in addition to any visa required: 34 34 *See* 8 CFR 212.1(h), (l), and
(m)and 22 CFR 41.2(k) and (m). • A valid passport issued by the Government of Canada; 35 or 35 Foreign passports remain an acceptable travel document under section 7209 of the IRTPA. • A valid trusted traveler program card issued by CBSA or DHS, e.g., FAST, NEXUS, or SENTRI. 36 36 Canadian citizens who demonstrate a need may enroll in the SENTRI program and currently may use the SENTRI card in lieu of a passport. To enroll in SENTRI, a Canadian participant must present a valid passport and a valid visa, if required, when applying for SENTRI membership. Other foreign participants in the SENTRI program must present a valid passport and a valid visa, if required, when seeking admission to the United States, in addition to the SENTRI card. This final rule does not alter the passport and visa requirements for other foreign enrollees in SENTRI (i.e., other than Canadian foreign enrollees). Currently, Canadian citizens can show a SENTRI, NEXUS, or FAST card for entry into the United States only at designated lanes at designated land border ports-of-entry. Additionally, Canadian citizens in the NEXUS program who arrive by pleasure vessel from Canada are permitted to present a NEXUS membership card in lieu of a passport along the northern border under the auspices of the remote inspection system for pleasure vessels, such as the Outlying Area Reporting System (OARS). 37 Currently, as NEXUS members, Canadian recreational boaters can report their arrival to CBP by telephone. 38 Otherwise, these Canadian pleasure vessel travelers arriving from Canada are required to report in person to a port-of-entry in order to enter the United States. 39 37 Permanent residents of Canada must also carry a valid passport and valid visa, if required. 38 Remote pleasure vessel inspection locations are only located on the northern border. 39 *See* 8 CFR 235.1(g). Canadian holders of a Canadian Border Boat Landing Permit (Form I-68) are required to possess a passport or trusted traveler card when arriving in the United States in combination with the Form I-68 and would be required to show this documentation when applying for or renewing the Form I-68. 2. Bermudians Under this final rule, all Bermudian citizens are required to present a passport 40 issued by the Government of Bermuda or the United Kingdom when seeking admission to the United States at all sea or land ports-of-entry, including travel from within the Western Hemisphere. 40 Bermudian citizens must also satisfy any applicable visa requirements. *See* 8 CFR 212.1(h), (l), and
(m)and 22 CFR 41.2(k) and (m). C. Mexican Nationals Arriving by Sea or Land Under this final rule, all Mexican nationals are required to present either:
(1)A passport issued by the Government of Mexico and a visa when seeking admission to the United States, or
(2)a valid BCC when seeking admission to the United States at land ports-of-entry or arriving by pleasure vessel or by ferry from Mexico. For purposes of this rule, a pleasure vessel is defined as a vessel that is used exclusively for recreational or personal purposes and not to transport passengers or property for hire. A ferry is defined as any vessel:
(1)Operating on a pre-determined fixed schedule;
(2)providing transportation only between places that are no more than 300 miles apart; and
(3)transporting passengers, vehicles, and/or railroad cars. We note that ferries are subject to land border-type processing on arrival from, or departure to, a foreign port or place. Arrivals aboard all vessels other than ferries and pleasure vessels would be treated as sea arrivals. 41 41 For example, commercial vessels are treated as arrivals at sea ports-of-entry for purposes of this final rule. A commercial vessel is any civilian vessel being used to transport persons or property for compensation or hire to or from any port or place. A charter vessel that is leased or contracted to transport persons or property for compensation or hire to or from any port or place would be considered an arrival by sea under this rule. Arrivals by travelers on fishing vessels, research or seismic vessels, other service-type vessels (such as salvage, cable layers, etc.), or humanitarian service vessels (such as rescue vessels or hospital ships) are considered as arrivals by sea. Mexican nationals who hold BCCs will continue to be allowed to use their BCCs in lieu of a passport for admission at the land border from Mexico and when arriving by ferry or pleasure vessel from Mexico when traveling within the border zone for a limited time period. For travel beyond certain geographical limits or a stay over 30 days, Mexican nationals who enter the United States from Mexico possessing BCCs are required to obtain a Form I-94 from CBP. 42 The BCC is not permitted in lieu of a passport for commercial or other sea arrivals to the United States. 42 *See* 8 CFR 212.1(c)(1)(i); also 22 CFR 41.2 (g). If Mexicans are only traveling within a certain geographic area along the United States border with Mexico, usually up to 25 miles from the border but within 75 miles under the exception for Tucson, Arizona, they do not need to obtain a form I-94. If they travel outside of that geographic area, they must obtain an I-94 from CBP at the port-of-entry. 8 CFR 235.1(h)(1). Under current regulations, Mexican nationals may not use the FAST or SENTRI card in lieu of a passport or BCC. This will continue under the final rule, however, these participants would continue to benefit from expedited border processing. Currently, Mexican nationals who are admitted to the United States from Mexico solely to apply for a Mexican passport or other “official Mexican document” at a Mexican consulate in the United States located directly adjacent to a land port-of-entry are not currently required to present a valid passport. 43 This final rule eliminates this exception to the passport requirement for Mexican nationals. Under the final rule, Mexican nationals will be required to have a BCC or a passport with a visa to enter the United States for all purposes. 43 *See* 8 CFR 212.1(c)(1)(ii). D. State Enhanced Driver's License Projects DHS remains committed to considering travel documents developed by the various U.S. states and the Governments of Canada and Mexico in the future that would denote identity and citizenship and would also satisfy section 7209 of IRTPA, as amended by section 723 of the 9/11 Commission Act of 2007. Under this final rule, DHS will consider as appropriate documents such as state driver's licenses and identification cards that satisfy the WHTI requirements by denoting identity and citizenship. These documents must also have compatible technology, security criteria, and must respond to CBP's operational concerns. Such acceptable documents will be announced and updated by publishing a notice in the **Federal Register** . A list of such programs and documents will also be maintained on the CBP Web site. It is still anticipated that the Secretary of Homeland Security will designate documents that satisfy section 7209 and the technology, security, and operational concerns discussed above as documents acceptable for travel under section 7209. To date, DHS has entered into formal Memoranda of Agreement
(MOAs)with the States of Washington, Vermont, New York, and Arizona which have begun voluntary programs to develop an “enhanced driver's license” and identification card that would denote identity and citizenship. 44 Concurrent with this final rule, DHS is also publishing a separate notice in today's **Federal Register** wherein the Secretary of Homeland Security is designating that the State of Washington enhanced driver's license document is secure. Therefore, U.S. citizens may present the enhanced driver's licenses and identification cards issued by the State of Washington pursuant to the MOA at land and sea ports-of-entry when arriving from contiguous territory and adjacent islands. 44 On September 26, 2007, the Secretary of Homeland Security and the Governor of Vermont signed a similar Memorandum of Agreement for an enhanced driver's license and identification card to be used for border crossing purposes; on October 27, 2007, the Secretary and the Governor of New York also signed a similar Memorandum of Agreement. The state of Arizona has also announced its intention to sign an MOA with DHS to begin an enhanced driver's license project. For more information on these projects, see *http://www.dhs.gov.* DHS is continuing discussions on the development of enhanced driver's license projects with several other states and the Government of Canada. CBSA and several Canadian provinces are planning and developing EDL projects. DHS remains committed to working with and coordinating efforts among states interested in developing, testing, and implementing programs for enhanced driver's licenses on a continuing basis. DHS encourages states interested in developing enhanced driver's licenses to work closely with DHS to that end. On January 28, 2008, DHS published a final rule in the **Federal Register** concerning minimum standards for state-issued driver's licenses and identification cards that can be accepted for official purposes in accordance with the REAL ID Act of 2005. 45 DHS has worked to align REAL ID and EDL requirements. EDLs are being developed consistent with the requirements of REAL ID and, as such, can be used for official purposes such as accessing a Federal facility, boarding Federally-regulated commercial aircraft, and entering nuclear power plants. The enhanced driver's license will also include technologies that facilitate electronic verification and travel at ports-of-entry. While the proposed REAL ID requirements include proof of legal status in the U.S., the enhanced driver's license will require that the card holder be a U.S. citizen. 45 The REAL ID Act of 2005 prohibits Federal agencies, effective May 11, 2008, from accepting a driver's license or personal identification card for any official purpose unless the license or card has been issued by a State that is meeting the requirements set forth in the Act. *See* Pub. L. 109-13m 119 Stat. 231, 302 (May 11, 2005) (codified at 49 U.S.C. 30301 note). On March 9, 2007, DHS issued a rule proposing to establish minimum standards for State-issued driver's licenses and identification cards that Federal agencies would accept for official purposes after May 11, 2008. *See* 72 FR 10820. E. Future Documents Additionally, DHS and DOS remain committed to considering travel documents developed by the various U.S. states, Native American tribes and nations, and the Government of Canada in the future that would satisfy section 7209 of IRTPA. Both DHS and DOS continue to engage with the Government of Canada and various provinces in discussions of alternative documents that could be considered for border crossing use at land and sea ports of entry. Other alternative identity and citizenship documents issued by the Government of Canada will be considered, as appropriate. The Departments welcome comments suggesting alternative Canadian documents. Various Canadian provinces have indicated their interest or intention in pursuing projects with enhanced driver's licenses similar to the Washington State, Vermont and Arizona programs with DHS. Because documents accepted for border crossing under WHTI must denote citizenship, the participation of the Government of Canada in determinations of citizenship on behalf of its citizens, and recognition of this determination, is a strong consideration by the United States in the acceptance of documents for Canadian citizens. We will consider additional documents in the future, as appropriate. VI. Special Rules for Specific Populations A. U.S. Citizen Cruise Ship Passengers Because of the nature of round trip cruise ship travel, DHS has determined that when U.S. citizens depart from and reenter the United States on board the same cruise ship, they pose a low security risk in contrast to cruise ship passengers who embark in foreign ports. DHS and DOS have adopted the following alternative document requirement for U.S. cruise ship passengers. For purposes of the final rule, a cruise ship is defined as a passenger vessel over 100 gross tons, carrying more than twelve passengers for hire, making a voyage lasting more than 24 hours any part of which is on the high seas, and for which passengers are embarked or disembarked in the United States or its territories. 46 46 For this final rule, DHS adopts the definition of a cruise ship used by the U.S. Coast Guard. *See* 33 CFR 101.105. U.S. citizen cruise ship passengers traveling within the Western Hemisphere are permitted to present a government-issued photo identification document in combination with either:
(1)An original or a copy of a birth certificate,
(2)a Consular Report of Birth Abroad issued by DOS, or
(3)a Certificate of Naturalization issued by U.S. Citizenship and Immigration Services (USCIS), when returning to the United States, under certain conditions: • The passengers must board the cruise ship at a port or place within the United States; and • The passengers must return on the same ship to the same U.S. port or place from where they originally departed. On such cruises, U.S. Citizens under the age of 16 may present an original or a copy of a birth certificate, a Consular Report of Birth Abroad, or a Certificate of Naturalization issued by U.S. Citizenship and Immigration Services. All passengers arriving on a cruise ship that originated at a foreign port or place are required to present travel documents that comply with applicable document requirements otherwise specified in this final rule when arriving in the United States. For voyages where the cruise ship originated in the United States, if any new passengers board the ship at a foreign port or place or another location in the United States, the new passengers will have to present travel documents that comply with applicable document requirements otherwise specified in this final rule when arriving in the United States. U.S. citizen cruise ship passengers that fall under this alternative document requirement are reminded to carry appropriate travel documentation to enter any foreign countries on the cruise. If the ship returns to a U.S. port different from the point of embarkation, all passengers must carry a passport or other WHTI compliant documentation. B. U.S. and Canadian Citizen Children The U.S. government currently requires all children arriving from countries outside the Western Hemisphere to present a passport when entering the United States. Currently, children (like adults) from the United States, Canada, and Bermuda are not required to present a passport when entering the United States by land or sea from contiguous territory or adjacent islands, other than Cuba. Mexican children are currently required to present either a passport and visa, or a BCC upon arrival in the United States, as discussed above. DHS, in consultation with DOS, has adopted the procedures below in this final rule. 1. Children Under Age 16 Under the final rule, all U.S. citizen children under age 16 are permitted to present either:
(1)An original or a copy of a birth certificate;
(2)a Consular Report of Birth Abroad issued by DOS; or
(3)a Certificate of Naturalization issued by USCIS, at all sea and land ports-of-entry when arriving from contiguous territory. Canadian citizen children under age 16 are permitted to present an original or a copy of a birth certificate, a Canadian Citizenship Card, or Canadian Naturalization Certificate at all sea and land ports-of-entry when arriving from contiguous territory. U.S. and Canadian children age 16 and over who arrive from contiguous territory are subject to the WHTI document requirements otherwise specified in this final rule. All Canadian birth certificates are issued from a centralized location within the provinces and territories. Each province or territory can issue two types of birth certificates: a long form, which is a one-page paper document similar to U.S. birth certificates, or a short form, which is a laminated card version of the long form. All versions of the birth certificate throughout the provinces are similar in format (paper form or laminated card). All Canadian-issued birth certificates are considered by the Government of Canada as certified and are accepted by CBSA. Both the long and short forms of certified Canadian birth certificates issued by the provinces and territories are permissible documents under the final rule. 2. Children Under Age 19 Traveling in Groups Under this final rule, U.S. citizen children under age 19 who are traveling with public or private school groups, religious groups, social or cultural organizations, or teams associated with youth sport organizations that arrive at U.S. sea or land ports-of-entry from contiguous territory, may present either:
(1)An original or a copy of a birth certificate;
(2)a Consular Report of Birth Abroad issued by DOS; or
(3)a Certificate of Naturalization issued by USCIS, when the groups are under the supervision of an adult affiliated with the organization (including a parent of one of the accompanied children who is only affiliated with the organization for purposes of a particular trip) and when all the children have parental or legal guardian consent to travel. Canadian citizen children under age 19 may present an original or a copy of a birth certificate, a Canadian Citizenship Card, or Canadian Naturalization Certificate at all sea and land ports-of-entry when arriving from contiguous territory. For purposes of this alternative procedure, an adult would be considered to be a person age 19 or older, and a group would consist of two or more people. The group, organization, or team will be required to contact CBP upon crossing the border at the port-of-entry and provide on organizational letterhead:
(1)The name of the group, organization or team and the name of the supervising adult;
(2)a list of the children on the trip;
(3)for each child, the primary address, primary phone number, date of birth, place of birth, and name of at least one parent or legal guardian; and
(4)the written and signed statement of the supervising adult certifying that he or she has obtained parental or legal guardian consent for each participating child. The group, organization, or team would be able to demonstrate parental or legal guardian consent by having the adult leading the group sign and certify in writing that he or she has obtained parental or legal guardian consent for each participating child. For Canadian children, in addition to the information indicated above, a trip itinerary, including the stated purpose of the trip, the location of the destination, and the length of stay would be required. To avoid delays upon arrival at a port-of-entry, CBP would recommend that the group, organization, or team provide this information to that port-of-entry well in advance of arrival, and would recommend that each participant traveling on the trip carry in addition to the above mentioned documents a government or school issued photo identification document, if available. Travelers with the group who are age 19 and over are subject to the generally applicable travel document requirements specified in 8 CFR parts 211, 212 or 235 and 22 CFR parts 41 or 53. Based upon a review of the alternative approach for children and the parental consent questions asked in the Land and Sea NPRM, DHS and DOS are not implementing any additional requirements regarding children such as parental consent to travel. C. American Indian Card Holders From Kickapoo Band of Texas and Tribe of Oklahoma Under the final rule, U.S. citizen members of the Kickapoo Band of Texas and Tribe of Oklahoma are permitted to present the Form I-872 American Indian Card in lieu of a passport or passport card at all sea and land ports of entry when arriving from contiguous territory or adjacent islands. Mexican national members of the Kickapoo Band of Texas and Tribe of Oklahoma are permitted to present the I-872 in lieu of either a passport and visa, or a BCC at sea and land ports-of-entry when arriving from contiguous territory or adjacent islands. D. Members of United States Native American Tribes For the reasons discussed above, upon full implementation of this final rule and if designated by the Secretary of Homeland Security as acceptable under WHTI, Native American enrollment or identification cards from a federally-recognized tribe or group of federally recognized tribes will be permitted for use at entry at any land and sea port-of-entry when arriving from contiguous territory or adjacent islands. E. Canadian Indians For the reasons discussed above, upon full implementation of this final rule and if designated by the Secretary of Homeland Security, the proposed new Indian and Northern Affairs Canada
(INAC)card to be issued by LTS and to contain a photograph and an MRZ, may also be presented as evidence of the citizenship and identity of Canadian Indians when they seek to enter the United States from Canada at land ports-of-entry. F. Individual Cases of Passport Waivers The passport requirement may be waived for U.S. citizens in certain individual situations on a case-by-case basis, such as an unforeseen emergency or cases of humanitarian or national interest. 47 Existing individual passport waivers for non-immigrant aliens are not changed by the final rule. 48 47 *See* section 7209(c)(2) of IRTPA. *See also* 22 CFR 53.2. 48 *See* 8 CFR Part 212. G. Summary of Document Requirements The following chart summarizes the acceptable documents for sea and land arrivals from the Western Hemisphere under WHTI. The Departments note that document requirements for Lawful Permanent Residents
(LPRs)of the United States, employees of the International Boundary and Water Commission
(IBWC)between the United States and Mexico, OCS workers, active duty alien members of the U.S. Armed Forces, and members of NATO-member Armed Forces, as discussed in the Land and Sea NPRM, remain unchanged. Group/population Acceptable document(s) Land Ferry Pleasure vessel Sea (all other vessels) All Travelers (U.S., Can., Mex., Berm.) at all sea and land POEs Valid Passport book (and valid visa, if necessary for foreign travelers) Yes Yes Yes Yes. U.S. Citizens at all sea and land POEs when arriving from Canada, Mexico, the Caribbean, and Bermuda Valid Passport card Yes Yes Yes Yes. U.S. and Canadian citizen Trusted Traveler Members at all sea and land POEs when arriving from contiguous territory or adjacent islands Trusted Traveler Cards (NEXUS, FAST, SENTRI) Yes* Yes* Yes* * Yes. U.S. Citizen Merchant Mariners on official mariner business at all sea and land POEs U.S. Merchant Mariner Document
(MMD)Yes Yes Yes Yes. Mexican Nationals arriving from Mexico Border Crossing Card
(BCC)Yes** Yes** Yes** No. U.S. Citizen Cruise Ship Passengers on round trip voyages that begin and end in the same U.S. port Government-issued photo ID and original or copy of birth certificate; under age 16, birth certificate N/A N/A N/A Yes—for round trip voyages that originate in U.S. U.S. and Canadian Citizen Children Under 16 at all sea and land POEs when arriving from contiguous territory Original or copy of birth certificate*** (government-issued photo ID recommended, but not required) Yes Yes Yes Yes. U.S. and Canadian Citizen Children—Groups of Children Under Age 19, under adult supervision with parental/guardian consent at all sea and land POEs when arriving from contiguous territory Original or copy of birth certificate*** and parental/guardian consent (government -issued photo ID recommended, but not required) Yes Yes Yes Yes. U.S. Citizen/Alien Members of U.S. Armed Forces traveling under official orders or permit at all air, sea and land POEs Military ID and Official Orders Yes Yes Yes Yes. U.S. and Mexican Kickapoo at land and sea POEs when arriving from contiguous territory and adjacent islands Form I-872 American Indian Card Yes Yes Yes Yes. U.S. citizen members of Native American tribes recognized by the U.S. Government when arriving from contiguous territory at land and sea POEs Tribal Enrollment Documents designated by the Secretary of Homeland Security as meeting WHTI tribal document security Yes Yes Yes Yes. Canadian citizen members of First Nations or bands recognized by the Canadian Government when arriving from Canada at land POEs If designated by the Secretary of Homeland Security, the proposed new INAC card issued by the Government of Canada containing an MRZ Yes Yes Nos No. * Approved for Mexican national members traveling with BCC or a passport and visa. ** In conjunction with a valid I-94 for travel outside the 25- or 75-mile geographic limits of the BCC. *** U.S. children would also be permitted to present a Certificate of Birth Abroad or Certificate of Naturalization; Canadian children would be permitted to present a Canadian Citizenship Card or Canadian Naturalization Certificate. VII. Regulatory Analyses A. Executive Order 12866: Regulatory Planning and Review This final rule implementing the second phase of WHTI for entries by land and sea is considered to be an economically significant regulatory action under Executive Order 12866 because it may result in the expenditure of over $100 million in any one year. Accordingly, this rule has been reviewed by the Office of Management and Budget (OMB). The following summary presents the costs and benefits of requirements for U.S. citizens entering the United States from other countries in the Western Hemisphere by land and sea, plus the costs and benefits of several alternatives considered during the rulemaking process. The regulatory assessments summarized here consider U.S. travelers entering the United States via land ports-of-entry on the northern and southern borders (including arrivals by ferry and pleasure boat) as well as certain cruise ship passengers. Costs to obtain the necessary documentation for air travel were considered in a previous analysis examining the implementation of WHTI in the air environment (the Regulatory Assessment for the November 2006 Final Rule for implementation of WHTI in the air environment can be found at *www.regulations.gov* ; document number USCBP-2006-0097-0108). If travelers have already purchased a passport for travel in the air environment, they would not need to purchase a passport for travel in the land or sea environments. CBP does not attempt to estimate with any precision the number of travelers who travel in more than one environment, and, therefore, may have already obtained a passport due to the air rule and will not incur any burden due to this rule. To the extent that the three traveling populations overlap in the air, land, and sea environments, we have potentially overestimated the direct costs of the rule presented here. The period of analysis is 2005-2018 (14 years). We calculate costs beginning in 2005 because although the suite of WHTI rules was not yet in place, DOS experienced a dramatic increase in passport applications since the WHTI plan was announced in early 2005. We account for those passports obtained prior to full implementation to more accurately estimate the economic impacts of the rule as well as to incorporate the fairly sizable percentage of travelers who currently hold passports in anticipation of the new requirements. The Secretary of Homeland Security is designating CBP trusted traveler cards (NEXUS, SENTRI, FAST), the Merchant Mariner Document (MMD), and specified documents from DHS-approved enhanced driver's license programs as acceptable travel documents for U.S. citizens to enter the United States at land and sea ports-of-entry. Because DHS and DOS believe that children under the age of 16 pose a low security threat in the land and sea environments, U.S. children may present a birth certificate in lieu of other designated documents. Additionally, DHS and DOS have determined that exempting certain cruise passengers from a passport requirement is the best approach to balance security and travel efficiency considerations in the cruise ship environment. To meet the cruise exemption, a passenger must board the cruise ship at a port or place within the United States and the passenger must return on the same ship to the same U.S. port or place from where he or she originally departed. For the summary of the analysis presented here, CBP assumes that only the passport, trusted traveler cards, and the MMD were available in the first years of the analysis (recalling that the period of analysis begins in 2005 when passport cards and enhanced driver's licenses were not yet available). CBP also assumes that most children under 16 will not obtain a passport or passport card but will instead use alternative documentation (birth certificates). The estimates reflect that CBP trusted traveler cards will be accepted at land and sea ports-of-entry. Finally, CBP assumes that most of the U.S. cruise passenger population will present alternative documentation (government-issued photo ID and birth certificate) because they meet the alternative documentation provision in the rule. To estimate the costs of the rule, we follow this general analytical framework: —Determine the number of U.S. travelers that will be covered —Determine how many already hold acceptable documents —Determine how many will opt to obtain passports (and passport cards) and estimate their lost “consumer surplus” —Determine how many will forgo travel instead of obtaining passports or passport cards and estimate their lost “consumer surplus” We estimate covered land travelers using multiple sources, including: crossing data from the Bureau of Transportation Statistics (BTS, 2004 data), a study of passport demand conducted by DOS (completed in 2005), and a host of regional studies conducted by state and local governments and academic research centers. Other than DOS's passport demand study, no source exists to our knowledge that has estimated the total number of land entrants nationwide. Researchers almost always count or estimate crossings, not crossers and focus on a region or locality, not an entire border. Building on the work conducted for DOS's passport study, we distilled approximately 300 million annual crossings into the number of frequent (defined as at least once a year), infrequent (once every three years), and rare (once every ten years) “unique U.S. adult travelers.” We then estimate the number of travelers without acceptable documentation and estimate the cost to obtain a document. The fee for the passport varies depending on the age of the applicant, whether or not the applicant is renewing a passport, whether or not the applicant is requesting expedited service, and whether or not the applicant obtains a passport or a passport card. Additionally, we consider the amount of time required to obtain the document and the value of that time. To estimate the value of an applicant's time in the land environment, we conducted new research that built on existing estimates from the Department of Transportation. To estimate the value of an applicant's time in the sea environment, we use estimates for air travelers' value of time (air and sea travelers share very similar characteristics) from the Federal Aviation Administration (FAA, 2005 data). We use the 2005 DOS passport demand study and CBP statistics on the trusted traveler programs to estimate how many unique U.S. travelers already hold acceptable documents. We estimate covered cruise passengers using data from the Maritime Administration (MARAD, 2006 data) and itineraries available on the cruise line Web sites (for 2007). The overwhelming majority of Western Hemisphere cruise passengers—92 percent—would fall under the cruise-passenger alternative documentation provision. Passengers not covered by the alternative documentation provision fall into four trade markets—Alaska (72 percent), Trans-Panama Canal (16 percent), U.S. Pacific Coast (8 percent), and Canada/New England (4 percent). We estimate that these passengers will have to obtain a passport rather than one of the other acceptable documents because these travelers will likely have an international flight as part of their cruise vacation, and only the passport is a globally accepted travel document. We use a comment to the August 2006 NPRM for implementation of WHTI in the air and sea environments (71 FR 46155) from the International Council of Cruise Lines to estimate how many unique U.S. cruise travelers already hold acceptable documentation. Based on CBP's analysis, approximately 3.6 million U.S. travelers are affected in the first year of implementation, 2009 (note that the analysis anticipates a significant number of travelers will obtain WHTI-compliant documents in 2005 through 2008, prior to the implementation of the rule. In addition, travelers who only make trips in the first half of 2009 will not be covered by the rule). Of these, approximately 3.5 million enter through a land-border crossing (via privately owned vehicle, commercial truck, bus, train, on foot) and ferry and recreational boat landing sites. An estimated 0.1 million are cruise passengers who do not meet the alternative documentation provision in the final rule (note that over 90 percent of U.S. cruise passengers are expected to meet the exemption criteria). CBP estimates that the traveling public will acquire approximately 3.1 million passports in 2009, at a direct cost to traveling individuals of $283 million. These estimates are summarized in Table A. Table A.—First-Year Estimates for U.S. Adult Travelers [All estimates in millions] Affected travelers: Land/ferry/pleasure boat crossers 3.5 Cruise passengers 0.1 Total 3.6 Passports demanded: Land/ferry/pleasure boat crossers 3.1 Cruise passengers 0.1 Total 3.2 Total cost of passports: Land-border crossers $272 Cruise passengers 11 Total $283 To estimate potential forgone travel in the land environment, we derive traveler demand curves for access to Mexico and Canada based on survey responses collected in DOS's passport study. We estimate that when the rule is implemented, the number of unique U.S. travelers to Mexico who are frequent travelers decreases by 5.7 percent, the unique U.S. travelers who are infrequent travelers decreases by 6.4 percent, and the unique U.S. travelers who are rare travelers decreases by 15.7 percent. The number of U.S. travelers visiting Canada who are frequent travelers decreases by 3.3 percent, the unique U.S. travelers who are infrequent travelers decreases by 9.5 percent, and the unique U.S. travelers who are rare travelers decreases by 9.6 percent. These estimates account for the use of a passport card for those travelers who choose to obtain one. For unique travelers deciding to forgo future visits, their implied value for access to these countries is less than the cost of obtaining a passport card. To estimate potential forgone travel in the sea environment, we use a study from Coleman, Meyer, and Scheffman (2003), which described the Federal Trade Commission investigation into potential impacts of two cruise-line mergers and estimated a demand elasticity for cruise travel. We estimate that the number of travelers decreases by 24 percent, 13 percent, 7 percent, and 6 percent for travelers on short (1 to 5 nights), medium (6 to 8 nights), long (9 to 17 nights), and very long cruises (over 17 nights) once the rule is implemented. We then estimate total losses in consumer surplus. The first figure below represents U.S. travelers' willingness to pay (D 1 ) for access to Mexico and Canada. At price P 1 , the number of U.S. travelers without passports currently making trips to these countries is represented by Q 1 . As seen in the second figure, if the government requires travelers to obtain a passport or passport card in order to take trips to Mexico and Canada, the price of access increases by the cost of obtaining the new document, to P 2 . As a result, the number of travelers making trips to these countries decreases to Q 2 . BILLING CODE 9111-14-P ER03AP08.007 BILLING CODE 9111-14-C All travelers in this figure experience a loss in consumer surplus; the size of the surplus loss depends on their willingness to pay for access to these countries. The lost surplus experienced by travelers whose willingness to pay exceeds P <sup>2</sup> is shown in the dark blue rectangle, and is calculated as (P <sup>2</sup> −P <sup>1</sup> ) * Q <sup>2</sup> . Travelers whose willingness to pay for access to these countries is less than the price of the passport or passport card will experience a loss equal to the area of the aqua triangle, calculated as 1/2 * (Q <sup>1</sup> −Q <sup>2</sup> ) * (P <sup>2</sup> −P <sup>1</sup> ). Costs of the rule (expressed as losses in consumer surplus) are summed by year of the analysis. We then add the government costs of implementing WHTI over the period of analysis. Fourteen-year costs are $3.3 billion at the 3 percent discount rate and $2.7 billion at 7 percent, as shown in Table B. Annualized costs are $296 million at 3 percent and $314 million at 7 percent. Table B.—Total Costs for U.S. Travelers Over the Period of Analysis [2005-2018, in $millions] Year Cost 3% discount rate 7% discount rate 2005 $435 $435 $435 2006 153 148 143 2007 91 85 79 2008 493 451 406 2009 431 383 333 2010 352 304 255 2011 270 226 183 2012 235 191 149 2013 235 186 140 2014 290 222 159 2015 314 234 161 2016 250 181 120 2017 225 158 101 2018 201 137 84 Total $3,340 $2,748 The primary analysis for land summarized here assumes a constant number of border crossers over the period of analysis; in the complete Regulatory Assessment we also consider scenarios where the number of border crossers both increases and decreases over the period of analysis. It is worth noting that border crossings have been mostly decreasing at both the northern and southern borders since 1999. The analysis for sea travel assumes a 6 percent annual increase in passenger counts over the period of analysis as the Western Hemisphere cruise industry continues to experience growth. Finally, we conduct a formal uncertainty (Monte Carlo) analysis to test our assumptions for the analysis in the land environment. We first conducted a preliminary sensitivity analysis to identify the variables that have the most significant effect on consumer welfare losses. We found that the frequency of travel (frequent, infrequent, rare), crossings at multiple ports-of-entry, future annual affected individuals, and the amount of time spent applying for documentation were the most sensitive variables in the analysis. The variables that did not appear to have an impact on consumer losses were the estimated number of crossings by Lawful Permanent Residents or Native Americans and estimated future timing with which travelers will apply for acceptable documentation. After we conducted our formal Monte Carlo analysis we found that our most sensitive assumptions are: The projected crossing growth rate, the frequency of travel, and the number of new unique travelers that enter the population annually. The results of the Monte Carlo analysis are presented in Table C. Note that these estimates do not include the government costs of implementation, estimated to be $0.8 billion over the time period of the analysis (3 percent discount rate) because we have no basis for assigning uncertainty parameters for government costs. Table C.—Summary of Key Characteristics of Probability Distributions of Total Welfare Losses in the Land Environment (2005-2018, in $Billions), 3 Percent Discount Rate Statistic Value Trials 10,000 Mean $2.2 Median $2.1 Std Dev $0.5 Variance 2.4E+08 5th Percentile $1.5 95th Percentile $3.1 Point Estimate $2.3 We then consider the secondary impacts of forgone travel in the land and sea environments. Forgone travel will result in gains and losses in the United States, Canada, and Mexico. For this analysis, we made the simplifying assumption that if U.S. citizens forgo travel to Canada and Mexico, their expenditures that would have been spent outside the country now remain here. In this case, industries receiving the diverted expenditure in the United States experience a gain, while the travel and related industries in Canada and Mexico suffer a loss. Conversely, if Canadian and Mexican citizens forgo travel to the United States, their potential expenditures remain abroad—a loss for the travel and related industries in the United States, but a gain to Canada and Mexico. Note that “gains” and “losses” in this analysis cannot readily be compared to the costs and benefits of the rule, since they represent primarily transfers in and out of the U.S. economy. For cruise passengers, we have only rough estimates of where U.S. passengers come from, how they travel to and from the ports where they embark, where they go, and the activities they engage in while cruising. We know even less about how they will alter their behavior if they do, in fact, forgo obtaining a passport. Ideally, we could model the indirect impacts of the rule with an input-output model (either static or dynamic) that could give us a reasonable estimation of the level the impact, the sectors affected, and regional impacts. Unfortunately, given the dearth of data, the assumptions we had to make, the very small numbers of travelers who are estimated to forgo travel, and the fact that much of their travel experience occurs outside the United States, using such a model would not likely produce meaningful results. We recognize, however, that multiple industries could be indirectly affected by forgone cruise travel, including (but not limited to): Cruise lines; cruise terminals and their support services; air carriers and their support services; travel agents; traveler accommodations; dining services; retail shopping; tour operators; scenic and sightseeing transportation; hired transportation (taxis, buses); and arts, entertainment, and recreation. According to the MARAD dataset used for the sea analysis, there are 17 cruise lines operating in the Western Hemisphere, 9 of which are currently offering cruises that would be indirectly affected by a passport requirement. While we expect that cruise lines will be indirectly affected by the rule, how they will be affected depends on their itineraries, the length of their cruises, their current capacity, and future expansion, as well as by travelers' decisions. We expect short cruises (1 to 5 nights) to be most notably affected because the passport represents a greater percentage of the overall trip cost, passengers on these cruises are less likely to already hold a passport, and travel plans for these cruises are frequently made closer to voyage time. Longer cruises are less likely to be affected because these trips are planned well in advance, passengers on these voyages are more likely to already possess a passport, and the passport cost is a smaller fraction of the total trip cost. Because border-crossing activity is predominantly a localized phenomenon, and the activities engaged in while visiting the United States are well documented in existing studies, we can explore the potential impacts of forgone travel more quantitatively in the land environment. Using various studies on average spending per trip in the United States, Canada, and Mexico, we estimate the net results of changes in expenditure flows in 2008 (the presumed first year the requirements will be implemented) and subsequent years. Because Mexican crossers already possess acceptable documentation to enter the United States (passport or Border Crossing Card), we do not estimate that Mexican travelers will forgo travel to the United States. The summary of expenditure flows is presented in Table D. Table D.—Net Expenditure Flows in North America, 2009, 2010, and Subsequent Years [In millions] 2009: Spending by U.S. travelers who forgo travel to Mexico +$160 Spending by Mexican travelers who forgo travel to the United States 0 Spending by U.S. travelers who forgo travel to Canada +60 Spending by Canadian travelers who forgo travel to United States −400 Net −180 2010: Spending by U.S. travelers who forgo travel to Mexico +280 Spending by Mexican travelers who forgo travel to the United States 0 Spending by U.S. travelers who forgo travel to Canada +110 Spending by Canadian travelers who forgo travel to United States −440 Net −50 Subsequent years (annual): Spending by U.S. travelers who forgo travel to Mexico +280 Spending by Mexican travelers who forgo travel to United States 0 Spending by U.S. travelers who forgo travel to Canada +110 Spending by Canadian travelers who forgo travel to United States −330 Net +60 To examine these impacts more locally, we conduct eight case studies using a commonly applied input-output model (IMPLAN), which examines regional changes in economic activity given an external stimulus affecting those activities. In all of our case studies but one, forgone border crossings attributable to WHTI have a less-than-1-percent impact on the regional economy both in terms of output and employment. The results of these eight case studies are presented in Table E. Table E.—Modeled Distributional Effects in Eight Case Studies Study area (counties) State Change as % of total* * * Output Employment San Diego California +0.02 +0.03 Pima, Santa Cruz Arizona +0.02 +0.02 Hidalgo, Cameron Texas +0.1 +0.1 Presidio Texas +0.4 +0.4 Niagara, Erie New York −0.2 −0.3 Washington Maine −1.4 −3.2 Macomb, Wayne, Oakland Michigan −0.02 −0.04 Whatcom Washington −0.5 −1.3 As shown, we anticipate very small net positive changes in the southern-border case studies because Mexican travelers to the United States use existing documentation, and their travel is not affected. The net change in regional output and employment is negative (though still very small) in the northern-border case studies because Canadian travelers forgoing trips outnumber U.S. travelers staying in the United States and because Canadian travelers to the United States generally spend more per trip than U.S. travelers to Canada. On both borders, those U.S. travelers that forgo travel do not necessarily spend the money they would have spent outside the United States in the case-study region; they may spend it outside the region, and thus outside the model. Finally, because the benefits of homeland security regulations cannot readily be quantified using traditional analytical methods, we conduct a “breakeven analysis” to determine what the reduction in risk would have to be given the estimated costs of the implementation of WHTI (land environment only). Using the Risk Management Solutions U.S. Terrorism Risk Model (RMS model), we estimated the critical risk reduction that would have to occur in order for the costs of the rule to equal the benefits—or break even. The RMS model has been developed for use by the insurance industry and provides a comprehensive assessment of the overall terrorism risk from both foreign and domestic terrorist organizations. The RMS model generates a probabilistic estimate of the overall terrorism risk from loss estimates for dozens of types of potential attacks against several thousand potential targets of terrorism across the United States. For each attack mode-target pair (constituting an individual scenario) the model accounts for the probability that a successful attack will occur and the consequences of the attack. RMS derives attack probabilities from a semi-annual structured expert elicitation process focusing on terrorists' intentions and capabilities. It bases scenario consequences on physical modeling of attack phenomena and casts target characteristics in terms of property damage and casualties of interest to insurers. Specifically, property damages include costs of damaged buildings, loss of building contents, and loss from business interruption associated with property to which law enforcement prohibits entry immediately following a terrorist attack. RMS classifies casualties based on injury-severity categories used by the worker compensation insurance industry. The results in Table F are based on the annualized cost estimate (assuming a seven percent discount rate) of the rule presented above. These results show that a decrease in perceived risk (the “low risk” scenario generated by RAND to characterize the expected annual losses in the United States from terrorist attacks) leads to a smaller annualized loss and a greater required critical risk reduction for the benefits of the rule to break even with costs. Conversely, an increase in perceived risk (the “high risk” scenario) leads to a greater annualized loss and a smaller required critical risk reduction. The total range in critical risk reduction under the standard threat outlook produced by the RMS model is a factor of three and ranges from 5.5 to 14 percent depending on the methodology used to value the benefits of avoided terrorist attacks (the value of avoided injuries and deaths). Table F.—Critical Risk Reduction for the Rule [7 percent discount rate] Valuation methodology Critical risk reduction (%) Low Standard High Cost of injury (fatality = $1.1m) 27 14 6.8 Willingness to pay (VSL = $3m) 21 10 5.2 Quality of life (VSL = $3m) 18 8.8 4.4 Willingness to pay (VSL = $6m) 14 7.0 3.5 Quality of life (VSL = $6m) 11 5.5 2.8 Several key factors affect estimates of the critical risk reduction required for the benefits of the rule to equal or exceed the costs. These factors include: the uncertainty in the risk estimate produced by the RMS model; the potential for other types of baseline losses not captured in the RMS model; and the size of other non-quantified direct and ancillary benefits of the rule. The RMS model likely underestimates total baseline terrorism loss because it only reflects the direct, insurable costs of terrorism. It does not include any indirect losses that would result from continued change in consumption patterns or preferences or that would result from propagating consequences of interdependent infrastructure systems. For example, the RMS model does not capture the economic disruption of a terrorism event beyond the immediate insured losses. Furthermore, the model also excludes non-worker casualty losses and losses associated with government buildings and employees. Finally, the model may not capture less-tangible components of losses that the public wishes to avoid, such as the fear and anxiety associated with experiencing a terrorist attack. Omission of these losses will cause us to overstate the necessary risk reductions. Although the risk reduction associated with the final rule cannot be quantified due to data limitations, a separate analysis of the potential benefits resulting from reductions in wait time at the border suggests that the net benefits of the rule (total benefits minus total costs) have the potential to be positive. In a separate effort, CBP estimated the costs and benefits of processing technology investments at ports-of-entry. As part of this analysis, analysts evaluated the wait time impact attributable to each technology alternative. The results suggest that implementing standard documents and RFID technology could result in reductions in wait time valued as highly as $2.4 billion to $3.3 billion between 2009 and 2018 (discount rates of 7 and 3 percent, respectively). Subtracting total present value costs suggests the potential for net benefits as high as $0.9 billion to $1.7 billion (discount rates of 7 and 3 percent, respectively). Alternatives to the Rule CBP considered the following alternatives to the final rule— 1. Require all U.S. travelers (including children) to present a valid passport book upon return to the United States from countries in the Western Hemisphere. 2. Require all U.S. travelers (including children) to present a valid passport book, passport card, or CBP trusted traveler document upon return to the United States from countries in the Western Hemisphere. 3. Alternative 2, but without RFID-enabled passport cards. Calculations of costs for the alternatives can be found in the two Regulatory Assessments for the final rule. *Alternative 1:* Require all U.S. travelers (including children) to present a valid passport book. The first alternative would require all U.S. citizens, including minors under 16 and all cruise passengers, to present a valid passport book only. This alternative was rejected as potentially too costly and burdensome for low-risk populations of travelers. While the passport book will always be an acceptable document for a U.S. citizen to present upon entry to the United States, DHS and DOS believe that the cost of a traditional passport book may be too expensive for some U.S. citizens, particularly those living in border communities where land-border crossings are an integral part of everyday life. As stated previously, DHS and DOS, believe that children under the age of 16 pose a low security threat in the land and sea environments and will be permitted to present a birth certificate when arriving in the United States at all land and sea ports-of-entry from contiguous territory. DHS and DOS have also determined that designating alternative documentation for certain cruise passengers from a passport requirement is the best approach to balance security and travel efficiency considerations in the cruise ship environment. *Alternative 2:* Require all U.S. travelers (including children) to present a valid passport book, passport card, or trusted traveler document. The second alternative is similar to the final rule, though it includes children and does not provide a passport exception for cruise passengers. While this alternative incorporates the low-cost passport card and CBP trusted traveler cards as acceptable travel documents, this alternative was ultimately rejected as potentially too costly and burdensome for low-risk populations of travelers (certain cruise passengers and minors under 16). *Alternative 3:* Require all U.S. travelers (including children) to present a valid passport book, passport card, or trusted traveler document; no RFID-enabled passport card. The third alternative is similar to the second; it just now assumes that the passport card is not enabled with RFID technology. For this analysis, we assume that this does not change the fee charged for the passport card; we assume, however, that government costs to test and deploy the appropriate technology at the land borders to read the passport cards are eliminated. This alternative was rejected because DHS and DOS strongly believe that facilitation of travel, particularly at the land borders where wait times are a major concern, should be a primary achievement of WHTI implementation. Table G presents a comparison of the costs of the final rule and the alternatives considered. Table G.—Comparison of Regulatory Alternatives [In $millions] Alternative 13-year cost (7%) Compared to final rule Reason rejected Final rule $2,748 n/a Alternative 1: Passport book only for all U.S. travelers $6,728 +$3,979 Cost of a passport considered too high for citizens in border communities; low-risk traveling populations (certain cruise passengers, children under 16) unduly burdened. Alternative 2: Passport book, passport card, and other designated documents for all U.S. travelers $5,751 +$3,003 Low-risk traveling populations (certain cruise passengers, children under 16) unduly burdened. Alternative 3: Passport book, passport card, and other designated documents for all U.S. travelers; no RFID-enabled passport card $5,340 +$2,591 Low-risk traveling populations (certain cruise passengers, children under 16) unduly burdened, unacceptable wait times at land-border ports of entry. It is important to note that for scenarios where the RFID-capable passport card is acceptable (the final rule and Alternative 2), the estimates include government implementation costs for CBP to install the appropriate technology at land ports-of-entry to read RFID-enabled passport cards and the next generation of CBP trusted traveler documents. These technology deployment costs are estimated to be substantial, particularly in the early phases of implementation. As a result, the alternatives allowing more documents than just the passport book result higher government costs over thirteen years than alternatives allowing only the passport book or the passport card that is not RFID-enabled, which can be processed with existing readers that scan the passport's machine-readable zone. Allowing presentation of alternative documentation for minors and most cruise passengers results in notable cost savings over thirteen years (about $2.5 billion to $4.0 billion depending on the documents considered). Accounting statement As required by OMB Circular A-4, CBP has prepared an accounting statement showing the classification of the expenditures associated with this rule. The table below provides an estimate of the dollar amount of these costs and benefits, expressed in 2005 dollars, at 7 percent and 3 percent discount rates. We estimate that the cost of this rule will be approximately $314 million annualized (7 percent discount rate) and approximately $296 million annualized (3 percent discount rate). Non-quantified benefits are enhanced security and efficiency. Accounting Statement: Classification of Expenditures, 2005-2017 [2005 Dollars] 3% discount rate 7% discount rate Costs: Annualized monetized costs $296 million $314 million. Annualized quantified, but un-monetized costs Indirect costs to the travel and tourism industry Indirect costs to the travel and tourism industry. Qualitative (un-quantified) costs Indirect costs to the travel and tourism industry Indirect costs to the travel and tourism industry. Benefits: Annualized monetized benefits None quantified None quantified. Annualized quantified, but un-monetized benefits None quantified None quantified. Qualitative (un-quantified) benefits Enhanced security and efficiency Enhanced security and efficiency. B. Regulatory Flexibility Act CBP has prepared this section to examine the impacts of the final rule on small entities as required by the Regulatory Flexibility Act (RFA). 49 A small entity may be a small business (defined as any independently owned and operated business not dominant in its field that qualifies as a small business per the Small Business Act); a small not-for-profit organization; or a small governmental jurisdiction (locality with fewer than 50,000 people). 49 *See* 5 U.S.C. 601-612. When considering the impacts on small entities for the purpose of complying with the RFA, CBP consulted the Small Business Administration's guidance document for conducting regulatory flexibility analyses. 50 Per this guidance, a regulatory flexibility analysis is required when an agency determines that the rule will have a significant economic impact on a substantial number of small entities that are subject to the requirements of the rule. 51 This guidance document also includes a good discussion describing how direct and indirect costs of a regulation are considered differently for the purposes of the RFA. CBP does not believe that small entities are subject to the requirements of the rule; individuals are subject to the requirements, and individuals are not considered small entities. To wit, “The courts have held that the RFA requires an agency to perform a regulatory flexibility analysis of small entity impacts only when a rule directly regulates them.” 52 50 *See* Small Business Administration, Office of Advocacy, *A Guide for Government Agencies: How to Comply with the Regulatory Flexibility Act,* May 2003. 51 *See id.* at 69. 52 *See id.* at 20. As described in the Regulatory Assessment for this rule, CBP could not quantify the indirect impacts of the rule with any degree of certainty; it instead focused the analysis on the direct costs to individuals recognizing that some small entities will face indirect impacts. Some of the small entities indirectly affected will be foreign owned and will be located outside the United States. Additionally, reductions in international travel that result from the rule could lead to gains for domestic industries. Most travelers are expected to eventually obtain passports and continue traveling. Consequently, indirect effects are expected to be spread over wide swaths of domestic and foreign economies. Small businesses may be indirectly affected by the rule if international travelers forego travel to affected Western Hemisphere countries. These industry sectors may include (but are not limited to): —Manufacturing —Wholesale trade —Retail trade —Transportation (including water, air, truck, bus, and rail) —Real estate —Arts, entertainment, and recreation —Accommodation and food services Because this rule does not directly regulate small entities, we do not believe that this rule has a significant economic impact on a substantial number of small entities. The exception could be certain “sole proprietors” who could be considered small businesses and could be directly affected by the rule if their occupations required travel within the Western Hemisphere where a passport was not previously required. However, as estimated in the Regulatory Assessment for implementation of WHTI in the land environment, the cost to such businesses would be only $125 for a first-time passport applicant, $70 for a first-time passport card applicant, plus an additional $60 if expedited service were requested. We believe such an expense would not rise to the level of being a “significant economic impact.” CBP thus certifies that this regulatory action does not have a significant economic impact on a substantial number of small entities. The complete analysis of impacts to small entities for this rule is available on the CBP Web site at: *http://www.regulations.gov;* see also *http://www.cbp.gov.* C. Executive Order 13132: Federalism Executive Order 13132 requires DHS and DOS to develop a 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 are defined in the Executive Order to include rules 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.” DHS and DOS have analyzed the rule in accordance with the principles and criteria in the Executive Order and have determined that it does not have federalism implications or a substantial direct effect on the States. The rule requires U.S. citizens and nonimmigrant aliens from Canada, Bermuda and Mexico entering the United States by land or by sea from Western Hemisphere countries to present a valid passport or other identified alternative document. States do not conduct activities subject to this rule. For these reasons, this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. D. Unfunded Mandates Reform Act Assessment Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), enacted as Public Law 104-4 on March 22, 1995, requires each Federal agency, to the extent permitted by law, to prepare a written assessment of the effects of any Federal mandate in a proposed or final agency rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. Section 204(a) of the UMRA, 2 U.S.C. 1534(a), requires the Federal agency to develop an effective process to permit timely input by elected officers (or their designees) of State, local, and tribal governments on a proposed “significant intergovernmental mandate.” A “significant intergovernmental mandate” under the UMRA is any provision in a Federal agency regulation that will impose an enforceable duty upon State, local, and tribal governments, in the aggregate, of $100 million (adjusted annually for inflation) in any one year. Section 203 of the UMRA, 2 U.S.C. 1533, which supplements section 204(a), provides that, before establishing any regulatory requirements that might significantly or uniquely affect small governments, the agency shall have developed a plan that, among other things, provides for notice to potentially affected small governments, if any, and for a meaningful and timely opportunity to provide input in the development of regulatory proposals. This rule would not impose a significant cost or uniquely affect small governments. The rule does have an effect on the private sector of $100 million or more. This impact is discussed in the Executive Order 12866 discussion. E. National Environmental Policy Act of 1969 DHS, in consultation with DOS, the Environmental Protection Agency and the General Services Administration have reviewed the potential environmental and other impacts of this proposed rule in accordance with the National Environmental Policy Act
(NEPA)of 1969 (42 U.S.C. 4321 *et seq.* ), the regulations of the Council on Environmental Quality (40 CFR part 1500), and DHS Management Directive 5100.1, *Environmental Planning Program of April 19, 2006.* A programmatic environmental assessment
(PEA)was prepared that examined, among other things, potential alternatives regarding implementation of the proposed rule at the various land and sea ports of entry and what, if any, environmental impacts may result from the rule and its implementation. The final PEA was published on September 10, 2007, and resulted in a Finding of No Significant Impact (FONSI) for the WHTI sea and land plan. A review of the relative impacts showed that none of the alternatives analyzed would result in a significant impact on the human environment. A Notice of Availability for the final PEA and FONSI was published on September 26, 2007, in the **Federal Register** , and the PEA and FONSI are available for viewing on *http://www.dhs.gov* and *http://www.cbp.gov.* In addition, copies may be obtained by writing to: U.S. Customs and Border Protection, 1300 Pennsylvania Avenue, NW., Room 5.4D, *Attn:* WHTI Environmental Assessment, Washington, DC 20229. F. Paperwork Reduction Act 1. Passports/Passport Cards The collection of information requirement for passports is contained in 22 CFR 51.20 and 51.21. The required information is necessary for DOS Passport Services to issue a United States passport in the exercise of authorities granted to the Secretary of State in 22 U.S.C. Section 211a *et seq.* and Executive Order 11295 (August 5, 1966) for the issuance of passports to United States citizens and non-citizen nationals. The issuance of U.S. passports requires the determination of identity and nationality with reference to the provisions of Title III of the Immigration and Nationality Act (8 U.S.C. sections 1401-1504), the Fourteenth Amendment to the Constitution of the United States, and other applicable laws. The primary purpose for soliciting the information is to establish nationality, identity, and entitlement to the issuance of a United States passport or related service and to properly administer and enforce the laws pertaining to issuance thereof. There are currently two OMB-approved application forms for passports, the DS-11 Application for a U.S. Passport (OMB Approval No. 1405-0004) and the DS-82 Application for a U.S. Passport by Mail. Applicants for the passport cards would use the same application forms (DS-11 and DS-82). The forms have been modified to allow the applicant to elect a card or book formal passport, or both. First time applicants must use the DS-11. The rule would result in an increase in the number of persons filing the DS-11 and could result in an increase in the number of persons filing the DS-82, and a corresponding increase in the annual reporting and/or record-keeping burden. In conjunction with publication of the final rule, DOS will amend the OMB form 83-I (Paperwork Reduction Act Submission) relating to the DS-11 to reflect these increases. The collection of information encompassed within this rule has been submitted to the OMB for review in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507). An agency may not conduct, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number assigned by OMB. *Estimated annual average reporting and/or recordkeeping burden:* *14.* 7 million hours. *Estimated annual average number of respondents:* *9* million. *Estimated average burden per respondent:* *1* hour *25* minutes. *Estimated frequency of responses:* Every 10 years (adult passport and passport card applications); every 5 years (minor passport and passport card applications) Comments on this collection of information should be sent to the Office of Management and Budget, *Attention:* Desk Officer of the Department of State, Office of Information and Regulatory Affairs, Washington, DC 20503. 2. Groups of Children The collection of information requirements for groups of children would be contained in 8 CFR 212.1 and 235.1. The required information is necessary to comply with section 7209 of IRTPA, as amended, to develop an alternative procedure for groups of children traveling across an international border under adult supervision with parental consent. DHS, in consultation with DOS, has developed alternate procedures requiring that certain information be provided to CBP so that these children would not be required to present a passport. Consequently, U.S. and Canadian citizen children through age 18, who are traveling with public or private school groups, religious groups, social or cultural organizations, or teams associated with youth sport organizations that arrive at U.S. sea or land ports-of-entry, would be permitted to present an original or a copy of a birth certificate (rather than a passport), when the groups are under the supervision of an adult affiliated with the organization and when all the children have parental or legal guardian consent to travel. U.S. citizen children would also be permitted to present a Certificate of Naturalization or a Consular Report of Birth Abroad. Canadian children would also be permitted to present a Canadian Citizenship Card or Canadian Naturalization Certificate. When crossing the border at the port-of-entry, the U.S. group, organization, or team would be required to provide to CBP on organizational letterhead the following information:
(1)The name of the group;
(2)the name of each child on the trip;
(3)the primary address, primary phone number, date of birth, place of birth, and name of at least one parent or legal guardian for each child on the trip;
(4)the name of the chaperone or supervising adult; and
(5)the signed statement of the supervising adult certifying that he or she has obtained parental or legal guardian consent for each child. The primary purpose for soliciting the information is to allow groups of children arriving at the U.S. border under adult supervision with parental consent to present either an original or a copy of a birth certificate, (either for U.S. children: a Consular Report of Birth Abroad, or Certificate of Naturalization; or for Canadian children: a Canadian Citizenship Card or Canadian Naturalization Certificate), rather than a passport, when the requested information is provided to CBP. This information is necessary for CBP to verify that the group of children entering the United States is eligible for this alternative procedure so that the children would not be required to present a passport or other generally acceptable document. The collection of information encompassed within this proposed rule has been submitted to the OMB for review in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507). An agency may not conduct, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number assigned by OMB. *Estimated annual reporting and/or recordkeeping burden:* *1,625* hours. *Estimated average annual respondent or recordkeeping burden:* *15* minutes. *Estimated number of respondents and/or recordkeepers:* *6,500* respondents. *Estimated annual frequency of responses:* *6,500* responses. Comments on this collection of information should be sent to the Office of Management and Budget, *Attention:* Desk Officer of the Department of Homeland Security, Office of Information and Regulatory Affairs, Washington, DC 20503. G. Privacy Statement A Privacy Impact Assessment
(PIA)was posted to the DHS Web site (at *http://www.dhs.gov/xinfoshare/publications/editorial_0511.shtm* ) regarding the proposed rule. The changes adopted in this final rule involve the removal of an exception for U.S. citizens from having to present a passport in connection with Western Hemisphere travel other than Cuba, such that said individuals would now be required to present a passport or other identified alternative document when traveling from foreign points of origin both within and without of the Western Hemisphere. The rule expands the number of individuals submitting passport information for travel within the Western Hemisphere, but does not involve the collection of any new data elements. Presently, CBP collects and stores passport information from all travelers required to provide such information pursuant to the Aviation and Transportation Security Act of 2001
(ATSA)and the Enhanced Border Security and Visa Reform Act of 2002 (EBSA), in the Treasury Enforcement Communications System
(TECS)(for which a System of Records Notice is published at 66 FR 53029). By removing the passport exception for U.S. Citizens traveling within the Western Hemisphere, DHS and DOS are requiring these individuals to comply with the general requirement to submit passport information when traveling to and from the United States. List of Subjects 8 CFR Part 212 Administrative practice and procedure, Aliens, Immigration, Passports and visas, Reporting and recordkeeping requirements. 8 CFR Part 235 Administrative practice and procedure, Aliens, Immigration, Reporting and recordkeeping requirements. 22 CFR Part 41 Aliens, Nonimmigrants, Passports and visas. 22 CFR Part 53 Passports and visas, travel restrictions. Amendments to the Regulations For the reasons stated above, DHS and DOS amend 8 CFR parts 212 and 235 and 22 CFR parts 41 and 53 as set forth below. Title 8—Aliens and Nationality PART 212—DOCUMENTARY REQUIREMENTS; NONIMMIGRANTS; WAIVERS; ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE 1. The authority citation for part 212 is revised to read as follows: Authority: 8 U.S.C. 1101 and note, 1102, 1103, 1182 and note, 1184, 1187, 1223, 1225, 1226, 1227, 1359; 8 U.S.C. 1185 note (section 7209 of Pub. L. 108-458, as amended by section 546 of Pub. L. 109-295 and by section 723 of Pub. L. 110-53). 2. A new § 212.0 is added to read as follows: § 212.0 Definitions. For purposes of § 212.1 and § 235.1 of this chapter: *Adjacent islands* means Bermuda and the islands located in the Caribbean Sea, except Cuba. *Cruise ship* means a passenger vessel over 100 gross tons, carrying more than 12 passengers for hire, making a voyage lasting more than 24 hours any part of which is on the high seas, and for which passengers are embarked or disembarked in the United States or its territories. *Ferry* means any vessel operating on a pre-determined fixed schedule and route, which is being used solely to provide transportation between places that are no more than 300 miles apart and which is being used to transport passengers, vehicles, and/or railroad cars. *Pleasure vessel* means a vessel that is used exclusively for recreational or personal purposes and not to transport passengers or property for hire. *United States* means “United States” as defined in section 215(c) of the Immigration and Nationality Act of 1952, as amended (8 U.S.C. 1185(c)). *U.S. citizen* means a United States citizen or a U.S. non-citizen national. *United States qualifying tribal entity* means a tribe, band, or other group of Native Americans formally recognized by the United States Government which agrees to meet WHTI document standards. 3. Section 212.1 is amended by: a. Revising paragraphs (a)(1) and (a)(2); and b. Revising paragraph (c)(1). The revisions read as follows: § 212.1 Documentary requirements for nonimmigrants.
(a)*Citizens of Canada or Bermuda, Bahamian nationals or British subjects resident in certain islands.*
(1)*Canadian citizens.* A visa is generally not required for Canadian citizens, except those Canadians that fall under nonimmigrant visa categories E, K, S, or V as provided in paragraphs (h), (l), and
(m)of this section and 22 CFR 41.2. A valid unexpired passport is required for Canadian citizens arriving in the United States, except when meeting one of the following requirements:
(i)*NEXUS Program.* A Canadian citizen who is traveling as a participant in the NEXUS program, and who is not otherwise required to present a passport and visa as provided in paragraphs (h), (l), and
(m)of this section and 22 CFR 41.2, may present a valid unexpired NEXUS program card when using a NEXUS Air kiosk or when entering the United States from contiguous territory or adjacent islands at a land or sea port-of-entry. A Canadian citizen who enters the United States by pleasure vessel from Canada under the remote inspection system may present a valid unexpired NEXUS program card.
(ii)*FAST Program.* A Canadian citizen who is traveling as a participant in the FAST program, and who is not otherwise required to present a passport and visa as provided in paragraphs (h), (l), and
(m)of this section and 22 CFR 41.2, may present a valid unexpired FAST card at a land or sea port-of-entry prior to entering the United States from contiguous territory or adjacent islands.
(iii)*SENTRI Program.* A Canadian citizen who is traveling as a participant in the SENTRI program, and who is not otherwise required to present a passport and visa as provided in paragraphs (h), (l), and
(m)of this section and 22 CFR 41.2, may present a valid unexpired SENTRI card at a land or sea port-of-entry prior to entering the United States from contiguous territory or adjacent islands.
(iv)*Canadian Indians.* If designated by the Secretary of Homeland Security, a Canadian citizen holder of a Indian and Northern Affairs Canada (“INAC”) card issued by the Canadian Department of Indian Affairs and North Development, Director of Land and Trust Services (“LTS”) in conformance with security standards agreed upon by the Governments of Canada and the United States, and containing a machine readable zone and who is arriving from Canada may present the card prior to entering the United States at a land port-of-entry.
(v)*Children.* A child who is a Canadian citizen arriving from contiguous territory may present for admission to the United States at sea or land ports-of-entry certain other documents if the arrival meets the requirements described below.
(A)*Children Under Age 16.* A Canadian citizen who is under the age of 16 is permitted to present an original or a copy of his or her birth certificate, a Canadian Citizenship Card, or a Canadian Naturalization Certificate when arriving in the United States from contiguous territory at land or sea ports-of-entry.
(B)*Groups of Children Under Age 19.* A Canadian citizen, under age 19 who is traveling with a public or private school group, religious group, social or cultural organization, or team associated with a youth sport organization is permitted to present an original or a copy of his or her birth certificate, a Canadian Citizenship Card, or a Canadian Naturalization Certificate when arriving in the United States from contiguous territory at land or sea ports-of-entry, when the group, organization or team is under the supervision of an adult affiliated with the organization and when the child has parental or legal guardian consent to travel. For purposes of this paragraph, an adult is considered to be a person who is age 19 or older. The following requirements will apply: *(1)* The group, organization, or team must provide to CBP upon crossing the border, on organizational letterhead: *(i)* The name of the group, organization or team, and the name of the supervising adult; *(ii)* A trip itinerary, including the stated purpose of the trip, the location of the destination, and the length of stay; *(iii)* A list of the children on the trip; *(iv)* For each child, the primary address, primary phone number, date of birth, place of birth, and name of a parent or legal guardian. *(2)* The adult leading the group, organization, or team must demonstrate parental or legal guardian consent by certifying in the writing submitted in paragraph (a)(1)(v)(B)(1) of this section that he or she has obtained for each child the consent of at least one parent or legal guardian. *(3)* The inspection procedure described in this paragraph is limited to members of the group, organization, or team who are under age 19. Other members of the group, organization, or team must comply with other applicable document and/or inspection requirements found in this part or parts 211 or 235 of this subchapter.
(2)*Citizens of the British Overseas Territory of Bermuda.* A visa is generally not required for Citizens of the British Overseas Territory of Bermuda, except those Bermudians that fall under nonimmigrant visa categories E, K, S, or V as provided in paragraphs (h), (l), and
(m)of this section and 22 CFR 41.2. A passport is required for Citizens of the British Overseas Territory of Bermuda arriving in the United States.
(c)*Mexican nationals.*
(1)A visa and a passport are not required of a Mexican national who:
(i)Is applying for admission as a temporary visitor for business or pleasure from Mexico at a land port-of-entry, or arriving by pleasure vessel or ferry, if the national is in possession of a Form DSP-150, B-1/B-2 Visa and Border Crossing Card issued by the Department of State, containing a machine-readable biometric identifier; or.
(ii)Is applying for admission from contiguous territory or adjacent islands at a land or sea port-of-entry, if the national is a member of the Texas Band of Kickapoo Indians or Kickapoo Tribe of Oklahoma who is in possession of a Form I-872 American Indian Card. PART 235—INSPECTION OF PERSONS APPLYING FOR ADMISSION 4. The authority citation for part 235 is revised to read as follows: Authority: 8 U.S.C. 1101 and note, 1103, 1183, 1185 (pursuant to E.O. 13323, published January 2, 2004), 1201, 1224, 1225, 1226, 1228, 1365a note, 1379, 1731-32; 8 U.S.C. 1185 note (section 7209 of Pub. L. 108-458, as amended by section 546 of Pub. L. 109-295 and by section 723 of Pub. L. 110-53). 5. Section 235.1 is amended by: a. Revising paragraph (b); b. Revising paragraph (d); and c. Revise paragraph (e). The revised text reads as follows: § 235.1 Scope of examination.
(b)*U.S. Citizens.* A person claiming U.S. citizenship must establish that fact to the examining officer's satisfaction and must present a U.S. passport or alternative documentation as required by 22 CFR part 53. If such applicant for admission fails to satisfy the examining immigration officer that he or she is a U.S. citizen, he or she shall thereafter be inspected as an alien. A U.S. citizen must present a valid unexpired U.S. passport book upon entering the United States, unless he or she presents one of the following documents:
(1)*Passport Card.* A U.S. citizen who possesses a valid unexpired United States passport card, as defined in 22 CFR 53.1, may present the passport card when entering the United States from contiguous territory or adjacent islands at land or sea ports-of-entry.
(2)*Merchant Mariner Document.* A U.S. citizen who holds a valid Merchant Mariner Document
(MMD)issued by the U.S. Coast Guard may present an unexpired MMD used in conjunction with official maritime business when entering the United States.
(3)*Military Identification.* Any U.S. citizen member of the U.S. Armed Forces who is in the uniform of, or bears documents identifying him or her as a member of, such Armed Forces, and who is coming to or departing from the United States under official orders or permit of such Armed Forces, may present a military identification card and the official orders when entering the United States.
(4)*Trusted Traveler Programs.* A U.S. citizen who travels as a participant in the NEXUS, FAST, or SENTRI programs may present a valid NEXUS program card when using a NEXUS Air kiosk or a valid NEXUS, FAST, or SENTRI card at a land or sea port-of-entry prior to entering the United States from contiguous territory or adjacent islands. A U.S. citizen who enters the United States by pleasure vessel from Canada using the remote inspection system may present a NEXUS program card.
(5)*Certain Cruise Ship Passengers.* A U.S. citizen traveling entirely within the Western Hemisphere is permitted to present a government-issued photo identification document in combination with either an original or a copy of his or her birth certificate, a Consular Report of Birth Abroad issued by the Department of State, or a Certificate of Naturalization issued by U.S. Citizenship and Immigration Services for entering the United States when the United States citizen:
(i)Boards a cruise ship at a port or place within the United States; and,
(ii)Returns on the return voyage of the same cruise ship to the same United States port or place from where he or she originally departed. On such cruises, U.S. Citizens under the age of 16 may present an original or a copy of a birth certificate, a Consular Report of Birth Abroad, or a Certificate of Naturalization issued by U.S. Citizenship and Immigration Services.
(6)*Native American Holders of an American Indian Card.* A Native American holder of a Form I-872 American Indian Card arriving from contiguous territory or adjacent islands may present the Form I-872 card prior to entering the United States at a land or sea port-of-entry.
(7)*Native American Holders of Tribal Documents.* A U.S. citizen holder of a tribal document issued by a United States qualifying tribal entity or group of United States qualifying tribal entities, as provided in paragraph
(e)of this section, who is arriving from contiguous territory or adjacent islands may present the tribal document prior to entering the United States at a land or sea port-of-entry.
(8)*Children.* A child who is a United States citizen entering the United States from contiguous territory at a sea or land ports-of-entry may present certain other documents, if the arrival falls under subsection
(i)or (ii).
(i)*Children Under Age 16.* A U.S. citizen who is under the age of 16 is permitted to present either an original or a copy of his or her birth certificate, a Consular Report of Birth Abroad issued by the Department of State, or a Certificate of Naturalization issued by U.S. Citizenship and Immigration Services when entering the United States from contiguous territory at land or sea ports-of-entry.
(ii)*Groups of Children Under Age 19.* A U.S. citizen, who is under age 19 and is traveling with a public or private school group, religious group, social or cultural organization, or team associated with a youth sport organization is permitted to present either an original or a copy of his or her birth certificate, a Consular Report of Birth Abroad issued by the Department of State, or a Certificate of Naturalization issued by U.S. Citizenship and Immigration Services when arriving from contiguous territory at land or sea ports-of-entry, when the group, organization, or team is under the supervision of an adult affiliated with the group, organization, or team and when the child has parental or legal guardian consent to travel. For purposes of this paragraph, an adult is considered to be a person age 19 or older. The following requirements will apply:
(A)The group or organization must provide to CBP upon crossing the border, on organizational letterhead: ( *1* ) The name of the group, organization or team, and the name of the supervising adult; ( *2* ) A list of the children on the trip; ( *3* ) For each child, the primary address, primary phone number, date of birth, place of birth, and name of a parent or legal guardian.
(B)The adult leading the group, organization, or team must demonstrate parental or legal guardian consent by certifying in the writing submitted in paragraph (b)(8)(ii)(A) of this section that he or she has obtained for each child the consent of at least one parent or legal guardian.
(C)The inspection procedure described in this paragraph is limited to members of the group, organization, or team who are under age 19. Other members of the group, organization, or team must comply with other applicable document and/or inspection requirements found in this part.
(d)*Enhanced Driver's License Projects; alternative requirements.* Upon the designation by the Secretary of Homeland Security of an enhanced driver's license as an acceptable document to denote identity and citizenship for purposes of entering the United States, U.S. and Canadian citizens may be permitted to present these documents in lieu of a passport upon entering or seeking admission to the United States according to the terms of the agreements entered between the Secretary of Homeland Security and the entity. The Secretary of Homeland Security will announce, by publication of a notice in the **Federal Register** , documents designated under this paragraph. A list of the documents designated under this paragraph will also be made available to the public.
(e)*Native American Tribal Cards; alternative requirements.* Upon the designation by the Secretary of Homeland Security of a United States qualifying tribal entity document as an acceptable document to denote identity and citizenship for purposes of entering the United States, Native Americans may be permitted to present tribal cards upon entering or seeking admission to the United States according to the terms of the voluntary agreement entered between the Secretary of Homeland Security and the tribe. The Secretary of Homeland Security will announce, by publication of a notice in the ** Federal Register ** , documents designated under this paragraph. A list of the documents designated under this paragraph will also be made available to the public. Title 22—Foreign Relations PART 41—VISAS: DOCUMENTATION OF NONIMMIGRANTS UNDER THE IMMIGRATION AND NATIONALITY ACT Subpart A—Passport and Visas Not Required for Certain Nonimmigrants 1. The authority citation for part 41 is revised to read as follows: Authority: 8 U.S.C. 1104; Pub. L. 105-277, 112 Stat. 2681-795 through 2681-801; 8 U.S.C. 1185 note (section 7209 of Pub. L. 108-458, as amended by section 546 of Pub. L. 109-295). 2. A new § 41.0 is added to read as follows: § 41.0 Definitions. For purposes of this part and part 53: *Adjacent islands* means Bermuda and the islands located in the Caribbean Sea, except Cuba. *Cruise ship* means a passenger vessel over 100 gross tons, carrying more than 12 passengers for hire, making a voyage lasting more than 24 hours any part of which is on the high seas, and for which passengers are embarked or disembarked in the United States or its territories. *Ferry* means any vessel operating on a pre-determined fixed schedule and route, which is being used solely to provide transportation between places that are no more than 300 miles apart and which is being used to transport passengers, vehicles, and/or railroad cars. *Pleasure vessel* means a vessel that is used exclusively for recreational or personal purposes and not to transport passengers or property for hire. *United States* means “United States” as defined in section 215(c) of the Immigration and Nationality Act of 1952, as amended (8 U.S.C. 1185(c)). *U.S. citizen* means a United States citizen or a U.S. non-citizen national. *United States qualifying tribal entity* means a tribe, band, or other group of Native Americans formally recognized by the United States Government which agrees to meet WHTI document standards. § 41.1 [Amended] 3. Section 41.1 is amended by removing and reserving paragraph (b). 4. Section 41.2 is amended by revising the heading, the introductory text, and paragraphs (a), (b), (g)(1) and (g)(2) to read as follows: § 41.2 Exemption or Waiver by Secretary of State and Secretary of Homeland Security of passport and/or visa requirements for certain categories of nonimmigrants. Pursuant to the authority of the Secretary of State and the Secretary of Homeland Security under the INA, as amended, a passport and/or visa is not required for the following categories of nonimmigrants:
(a)*Canadian citizens.* A visa is not required for an American Indian born in Canada having at least 50 percentum of blood of the American Indian race. A visa is not required for other Canadian citizens except for those who apply for admission in E, K, V, or S nonimmigrant classifications as provided in paragraphs
(k)and
(m)of this section and 8 CFR 212.1. A passport is required for Canadian citizens applying for admission to the United States, except when one of the following exceptions applies:
(1)*NEXUS Program.* A Canadian citizen who is traveling as a participant in the NEXUS program, and who is not otherwise required to present a passport and visa as provided in paragraphs
(k)and
(m)of this section and 8 CFR 212.1, may present a valid NEXUS program card when using a NEXUS Air kiosk or when entering the United States from contiguous territory or adjacent islands at a land or sea port-of-entry. A Canadian citizen who enters the United States by pleasure vessel from Canada under the remote inspection system may present a NEXUS program card.
(2)*FAST Program.* A Canadian citizen who is traveling as a participant in the FAST program, and who is not otherwise required to present a passport and visa as provided in paragraphs
(k)and
(m)of this section and 8 CFR 212.1, may present a valid FAST card at a land or sea port-of-entry prior to entering the United States from contiguous territory or adjacent islands.
(3)*SENTRI Program.* A Canadian citizen who is traveling as a participant in the SENTRI program, and who is not otherwise required to present a passport and visa as provided in paragraphs
(k)and
(m)of this section and 8 CFR 212.1, may present a valid SENTRI card at a land or sea port-of-entry prior to entering the United States from contiguous territory or adjacent islands.
(4)*Canadian Indians.* If designated by the Secretary of Homeland Security, a Canadian citizen holder of an Indian and Northern Affairs Canada (“INAC”) card issued by the Canadian Department of Indian Affairs and North Development, Director of Land and Trust Services
(LTS)in conformance with security standards agreed upon by the Governments of Canada and the United States, and containing a machine readable zone, and who is arriving from Canada, may present the card prior to entering the United States at a land port-of-entry.
(5)*Children.* A child who is a Canadian citizen who is seeking admission to the United States when arriving from contiguous territory at a sea or land port-of-entry, may present certain other documents if the arrival meets the requirements described in either paragraph
(i)or
(ii)of this section.
(i)*Children Under Age 16.* A Canadian citizen who is under the age of 16 is permitted to present an original or a copy of his or her birth certificate, a Canadian Citizenship Card, or a Canadian Naturalization Certificate when arriving in the United States from contiguous territory at land or sea ports-of-entry.
(ii)*Groups of Children Under Age 19.* A Canadian citizen who is under age 19 and who is traveling with a public or private school group, religious group, social or cultural organization, or team associated with a youth sport organization may present an original or a copy of his or her birth certificate, a Canadian Citizenship Card, or a Canadian Naturalization Certificate when applying for admission to the United States from contiguous territory at all land and sea ports-of-entry, when the group, organization or team is under the supervision of an adult affiliated with the organization and when the child has parental or legal guardian consent to travel. For purposes of this paragraph, an adult is considered to be a person who is age 19 or older. The following requirements will apply:
(A)The group, organization, or team must provide to CBP upon crossing the border, on organizational letterhead: ( *1* ) The name of the group, organization or team, and the name of the supervising adult; ( *2* ) A trip itinerary, including the stated purpose of the trip, the location of the destination, and the length of stay; ( *3* ) A list of the children on the trip; ( *4* ) For each child, the primary address, primary phone number, date of birth, place of birth, and the name of at least one parent or legal guardian.
(B)The adult leading the group, organization, or team must demonstrate parental or legal guardian consent by certifying in the writing submitted in paragraph (a)(5)(ii)(A) of this section that he or she has obtained for each child the consent of at least one parent or legal guardian.
(C)The procedure described in this paragraph is limited to members of the group, organization, or team that are under age 19. Other members of the group, organization, or team must comply with other applicable document and/or inspection requirements found in this part and 8 CFR parts 212 and 235.
(6)*Enhanced Driver's License Programs.* Upon the designation by the Secretary of Homeland Security of an enhanced driver's license as an acceptable document to denote identity and citizenship for purposes of entering the United States, Canadian citizens may be permitted to present these documents in lieu of a passport when seeking admission to the United States according to the terms of the agreements entered between the Secretary of Homeland Security and the entity. The Secretary of Homeland Security will announce, by publication of a notice in the **Federal Register** , documents designated under this paragraph. A list of the documents designated under this paragraph will also be made available to the public.
(b)*Citizens of the British Overseas Territory of Bermuda.* A visa is not required, except for Citizens of the British Overseas Territory of Bermuda who apply for admission in E, K, V, or S nonimmigrant visa classification as provided in paragraphs
(k)and
(m)of this section and 8 CFR 212.1. A passport is required for Citizens of the British Overseas Territory of Bermuda applying for admission to the United States.
(g)*Mexican nationals.*
(1)A visa and a passport are not required of a Mexican national who is applying for admission from Mexico as a temporary visitor for business or pleasure at a land port-of-entry, or arriving by pleasure vessel or ferry, if the national is in possession of a Form DSP-150, B-1/B-2 Visa and Border Crossing Card, containing a machine-readable biometric identifier, issued by the Department of State.
(2)A visa and a passport are not required of a Mexican national who is applying for admission from contiguous territory or adjacent islands at a land or sea port-of-entry, if the national is a member of the Texas Band of Kickapoo Indians or Kickapoo Tribe of Oklahoma who is in possession of a Form I-872 American Indian Card issued by U.S. Citizenship and Immigration Services (USCIS). PART 53—PASSPORT REQUIREMENT AND EXCEPTIONS 5. The authority citation for part 53 continues to read as follows: Authority: 8 U.S.C. 1185; 8 U.S.C. 1185 note (section 7209 of Pub. L. 108-458); E.O. 13323, 69 FR 241 (Dec. 23, 2003). 6. Section 53.2 is revised to read as follows: § 53.2 Exceptions.
(a)U.S. citizens, as defined in § 41.0 of this chapter, are not required to bear U.S. passports when traveling directly between parts of the United States as defined in § 51.1 of this chapter.
(b)A U.S. citizen is not required to bear a valid U.S. passport to enter or depart the United States:
(1)When traveling as a member of the Armed Forces of the United States on active duty and when he or she is in the uniform of, or bears documents identifying him or her as a member of, such Armed Forces, when under official orders or permit of such Armed Forces, and when carrying a military identification card; or
(2)When traveling entirely within the Western Hemisphere on a cruise ship, and when the U.S. citizen boards the cruise ship at a port or place within the United States and returns on the return voyage of the same cruise ship to the same United States port or place from where he or she originally departed. That U.S. citizen may present a government-issued photo identification document in combination with either an original or a copy of his or her birth certificate, a Consular Report of Birth Abroad issued by the Department, or a Certificate of Naturalization issued by U.S. Citizenship and Immigration Services before entering the United States; if the U.S. citizen is under the age of 16, he or she may present either an original or a copy of his or her birth certificate, a Consular Report of Birth Abroad issued by the Department, or a Certificate of Naturalization issued by U.S. Citizenship and Immigration Services; or
(3)When traveling as a U.S. citizen seaman, carrying an unexpired Merchant Marine Document
(MMD)in conjunction with maritime business. The MMD is not sufficient to establish citizenship for purposes of issuance of a United States passport under part 51 of this chapter; or
(4)Trusted Traveler Programs.
(i)*NEXUS Program.* When traveling as a participant in the NEXUS program, he or she may present a valid NEXUS program card when using a NEXUS Air kiosk or when entering the United States from contiguous territory or adjacent islands at a land or sea port-of-entry. A U.S. citizen who enters the United States by pleasure vessel from Canada under the remote inspection system may also present a NEXUS program card;
(ii)*FAST Program.* A U.S. citizen who is traveling as a participant in the FAST program may present a valid FAST card when entering the United States from contiguous territory or adjacent islands at a land or sea port-of-entry;
(iii)*SENTRI Program.* A U.S. citizen who is traveling as a participant in the SENTRI program may present a valid SENTRI card when entering the United States from contiguous territory or adjacent islands at a land or sea port-of-entry; The NEXUS, FAST, and SENTRI cards are not sufficient to establish citizenship for purposes of issuance of a U.S. passport under part 51 of this chapter; or
(5)When arriving at land ports of entry and sea ports of entry from contiguous territory or adjacent islands, Native American holders of American Indian Cards (Form I-872) issued by U.S. Citizenship and Immigration Services (USCIS) may present those cards; or
(6)When arriving at land or sea ports of entry from contiguous territory or adjacent islands, U.S. citizen holders of a tribal document issued by a United States qualifying tribal entity or group of United States qualifying tribal entities as provided in 8 CFR 235.1(e) may present that document. Tribal documents are not sufficient to establish citizenship for purposes of issuance of a United States passport under part 51 of this chapter; or
(7)When bearing documents or combinations of documents the Secretary of Homeland Security has determined under Section 7209(b) of Public Law 108-458 (8 U.S.C. 1185 note) are sufficient to denote identity and citizenship. Such documents are not sufficient to establish citizenship for purposes of issuance of a U.S. passport under part 51 of this chapter; or
(8)When the U.S. citizen is employed directly or indirectly on the construction, operation, or maintenance of works undertaken in accordance with the treaty concluded on February 3, 1944, between the United States and Mexico regarding the functions of the International Boundary and Water Commission (IBWC), TS 994, 9 Bevans 1166, 59 Stat. 1219, or other related agreements, provided that the U.S. citizen bears an official identification card issued by the IBWC and is traveling in connection with such employment; or
(9)When the Department of State waives, pursuant to EO 13323 of December 30, 2003, Section 2, the requirement with respect to the U.S. citizen because there is an unforeseen emergency; or
(10)When the Department of State waives, pursuant to EO 13323 of December 30, 2003, Sec 2, the requirement with respect to the U.S. citizen for humanitarian or national interest reasons; or
(11)When the U.S. citizen is a child under the age of 19 arriving from contiguous territory in the following circumstances:
(i)*Children Under Age 16.* A United States citizen who is under the age of 16 is permitted to present either an original or a copy of his or her birth certificate, a Consular Report of Birth Abroad, or a Certificate of Naturalization issued by U.S. Citizenship and Immigration Services when entering the United States from contiguous territory at land or sea ports-of-entry; or
(ii)*Groups of Children Under Age 19.* A U.S. citizen who is under age 19 and who is traveling with a public or private school group, religious group, social or cultural organization, or team associated with a youth sport organization may present either an original or a copy of his or her birth certificate, a Consular Report of Birth Abroad, or a Certificate of Naturalization issued by U.S. Citizenship and Immigration Services when arriving in the United States from contiguous territory at all land or sea ports of entry, when the group, organization or team is under the supervision of an adult affiliated with the organization and when the child has parental or legal guardian consent to travel. For purposes of this paragraph, an adult is considered to be a person who is age 19 or older. The following requirements will apply:
(A)The group, organization, or team must provide to CBP upon crossing the border on organizational letterhead: ( *1* ) The name of the group, organization or team, and the name of the supervising adult; ( *2* ) A list of the children on the trip; and
(3)For each child, the primary address, primary phone number, date of birth, place of birth, and the name of at least one parent or legal guardian.
(B)The adult leading the group, organization, or team must demonstrate parental or legal guardian consent by certifying in the writing submitted in paragraph (b)(11)(ii)(A) of this section that he or she has obtained for each child the consent of at least one parent or legal guardian.
(C)The procedure described in this paragraph is limited to members of the group, organization, or team who are under age 19. Other members of the group, organization, or team must comply with other applicable document and/or inspection requirements found in 8 CFR parts 211, 212, or 235. Dated: March 26, 2008. Michael Chertoff, Secretary of Homeland Security, Department of Homeland Security. Patrick Kennedy, Under Secretary of State for Management, Department of State. [FR Doc. E8-6725 Filed 4-2-08; 8:45 am] BILLING CODE 9111-14-P 73 65 Thursday, April 3, 2008 Notices DEPARTMENT OF HOMELAND SECURITY Designation of an Enhanced Driver's License and Identity Document Issued by the State of Washington as a Travel Document Under the Western Hemisphere Travel Initiative AGENCY: U.S. Customs and Border Protection, Department of Homeland Security. ACTION: Notice. SUMMARY: This notice announces that the Secretary of Homeland Security is designating enhanced driver's licenses and identity documents
(EDL)issued by the State of Washington as acceptable documents to denote identity and citizenship for purposes of entering the United States at land and sea ports of entry upon implementation of Section 7209 of the Intelligence Reform and Terrorism Prevention Act of 2004. U.S. citizens possessing these EDLs will be permitted to present the EDL as an acceptable document under the Western Hemisphere Travel Initiative when entering the United States from Canada and Mexico at land and sea ports of entry. DATES: This designation will become effective on June 1, 2009. FOR FURTHER INFORMATION CONTACT: Colleen Manaher, Western Hemisphere Travel Initiative, U.S. Customs and Border Protection, 1300 Pennsylvania Avenue, NW., Washington, DC 20229, 202-344-1220. SUPPLEMENTARY INFORMATION: Background The Western Hemisphere Travel Initiative The Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA), as amended, provides that upon implementation, U.S. citizens and Bermudian, Canadian and Mexican nationals will be required to present a passport or such alternative documents as the Secretary of Homeland Security (Secretary) designates as satisfactorily establishing identity and citizenship when entering the United States. In a final rule published concurrently in this issue of the **Federal Register** , the Department of Homeland Security
(DHS)and Department of State
(DOS)describe the second phase of a joint plan, known as the Western Hemisphere Travel Initiative (WHTI), to implement these new requirements. That final rule specifies the documents that U.S. citizens and nonimmigrant aliens from Canada, Bermuda, and Mexico will be required to present when entering the United States at land and sea ports-of-entry from within the Western Hemisphere. As provided for in the WHTI final rule for land and sea, one type of citizenship and identity document that U.S. citizens may present upon entry to the United States is an enhanced driver's license or identification document
(EDLs)designated by the Secretary pursuant to section 7209 of IRTPA, as amended. *See* 8 U.S.C. 1185 note. To this end, in the WHTI final rule for land and sea, a new regulatory provision, at 8 CFR 235.1(d), provides: Upon the designation by the Secretary of Homeland Security of an enhanced driver's license as an acceptable document to denote identity and citizenship for purposes of entering the United States, U.S. citizens and Canadian citizens may be permitted to present these documents in lieu of a passport upon entering or seeking admission to the United States according to the terms of the agreements entered between the Secretary of Homeland Security and the entity. The Secretary of Homeland Security will announce, by publication of a notice in the **Federal Register** , documents designated under this paragraph. A list of the documents designated under this paragraph will also be made available to the public. EDL Programs DHS is committed to working with the various U.S. States and the Government of Canada to facilitate the development of state and province issued EDLs as travel documents that denote identity and citizenship; therefore, satisfying section 7209 of IRTPA, as amended. The Secretary believes there is great promise in driver's licenses that are enhanced to satisfy WHTI requirements, namely denoting both identity and citizenship. To establish an EDL program, each State must enter into agreement with DHS to develop an acceptable EDL document. Each EDL program is specific to each entity based on specific factors such as the entity's level of interest, funding, technology, and other development and implementation factors. Based on the individual development of each EDL program, DHS will announce acceptable State and provincial EDL programs on an ongoing basis by publication in the **Federal Register** . To be acceptable, EDL documents must satisfy section 7209 by denoting identity and citizenship. Acceptable EDL documents must also have compatible technology, security criteria, and must respond to CBP's operational concerns. The EDL must include technologies that facilitate inspection at ports-of-entry. EDL documents must also be issued in a secure process and include technology that facilitates travel to satisfy WHTI requirements. DHS believes that the use of the EDL will have considerable facilitation benefits because CBP officers currently must inspect over 8,000 different types of documents issued by State and local entities when making admissibility determinations at land and seaports. Based on DHS testing and its experience with its trusted traveler programs, DHS expects that each application for admission will be more efficient and travelers will move through the primary inspection process more quickly with EDLs that will incorporate radio frequency identification
(RFID)technology. DHS is coordinating efforts to ensure that a State enhanced driver's license developed to meet the requirements of WHTI, will also adopt standards that REAL ID requires, as they are defined through the REAL ID rulemaking process. DHS published the REAL ID final rule on January 29, 2008 setting minimum standards for state-issued driver's licenses and identifications cards that be accepted for official purposes in accordance with the REAL ID Act of 2005. *See* Public Law 109-13, 119 Stat. 231, 302 (May 11, 2005) (codified at 49 U.S.C. 30301 note). Although REAL ID-compliant licenses and identification cards can be issued to non-U.S. citizens upon verification of legal status in the United States, EDLs will only be issued to citizens of the United States or Canada by an authority in each individual's country. DHS will continue to work closely with states to develop EDLs that meet both REAL ID and WHTI requirements. Washington State EDLs The State of Washington has established a voluntary program to develop an enhanced driver's license and identification card that would denote identity and citizenship. On March 23, 2007, the Secretary of Homeland Security and the Governor of Washington signed a Memorandum of Agreement
(MOA)to develop, issue, test, and evaluate an enhanced driver's license and identification card with facilitative technology to be used for border crossing purposes. Under the terms of the agreement between DHS and Washington State, the EDL will only be issued to U.S. citizens. EDLs also may be issued as photo identification cards to non-drivers. The Secretary has determined that Washington State EDL documents will satisfy section 7209 by denoting identity and citizenship. The Washington State EDL documents will have compatible facilitative technology to meet CBP's operational needs. These documents contain vicinity RFID chips and machine readable zones that will facilitate processing for the holder. The EDL will also include physical security features that guard against tampering. Washington State has already begun issuing EDLs. This notice announces that the Secretary designates the EDL issued by the State of Washington, pursuant to the terms of the MOA executed between DHS and the State of Washington, as an acceptable document to denote identity and citizenship for purposes of entering the United States. Therefore, pursuant to 8 CFR 235.1(d), U.S. citizen holders of these Washington State EDLs may present these EDLs as an alternative to a passport upon entering the United States at all land and sea ports of entry when coming from contiguous territory and adjacent islands. Dated: March 26, 2008. Michael Chertoff, Secretary. [FR Doc. E8-6819 Filed 4-2-08; 8:45 am] BILLING CODE 9111-14-P 73 65 Thursday, April 3, 2008 Presidential Documents Part IV The President Proclamation 8229—Cancer Control Month, 2008 Proclamation 8230—National Child Abuse Prevention Month, 2008 Proclamation 8231—National Donate Life Month, 2008 Proclamation 8232—National Fair Housing Month, 2008 Title 3— The President Proclamation 8229 of April 1, 2008 Cancer Control Month, 2008 By the President of the United States of America A Proclamation During Cancer Control Month, we honor cancer victims and survivors, raise awareness of the impact cancer has on our citizens, and underscore our commitment to battling this deadly disease. Cancer is the second-leading cause of death in the United States, and we remain committed to making the medical advances necessary to prevent and treat this disease. Scientists and medical professionals have made great progress in developing innovative treatments, improving diagnostic tools, and increasing our understanding of cancer. These advances have helped people with cancer live longer, healthier lives. All Americans can reduce their risk of developing cancer by following healthy eating habits, exercising regularly, avoiding tobacco and excessive use of alcohol, and controlling their weight. By scheduling regular physicals, getting preventive health screenings, and being aware of their family history, individuals who do develop cancer can increase the likelihood that it will be discovered at an earlier and more treatable stage. I encourage all our citizens to talk to their doctors and learn more about preventive measures that can save lives. My Administration remains dedicated to finding a cure for cancer. Since 2005, the Cancer Genome Atlas has played a role in advancing cancer research, and it is helping scientists learn more about the genetic sources of cancer. We continue to support the innovative advances needed to bring hope to those affected, and we will continue to fight cancer. As we observe Cancer Control Month, we honor cancer survivors for their determination, courage, and strength, and we remember those who lost their valiant fight against cancer. Their stories are an inspiration to all Americans. We also recognize medical professionals, researchers, family members, and friends who help support cancer patients. Their efforts improve the quality of life for those suffering from cancer, and their compassion embodies the true spirit of our Nation. The Congress of the United States, by joint resolution approved March 28, 1938 (52 Stat. 148; 36 U.S.C. 103), as amended, has requested the President to issue an annual proclamation declaring April as “Cancer Control Month.” NOW, THEREFORE, I, GEORGE W. BUSH, President of the United States of America, do hereby proclaim April 2008 as Cancer Control Month. I encourage citizens, government agencies, private businesses, nonprofit organizations, and other interested groups to join in activities that raise awareness about how all Americans can prevent and control cancer. IN WITNESS WHEREOF, I have hereunto set my hand this first day of April, in the year of our Lord two thousand eight, and of the Independence of the United States of America the two hundred and thirty-second. GWBOLD.EPS [FR Doc. 08-1098 Filed 4-2-08; 9:03 am]
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  • Pub. L. 92-463
  • Pub. L. 105-206
  • 44 USC 35
  • Pub. L. 100-497
  • 25 CFR 151
  • 43 CFR 1610.2
  • 40 CFR 1501.7
  • 43 CFR 1610.72
  • Pub. L. 109-233
  • Pub. L. 92-462
  • 17 CFR 240.19
  • 20 CFR 401
  • 23 CFR 1345
  • 49 CFR 1150.41
  • Pub. L. 110-161
  • 121 Stat. 1844
  • 49 CFR 1152
  • 49 CFR 1105.7
  • 49 CFR 1105.8
  • 49 CFR 1105.11
  • 49 CFR 1105.12
  • 49 CFR 1152.50(d)(1)
  • 49 CFR 1152.27(c)(2)
  • 49 CFR 1152.29
  • 49 CFR 1152.28
  • 49 CFR 1002.2(f)(25)
  • 49 CFR 1152.29(e)(2)
  • 49 CFR 1105.10(a)(2)
  • 40 CFR 1501.5
  • 42 USC 4321-4335
  • 40 CFR 1501.6
  • 33 USC 1251-1376
  • 49 USC 1651-1659
  • Pub. L. 104-13
  • Pub. L. 91-508
  • 12 USC 1951-1959
  • 31 USC 5311-5332
  • Pub. L. 107-56
  • 31 CFR 103.192
  • 31 CFR 103.11
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SCOTUS30 U.S. 1
SCOTUS31 U.S. 515
SCOTUS231 U.S. 28
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