The Office of Personnel Management (OPM) is issuing revised regulations governing probation on initial appointment to a competitive position; performance-based reduction in grade and removal actions; and adverse actions, mindful of the President's expressed policy direction and under its congressionally granted authority in 5 U.S.C. 3321, 4305, 4315, 7504, 7514 and 7543. On January 22, 2021, President Biden issued Executive Order (E.O.) 14003 on “Protecting the Federal Workforce” which, among other things, revoked E.O. 13839 and directed agencies to “as soon as practicable, suspend, revise, or rescind, or publish for notice and comment proposed rules suspending, revising, or rescinding, the actions” implementing various E.O.s, including E.O. 13839, “as appropriate and consistent with applicable law.” E.O. 14003 states that “[c]areer civil servants are the backbone of the Federal workforce, providing the expertise and experience necessary for the critical functioning of the Federal Government. It is the policy of the United States to protect, empower, and rebuild the career Federal workforce. It is also the policy of the United States to encourage employee organizing and collective bargaining. The Federal Government should serve as a model employer.”

These revisions both effect statutory requirements and support agency efforts in implementing E.O. 14003, as well as advance agencies' efforts to fulfill their mission and achieve superior results for the American people. With respect to statutory requirements, we have made changes to be consistent with the requirements for dual status National Guard technicians in Public Law 114-328 (Dec. 23, 2016). Additionally, we have made regulation changes to be consistent with statutory requirements for procedures under the Whistleblower Protection Act. Therefore, in accordance with E.O. 14003, OPM issued proposed regulations published at 87 FR 200, January 4, 2022, to rescind portions of the final rule published at 85 FR 65940, October 16, 2020. The proposed regulations provide agencies the necessary tools and flexibility to address matters related to unacceptable performance and misconduct or other matters contrary to the efficiency of the service, by Federal employees when they arise, consistent with the policies of E.O. 14003. Pursuant to Public Law 114-328 (Dec. 23, 2016), OPM also proposed to revise its regulations on coverage for performance-based actions and adverse actions appealable to the MSPB in accordance with statutory changes that extend title 5 rights to dual status National Guard technicians under certain conditions.

After consideration of public comments on the proposed regulations, OPM is now issuing these revised regulations. These revisions not only implement statutory requirements and support agency efforts in implementing E.O. 14003 but also facilitate the ability of agencies to deliver on their mission and provide the best possible service to the American people.

In response to the proposed rule, OPM received 31 comments during the 30-day public comment period from a variety of individuals, including current and retired Federal employees, labor organizations, Federal agencies, management associations, organizations, a law firm, and the general public. At the conclusion of the public comment period, OPM reviewed and analyzed the comments. In general, comments ranged from enthusiastic support of the proposed regulations to categorical rejection. Many commenters expressed support or non-support only on particular portions of the regulations without addressing other aspects of the rule. Many of those in support of the regulatory changes cited the benefit of returning more discretion to agencies to allow them to best manage the Federal workforce with efficiency and effectiveness.

OPM's discussion in the supplementary information of Santos v. Nat 'l Aeronautics and Space Admin., 990 F.3d 1355 (Fed. Cir. 2021), received a significant number of comments. The national unions and other commenters except for one agency who specifically mentioned Santos voiced objection to OPM's discussion regarding Santos, with a national union requesting that the discussion be clarified or withdrawn. The agency stated no opinion on OPM's treatment of Santos .

The clean-record agreement was another issue that received a substantial number of comments. Some commenters expressed agreement with the clean-record settlement portion of the rule. Other commenters vigorously commended the restoration of clean-record agreements but disagreed with certain aspects of this provision, and finally there were commenters who disagreed with the rescission.

The commenters who categorically disagreed with the proposed rule and those commenters who were silent on the rule overall and only cited opposition to particular portions raised various areas of concern such as: OPM's position on Santos, clean-record agreements, removal of the notification for the end of the probationary period, the rescission of the requirements regarding penalty determination, the agency's obligation to provide assistance to an employee who has demonstrated unacceptable performance, and the lifting of the requirement to issue the decision on a proposed removal within 15 business days of the conclusion of the employee's opportunity to respond.

OPM reviewed and carefully considered all comments in support of and in opposition to the proposed changes. The significant comments are summarized below, along with the suggestions for revisions that we considered and did not adopt. In addition to substantive comments, we received some comments that were not addressed below because they were beyond the scope of the proposed changes to regulations or were vague or incomplete. Finally, comments that were received after the due date for comments or not identified by the docket number or Regulation Identifier Number (RIN) for this proposed rulemaking, as required by the notice of proposed rulemaking, were not addressed below.

In the first section below, we address general or overarching comments. In the sections that follow, we address comments related to specific portions of the regulations.

National unions, as well as some organizations, Federal employees, and members of the public expressed strong support for many of the changes. Some national unions urged OPM to issue its final rule promptly, notwithstanding their objections to portions of the rule. A national union remarked that OPM's adoption of the proposed rule changes as written as soon as possible would provide immediate benefit to the employees they represent. Another national union declared that rescission of certain regulatory changes that implemented E.O. 13839 and which were made effective on November 16, 2020, was not only necessary because of E.O. 14003 but also “sound policy.” This national union declared that given E.O. 14003's explicit direction, OPM's rescission of its November 2020 regulatory changes is “appropriate and indeed imperative as a matter of law” and that “[r]escission is also sound policy.” Further, the national union emphasized that E.O. 13839 and OPM's implementing regulations “eviscerated federal employees' rights and were grossly unfair to hard working civil servants.” Another national union observed that the proposed rule would bring OPM's regulations into better alignment with the plain text of chapter 43 and chapter 75 of title 5 of the U.S. Code. The national union further asserted that “Title V does not elevate the need for efficient government above the requirement of due process and fundamental fairness for federal employees.” Additionally, this national union stated that “[r]escission would therefore be appropriate even in the absence of Executive Order 14003 because the changes made by the 2020 Rule were contrary to law.” A local union endorsed the rulemaking action, especially restoring the ability to make clean-record agreements.

Some organizations stated that they generally supported revocation of E.O. 13839 through the issuance of E.O. 14003 and as a result welcomed OPM's rulemaking. An organization reported that their members have observed the damaging effects of the November 2020 rule that this organization predicted in their comments at the time. Another organization concurred with this observation. These organizations, one concurring with the other's comment submissions, welcomed OPM's compliance with E.O. 14003 in the present rulemaking and looked forward to “the striking of the harmful provisions of E.O. 13839 from the Code of Federal Regulations at the earliest practicable date.”

A commenter said the proposed rule was a “necessity” in certain areas of the Federal Government. Another individual voiced support for the changes as well and remarked that “[t]his proposed rule is [a] necessity in high flux parts of federal agencies.” Many commenters in support of the regulatory changes noted the benefit of returning more discretion to agencies to allow them to best manage the Federal workforce with efficiency and effectiveness.

Pursuant to E.O. 14003, OPM has reviewed the prior regulations, which implemented certain requirements of E.O. 13839, and concluded that some provisions of the amendments of November 2020 are contrary to the current policy of the United States. The final rule effectuates E.O. 14003 requirements and allows agencies to implement policies most suitable for each respective agency based on its unique circumstances. OPM believes the rule establishes procedures and requirements needed to support managers in addressing unacceptable performance and misconduct and related matters impacting the successful operation of the Federal Government while simultaneously preserving employees' rights and protections.

An individual commenter asked “[t]o what extent will this rule affect removal and adverse actions?” As discussed in each pertinent portion of this final rule, this rulemaking affects adverse actions, including removals, in several ways. Regarding penalty considerations, the rule rescinds these provisions and explains in detail the reasons for doing so and OPM's views. They are: an express provision that an agency is not required to use progressive discipline; adoption of the test for appropriate comparators in Miskill v. Social Security Administration, 863 F.3d 1379 (Fed. Cir. 2017); adoption of the standard that requires consideration of, among other factors, an employee's disciplinary record and past work record as applied by the Merit Systems Protection Board (MSPB or the Board) in Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981); and the requirement that suspension should not be a substitute for removal. As well, OPM removed the express language limiting response and decisional periods for adverse actions, including removals. In addition, as discussed above, the rule changes the coverage criteria for dual status National Guard technicians to be consistent with Public Law 114-328 for certain adverse actions.

Other commenters expressed concerns about the proposed rule. An organization commented that “the wholesale rescinding of these commonsense ideas was not only premature, but ill-advised and harmful to the overall management of the federal workforce.” Another individual expressed that “the proposed rules do the exact opposite of its stated purpose to empower agencies to rebuild the career Federal workforce and protect the civil service rights of their employees.” This commenter went on to state that the proposed rule instead limits both an agency's ability to take an action against a Federal employee when warranted and the agency's ability to rebuild a productive Federal workforce. Also expressing disagreement with the rescissions of certain regulatory changes that implemented E.O. 13839 and which were made effective on November 16, 2020, an individual said it was “an attack” on the former administration. Additionally, a commenter stated that the November 2020 regulations should remain as they were better suited to hold a workforce accountable. Another commenter supported keeping the regulations the way they were, except for the rescission of the clean-record agreement, because “[s]ome of the changes implemented by the subject regulations made it easier to ensure good order and discipline within the civilian workforce and to ensure that the relevant processes are more streamlined than before them. There are certain aspects that should be kept.”

We disagree with the general assertions contesting promulgation of these rules and the characterization that they are ill-considered, detrimental, and ineffective. We also do not concur with the commenters' depiction that the proposed rules are restrictive and the prior rules were better suited for workforce accountability. E.O. 14003 requires OPM to rescind portions of the OPM final rule which implemented certain requirements of E.O. 13839. In fact, E.O. 14003 directs agencies to “as soon as practicable, suspend, revise, or rescind, or publish for notice and comment proposed rules suspending, revising, or rescinding, the actions.” We believe that the proposed revisions retain applicable statutory mandates while continuing to provide agencies the necessary tools and flexibility to address matters related to unacceptable performance and misconduct or other matters contrary to the efficiency of the service by Federal employees when they arise, consistent with the policies of E.O. 14003. For example, this final rule provides several necessary tools, such as previous longstanding flexibilities enjoyed by agencies in how to address performance issues with their employees under chapter 43 of title 5 of the United States Code regarding decisions on when and how performance assistance is provided to employees. The final rule also restores agencies' ability to resolve informal and formal complaints at an early stage and with minimal costs to the agency.

A management association stated they are “[o]verall extremely concerned by and confused about the proposed changes to current regulations.” Another management association stated that it was “deeply concerned by these proposals and the impact they may have across our workforce.” One of these management associations declared with regard to the November 2020 rule: “where clarity had been provided, it has been replaced with opacity and confusion.” Correspondingly, the other management association asserted that the clarity of the November 2020 rule “has been replaced with bureaucratic doublespeak.”

We disagree with the management associations' claim that the proposed rule is obscure and confusing. We do not believe that the rule is unclear or is difficult to comprehend as these regulatory changes restore well-established principles and practices that are familiar to Federal agencies and have proven to be successful tools to support managers in addressing unacceptable performance and promoting employee accountability for performance-based reduction-in-grade, removal actions, and adverse actions while recognizing employee rights and protections.

Two management associations expressed that it is “disconcerting” that the proposed rule is based entirely on a shift in policy rather than on well-founded data and evidence which should be the approach used by OPM. They emphasized this point by stating that OPM has virtually no data on the extent to which adverse actions were pursued under the current regulations that are being proposed for rescission, and OPM's lack of collection of basic data or discontinuance of data collection from agencies on performance-based and adverse actions and settlement agreements “is not a way to run the largest employer in the nation.”

An agency's ability to repeal an existing regulation through notice-and-comment rulemaking is well-grounded in the law. The APA defines “rule making” to mean “agency process for formulating, amending, or repealing a rule.” 5 U.S.C. 551(5). Agencies “are free to change their existing policies as long as they provide a reasoned explanation for the change.” See Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016); see also 82 FR 34901; 83 FR 32231. Agencies may seek to revise or repeal regulations based on changes in circumstance or changes in statutory interpretation or policy judgments. See, e.g., FCC v. Fox Television Stations, Inc., 556 U.S. 502, 514-15 (2009) (“ Fox ”); Ctr. for Sci. in Pub. Interest v. Dep't of Treasury, 797 F.2d 995, 998-99 & n.1 (D.C. Cir. 1986). Indeed, the agencies' interpretation of the statutes they administer are not “instantly carved in stone”; quite the contrary, the agencies “must consider varying interpretations and the wisdom of [their] policy on a continuing basis, . . . for example, in response to . . . a change in administrations.” Nat'l Cable & Telecommunications Ass'n v. Brand X Internet Servs., 545 U.S. 967, 981-82 (2005) (“ Brand X ”) (internal quotation marks omitted) (quoting Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 863-64 (1984)) (citing Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 59 (1983) (Rehnquist, J., concurring in part and dissenting in part)). Revised rulemaking based “on a reevaluation of which policy would be better in light of the facts” is “well within an agency's discretion,” and “[a] change in administration brought about by the people casting their votes is a perfectly reasonable basis for an executive agency's reappraisal” of its regulations and programs. Nat'l Ass'n of Home Builders v. EPA, 682 F.3d 1032, 1038 & 1043 (D.C. Cir. 2012) (“ NAHB ”).

Agencies are free to change their existing policies as long as they provide a “reasoned” explanation. See, e.g., National Cable & Telecommunications Assn., 545 U.S. at 981-982; Chevron, 467 U.S. at 863-864. This does not require the agency to “demonstrate to a court's satisfaction that the reasons for the new policy are better than the reasons for the old one.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 514, (2009). A stronger justification may be required if the agency's prior position “may have engendered serious reliance interests that must be taken into account.” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2131 (2016) (internal quotation marks and citation omitted). Here, however, the 2020 final rule was effective on November 16, 2020, and Executive Order 14003 issued just two months later, on January 22, 2021. Under the circumstances, OPM does not believe that the November 2020 final rule was in effect long enough to create significant reliance interests because of the brief time period to effect a change in agency policy to conform to any new final OPM regulation or for agencies to actually apply any change that may have been made. With almost 57% of the Executive Branch workforce represented by labor unions in over 1,800 bargaining units, agencies also needed to satisfy any applicable collective bargaining obligations with unions prior to implementation of the new final OPM regulation and related agency policy which conforms to the OPM regulation.

The regulations at subpart H of 5 CFR part 315 provide information regarding agency action during a probationary period. The November 2020 amendment required agencies to notify supervisors, at least three months prior to expiration of the probationary period, that an employee's probationary period is ending, and then again one month prior to expiration of the probationary period, and to advise a supervisor to make an affirmative decision regarding the employee's fitness for continued employment or otherwise take appropriate action. Under its authority at 5 U.S.C. 3321, OPM proposed to rescind its November 16, 2020, amendment to regulations at § 315.803(a) for two reasons. First, E.O. 14003 directs OPM to rescind any regulations effectuated by E.O. 13839, as appropriate and consistent with applicable law. Second, OPM has concluded that the amendment to the regulations at § 315.803(a), although useful to some agencies that may not have used the probationary period to full effect, placed unnecessarily restrictive procedural requirements on agencies regarding how agencies administer the probationary period. OPM has reconsidered the wisdom of a categorical, centralized rule, and has concluded that it is more efficacious and eminently reasonable to rescind this provision so that agencies feel free to adopt any procedures that work best for them for reminding supervisors not to overlook the expiration of employee probationary periods.

Some national unions supported OPM's proposed rescission of the probationary period expiration notice requirements with one national union describing the current requirements as being “unnecessary”. This national union expounded that these requirements sent the wrong message “that termination should be at the forefront of a supervisor's mind.” Further, this commenter expressed hope that OPM's proposed change will reinforce to agencies that supervisors should instead be focused on helping probationary employees succeed. Another national union commented that OPM is correct to amend this provision. However, this national union mischaracterized the change by stating that OPM is “eliminating the language requiring an affirmative supervisory determination prior to the expiration of the probationary period”. The former regulation merely provided for specific points during an employee's probationary period ( i.e., three months and one month) at which agencies must give advance notice to supervisors of expiration of probationary periods.

This commenter further asserted that the current regulation created the incorrect impression that an employee must receive an affirmative supervisory determination to successfully complete the probationary period. This national union added that the probationary period for Federal civilian employees, however, is controlled by statute and contains no such requirement.

While OPM recognizes one national union's support of the rescission of the November 2020 probationary period amendments, OPM notes that it is incorrect to interpret the proposed rule at § 315.803(a) as instructing agencies to focus on “helping probationary employees succeed” during the probationary period rather than termination. The probationary period is the final step in the examination process. Thus, probationers are candidates for final appointment, and, accordingly, the focus of supervisors should be to assess probationers to determine whether they should be retained beyond the probationary period. At most, the November 2020 regulatory amendment reminded supervisors of their responsibility to make an affirmative decision and not allow a probationer to become a career employee merely by default; it did not alter the decision-making process nor did it in any way alter the regulatory structure currently in place that governs the decision-making process for probationers.

Another commenter recommended changing the language “The agency shall utilize the probationary period as fully as possible” to the language “The agency shall utilize the probationary period fully” in the first sentence of § 315.803(a).

We are not adopting this recommendation because the proposed regulatory language better emphasizes that an agency must utilize the probationary period to the maximum extent based on the particular facts and circumstances, recognizing that the probationary period is the last and crucial step in the examination process. Supervisors must determine the employee's fitness for continued employment; this can be assessed in several ways, including but not limited to, closely monitoring and documenting the employee's performance and progress during the employee's first year of employment and providing timely and meaningful feedback to the employee; providing training that would enable the employee to more successfully perform the duties of the position; and placing the employee on a performance improvement plan as appropriate.

Despite some support for the proposed rule, OPM received comments from those who expressed opposition and concern. One organization expressed that the probationary period has not been effectively used and supported the requirement to notify management at the 90-day point. This commenter was perplexed by the rescission of the requirement to notify management at the 90-day point of an employee's probationary period which they viewed as an “innocuous notice.” The organization stated that they understood the rescission was required by E.O. 14003 and appreciated that OPM continues to encourage agencies to provide managers with notifications when probationary periods are expiring.

Two management associations also strongly opposed OPM's proposal to rescind the requirements at § 315.803(a). In the management associations' view, “[t]his issue is too important to leave up to agencies, who have proven themselves incapable of self- regulation and proper use of the probationary period.” The management associations stated that probationary periods are a critical tool for effective employee onboarding. These commenters discussed “countless reports” from the MSPB and Government Accountability Office (GAO) that highlight the “government's inconsistent and poor use of the probationary period for new hires and for new supervisors.” These management associations also asserted that a core finding of those reports is that managers do not properly use the probationary period because managers are not reminded when an employee's probationary period is reaching its conclusion. They contended that when the probationary period ends, employees are automatically deemed fit for service. These commenters further maintained that the probationary period “is meant to be the last crucial step in the examination process, yet instead, it is largely obsolete and formalistic.” The management associations stated that to improve the practical usefulness of probationary periods, agencies need to create systems for providing many advance notices that an employee's probationary period is concluding and require supervisors to make an affirmative determination regarding the employee's completion of their probationary period. The commenters declared that when the probationary period is not used appropriately then employees are not “set up for success and may be entrenched in roles they cannot perform.” One association opined that determinations regarding probationary periods should be made by permanent managers while another association stated that it is imperative that agencies make appropriate use of the probationary periods for not only new hires, but also for new supervisors and executives.

OPM will not make any revisions based on these comments. As stated earlier, E.O. 14003 directs OPM to rescind any regulations effectuated by E.O. 13839, as appropriate and consistent with applicable law. OPM has concluded that the amendment to the regulations at § 315.803(a) placed centralized categorical procedural requirements on how agencies administer the probationary period. OPM believes these requirements prevented agencies from implementing policies most suitable for each respective agency based on their unique circumstances. While agencies are encouraged to notify supervisors that an employee's probationary period is ending, OPM believes the frequency and timing of notifications should be left up to the discretion of each agency. The commenters noted the critical nature of the probationary periods, and OPM guidance has stated previously that the probationary period is the last and crucial step in the examination process. The probationary period is intended to give the agency an opportunity to assess, on the job, an employee's overall fitness and qualifications for continued employment and permit the termination without chapter 75 procedures of an employee whose performance or conduct does not meet acceptable standards to deliver on the mission. Thus, it provides an opportunity for supervisors to address problems expeditiously, with minimum burden to the agency, and avoid long-term problems inhibiting effective service to the American people. Employees may be terminated from employment during the probationary period for reasons including demonstrated inability to perform the duties of the position, lack of cooperativeness, or other unacceptable conduct or poor performance. As a matter of good administration, agencies should ensure that their practices make effective use of the probationary period. While OPM proposed to rescind a government-wide requirement to notify supervisors at prescribed intervals when an employee's probationary period is ending, agencies would not be precluded from providing such notifications under their own authorities and are strongly encouraged to do so. OPM plans to issue a Chief Human Capital Officers (CHCO) Memorandum to encourage agencies to adopt a notification process.

Section 432.102 identifies actions and employees covered by this part. The final rule at § 432.102 updates coverage to align with the National Defense Authorization Act (NDAA) for Fiscal Year 2017, Public Law 114-328 (Dec. 23, 2016). Specifically, section 512(a)(1)(C) of the 2017 NDAA provides appeal rights under 5 U.S.C. 7511, 7512, and 7513 to dual status National Guard technicians for certain adverse actions. Section 512(c) repealed 5 U.S.C. 7511(b)(5), which excluded National Guard technicians from the definition of “employee.”

The repeal of 5 U.S.C. 7511(b)(5) and the coverage of National Guard technicians under 5 U.S.C. 7511, 7512, and 7513 required that OPM review 5 U.S.C. 4303. Section 4303(e) provides that any employee who is a preference eligible, in the competitive service, or in the excepted service and covered by subchapter II of chapter 75, and who has been reduced in grade or removed under this section is entitled to appeal the action to the MSPB under section 7701.

Accordingly, MSPB appeal rights must be extended to National Guard technicians who are defined in section 4303(e) for consistency with the statutory requirements in Public Law 114-328. OPM will revise paragraphs (b) and (f) of § 432.102 to reflect that certain performance-based actions against dual status National Guard technicians are no longer excluded. Specifically, the final rule adds as an exclusion an action against a technician in the National Guard concerning any activity under section 709(f)(4) of title 32, United States Code, except as provided by section 709(f)(5) of title 32, United States Code. In addition, the final rule removes the exclusion at § 432.102(f)(12): “A technician in the National Guard described in 5 U.S.C. 8337(h)(1), employed under section 709(b) of title 32.” The impact of the repeal of 5 U.S.C. 7511(b)(5) on adverse actions taken under chapter 75 will be further discussed below in the Supplementary Information for § 752.401.

Two organizations, one concurring with the other's comment submissions, expressed support for the extension of civil service protections to National Guard technicians under Public Law 114-328 as well as support for OPM's inclusion of an implementing regulation for that statute in this rule.

This section provides requirements in chapter 43 of title 5 of the United States Code for addressing unacceptable performance. While the regulatory amendments to part 432 made effective November 16, 2020, are within OPM's existing authority under 5 U.S.C. 4303 and 4305, E.O. 13839 was the catalyst for the changes. OPM proposed to amend the regulation at § 432.104 to remove the following language: “The requirement described in 5 U.S.C. 4302(c)(5) refers only to that formal assistance provided during the period wherein an employee is provided with an opportunity to demonstrate acceptable performance, as referenced in 5 U.S.C. 4302(c)(6). The nature of assistance provided is in the sole and exclusive discretion of the agency. No additional performance assistance period or similar informal period shall be provided prior to or in addition to the opportunity period provided under this section.” In addition, OPM will re-insert at § 432.104 a statement that was in the regulation prior to the November 2020 amendment: “As part of the employee's opportunity to demonstrate acceptable performance, the agency shall offer assistance to the employee in improving unacceptable performance.”

Some national unions expressed support for OPM's proposed changes to § 432.104. One union stated that OPM's November 2020 regulatory changes limited the types of assistance and opportunities that agencies could offer to employees to help them demonstrate acceptable performance. The union added, “Employees deserve a full and fair opportunity to improve their performance with assistance from their employer.” Moreover, this national union stated agencies should have the needed flexibility to help employees improve their performance to an acceptable level. One of these national unions offered comments of support on sections §§ 432.104 and 432.105 which were identical to each other and are addressed in § 432.105.

Indeed, this rule reverts to the language in § 432.104 prior to the November 2020 amendments regarding the agency's obligation to provide assistance to an employee who has demonstrated unacceptable performance. The language restates the statutory requirement described in 5 U.S.C. 4302(c)(5) that agencies are obligated to provide performance assistance during the opportunity period. In the proposed rule, OPM emphasized that the employee has a right to a reasonable opportunity to improve, which includes assistance from the agency in improving unacceptable performance.

Though two organizations expressed general support for this rulemaking, they mischaracterized OPM's November 2020 rulemaking. One organization, with which the other concurred, erroneously referred to “rules which set fixed durations for Performance Improvement Periods (PIPs)” and stated that such rules “resulted in arbitrarily inflexible PIP timeframes rather than the prior tailoring of PIPs to the nature of the work involved”. The organizations credit OPM with restoring agencies' discretion in these matters. OPM points out that there was no restriction on the duration of PIPs or tailoring of PIPs to the nature of the work involved in our prior rulemaking. Specifically, OPM did not amend the language in § 432.104 that reads, “For each critical element in which the employee's performance is unacceptable, the agency shall afford the employee a reasonable opportunity to demonstrate acceptable performance, commensurate with the duties and responsibilities of the employee's position.”

Two management associations disagreed with OPM's proposal to amend § 432.104. The management associations expressed concern that the proposed revisions to § 432.104 would rescind OPM's prior regulation governing the process for addressing unacceptable performance. The organizations asserted, “OPM's proposed regulation would return performance management to allow for additional processes not provided for in the plain language reading” of 5 U.S.C. 4302 and 4303, which the organizations also described as “extra-statutory protections” which would be “at the expense of taxpayer accountability at a time when public trust in government remains dangerously low, regardless of political ideology.” The organizations stated that research indicates only about one-quarter of Americans say they can trust the government in Washington to do what is right “just about always” (2%) or “most of the time” (22%) and that public distrust is deepened each time administrative agencies impose additional burdens on a supervisor's capacity to hold employees accountable. One of the associations shared that its “members are effectively unable to remove an employee for unacceptable performance. Instead, they find themselves hoping to identify misconduct because they know those cases are easier to adjudicate and have a clear path to removal.” Both associations stated that employee protections are critical to the merit system, and the “imposition of excessive hurdles to successful employee performance management frustrates the effective functioning of our government and is not in the public interest.” In further criticism, one of these commenters added that this “imposition” also “discourages well-qualified candidates from joining leadership's ranks.”

OPM disagrees with the associations' characterization that the rescission of the November 2020 changes to § 432.104 allows for extra-statutory protections at the expense of taxpayer accountability. OPM reiterates that agencies should take swift action to address and resolve poor performance, including by communicating clear performance standards and expectations to employees; providing periodic feedback on performance; making full use of the probationary period for employees; and maintaining effective lines of communication with a well-trained human resources staff and agency legal counsel. We believe that agencies can deliver on their mission and uphold public trust and at the same time provide employees assistance and a reasonable opportunity to demonstrate acceptable performance through efficient and effective use of chapter 43 and amended § 432.104.

A commenter recommended that OPM edit § 432.104 to read, “For each critical element in which the employee's performance is unacceptable, the agency shall afford the employee 120 days to demonstrate acceptable performance, commensurate with the duties and responsibilities of the employee's position. There's only one year in the evaluation period.” OPM disagrees with the commenter's suggested changes to the current regulation. First, OPM is opposed to prescribing an opportunity period of any specific length. We note that § 432.104 requires the agency to “afford the employee a reasonable opportunity to demonstrate acceptable performance, commensurate with the duties and responsibilities of the employee's position.” OPM believes the supervisor is in the best position to determine the length of the opportunity to demonstrate acceptable performance. The duration of the opportunity period should be left to the discretion of each agency, to include consultation with human resources staff and any applicable collective-bargaining agreement.

Second, it is unclear why the commenter suggested insertion of the sentence “There's only one year in the evaluation period.” OPM will not adopt the suggestion because it is unnecessary and contrary to OPM's performance management regulations in 5 CFR part 430. The length of a covered agency's appraisal period must be established in accordance with § 430.206 of title 5, Code of Federal Regulations, which states, “The appraisal period generally shall be 12 months so that employees are provided a rating of record on an annual basis. A program's appraisal period may be longer when work assignments and responsibilities so warrant or performance management objectives can be achieved more effectively.” The length of the appraisal period does not determine the length of the opportunity period.

A commenter disagreed with OPM's proposal to amend § 432.104, and in particular, OPM's rationale for the change. With regard to the statement “[w]hile the regulatory amendments to part 432 made effective November 16, 2020, are within OPM's existing authority under 5 U.S.C. 4303 and 4305 . . . .”, the commenter asked if the current language is within the existing authority, why does it need to be changed. Moreover, the commenter explained, “The current language does not place any unnecessary restrictions or limitations on agencies regarding their decision on providing assistance, it provides clear guidance on what the agency is responsible for in addressing performance issues.”

We disagree with this comment. Although the current language for regulatory amendments to part 432 made effective November 16, 2020, is within OPM's existing authority under 5 U.S.C. 4303 and 4305, the proposed changes also are a reasonable interpretation of the statute and within OPM's authority. The provision is being removed from part 432 through the required regulatory process. In addition, as we explained in the proposed rule, E.O. 13839 was the catalyst for the changes made effective on November 16, 2020. E.O. 14003, among other things, revoked E.O. 13839 and directed agencies to “as soon as practicable, suspend, revise, or rescind, or publish for notice and comment proposed rules suspending, revising, or rescinding, the actions” implementing various Executive Orders, including E.O. 13839, “as appropriate and consistent with applicable law.” OPM did not require an Executive Order to effect this change.

As discussed in the proposed rule, OPM believes that the November 2020 amendments placed restrictions and limitations on agencies regarding decisions on when performance assistance is provided to employees that, upon further consideration, were unhelpful. These constraints removed previous flexibilities enjoyed by agencies in addressing performance issues with their employees under chapter 43. By placing these restrictions on agencies, OPM believes it was not supporting agencies and supervisors in determining the most effective assistance for struggling employees.

This section specifies the procedures for proposing and taking action based on unacceptable performance once an employee has been afforded an opportunity to demonstrate acceptable performance. The regulatory amendments to § 432.105(a)(1) that became effective November 16, 2020, were made for consistency with and promotion of the principles of E.O. 13839 within the bounds of OPM's regulatory authority conferred by Congress. For consistency with and promotion of the principles of E.O. 14003 and in accordance with its authority under 5 U.S.C. 4302, OPM proposed to revise the regulation at § 432.105(a)(1).

The regulatory change to § 432.105(a)(1) removes the language: “For the purposes of this section, the agency's obligation to provide assistance, under 5 U.S.C. 4302(c)(5), may be discharged through measures, such as supervisory assistance, taken prior to the beginning of the opportunity period in addition to measures taken during the opportunity period. The agency must take at least some measures to provide assistance during the opportunity period in order to both comply with section 4302(c)(5) and provide an opportunity to demonstrate acceptable performance under 4302(c)(6).”

OPM believes that the November 2020 amendment to the regulations at § 432.105(a)(1) placed too much emphasis on supervisory assistance taken prior to the beginning of the opportunity period and placed too little emphasis on supervisory assistance taken during the opportunity period and could result in some agencies relying too much on supervisory assistance outside of the opportunity period to support any performance-based action taken against an employee. Two national unions support OPM's proposal to rescind the language in 5 CFR 432.105(a)(1) that pertains to assistance offered to employees prior to and during an opportunity period. One of these national unions agreed with OPM that the November 2020 amendments placed too much emphasis on agencies providing assistance before the opportunity period and not enough emphasis on assistance given during the opportunity period. Similarly, another national union stated that OPM is correctly concerned that the regulatory language could result in agencies relying too much on supervisory assistance offered outside of the opportunity period to support a performance-based action against an employee. The union stated also, “Employees are entitled to supervisory assistance and a meaningful opportunity to improve, and help offered both prior to and during the opportunity period will aid in achieving this.” (emphasis in original)

After agreeing with OPM's rationale for the decision, a national union erroneously asserted that the prior regulatory changes were inconsistent with the language and intent of the Civil Service Reform Act (CSRA) “because they failed to ensure that employees were provided with a reasonable opportunity to improve during the performance improvement period, which is a `substantive guarantee[ ] and may not be diminished by regulation.' ” In support of this statement, the union cited Sandland v. General Services Admin., 23 M.S.P.R. 583, 589 (1984). The union added that rescission of the prior amendments to §§ 432.104 and 432.105 will better enable agencies to effectively utilize the Federal workforce by requiring and encouraging agencies to provide employees with meaningful opportunities to improve. OPM believes the union is in error because the prior regulatory changes were not contrary to the language and intent of the CSRA. The changes did not inhibit an agency's ability to ensure that employees were provided with a reasonable opportunity to improve during the performance improvement period.

A commenter recommended that OPM edit § 432.105(a)(1) to insert “120 days” as the duration of the opportunity to demonstrate acceptable performance. The commenter made a similar suggestion to edit § 432.104 to require a 120-day opportunity period. As explained above under § 432.104, OPM will not prescribe an opportunity period of any length. The supervisor is in the best position to determine the length of the opportunity to demonstrate acceptable performance. OPM believes the duration of the opportunity period should be left to the discretion of each agency, to include consultation with human resources staff and any applicable provision of a collective-bargaining agreement.

Regardless of the length of the opportunity period, OPM reminds agencies that they must provide assistance during the opportunity period in accordance with 5 U.S.C. 4302(c)(5). OPM has long encouraged agencies to act promptly to address performance concerns as soon as they arise. Supervisors should continually monitor performance, provide ongoing feedback, and assist employees who exhibit performance issues. Agencies should also remain mindful that third parties (for example, arbitrators and judges) place a strong emphasis on a supervisor's effort to assist the employee in improving the employee's performance. Evidence that the supervisor engaged an employee in discussion, counseling, training, or the like prior to the opportunity period may assist the agency in developing a stronger case before a third party that the employee was given a reasonable opportunity to demonstrate acceptable performance before a performance-based action is taken.

Several commenters noted disagreement with OPM's inclusion in the supplementary information of a discussion of Santos v. National Aeronautics and Space Admin., 990 F.3d 1355 (Fed. Cir. 2021). In particular, commenters stated that inclusion was unnecessary for the purposes of this regulation and that the Santos court relied on statutory language and not on OPM's interpretation in reaching its conclusion. In Santos, the court remarked on OPM's statement in prior supplementary information, and OPM's discussion of Santos was for the sole purpose of clarifying the meaning of that prior supplementary information. OPM's reference to Santos did not concern the proposed regulation. Accordingly, OPM is not making any changes to the proposed regulation in response to these comments. OPM further recognizes that, until and unless Santos is revisited, agencies proposing a removal under 5 U.S.C. 4302(c)(6) must establish that the employee performed unacceptably both prior to and during the performance improvement period.

In addition, § 432.105 addresses notice requirements when an agency proposes to take action based on an employee's unacceptable performance during or after the opportunity period once the employee has been afforded an opportunity to demonstrate acceptable performance. An agency must afford the employee a 30-day advance notice of the proposed action that identifies both the specific instances of unacceptable performance by the employee on which the proposed action is based and the critical element(s) of the employee's position involved in each instance of unacceptable performance. An agency may extend this advance notice period for a period not to exceed 30 days under regulations prescribed by the head of the agency. For the reasons listed in § 432.105(a)(4)(i)(B), an agency may further extend this advance notice period without OPM approval.

OPM proposed to revise the reason at § 432.105(a)(4)(i)(B)( 6 ), which was derived from 5 U.S.C. 1208(b), because the statutory provision was repealed by section 3(a)(8) of Public Law 101-12, the Whistleblower Protection Act (WPA) of 1989. Section 1208(b) granted agencies the authority to extend the advance notice period for a performance-based action in order to comply with a stay ordered by a member of the MSPB. Concurrent with the repeal of 5 U.S.C. 1208(b), the WPA established 5 U.S.C. 1214(b)(1)(A)(i), wherein the Office of Special Counsel is granted the authority to request any member of the Board to order a stay of any personnel action for 45 days if the Special Counsel determines that there are reasonable grounds to believe that the personnel action was taken, or is to be taken, as a result of a prohibited personnel practice. Further, under 5 U.S.C. 1214(b)(1)(B), the Board may extend the period of any stay granted under subparagraph (A) for any period which the Board considers appropriate. If the Board lacks a quorum, any remaining member of the Board may, upon request by the Special Counsel, extend the period of any stay granted under subparagraph (A). Therefore, OPM proposed to change the reason at subparagraph (B)(6) to read as follows: “[t]o comply with a stay ordered by a member of the MSPB under 5 U.S.C. 1214(b)(1)(A) or (B).” A national union supports this change.

Section 5 of E.O. 13839 established a requirement that an agency shall not agree to erase, remove, alter, or withhold from another agency any information about a civilian employee's performance or conduct in that employee's official personnel records, including an employee's Official Personnel Folder and Employee Performance File, as part of, or as a condition to, resolving a formal or informal complaint by the employee or settling an administrative challenge to an adverse personnel action. Such agreements have traditionally been referred to as “clean-record” agreements. Consistent with the rescission of E.O. 13839 and pursuant to its authorities under 5 U.S.C. 2951 to maintain personnel records and under 5 U.S.C. 1103(a)(5) to execute, administer, and enforce the law governing the civil service, OPM proposed to rescind § 432.108, Settlement agreements. OPM's proposal to rescind the current regulations for settlement agreements applies to actions taken under parts 432 and 752. All comments related to settlement agreements are addressed here in the Supplementary Information for the change at § 432.108, where the change appears first.

Three national unions, a local union, an organization, and five individual commenters expressed explicit support for OPM's proposal to rescind the settlement agreement provisions in 5 CFR parts 432 and 752. One of the national unions stated that settlements are less costly and burdensome than litigation or arbitration, and it is in employees' as well as management's interest to encourage resolution of employment disputes through settlement. The national union described a clean-record agreement as a reasonable and frequently used tool that agencies and employees should have. One particular benefit this union highlighted is the removal of the November 2020 regulations that allow an agency to cancel or vacate a personnel action when persuasive evidence casts doubt on the validity of the action. The union labeled this standard as confusing and said that it appears to wrongly place the burden of proof on the employee facing the action. This union welcomed OPM's proposed rescission of this language.

The second national union stated that removal of the regulatory provisions barring clean record settlements will lead to more efficient government administration while also promoting fairness and the effective resolution of employment disputes. This union added that the prior regulations created a substantial amount of unnecessary and wasteful litigation. Moreover, this union stated that the proposed changes will reduce the likelihood of “arbitrary and capricious” agency action by removing the incentive for agencies to unilaterally modify an employee's personnel record to avoid litigation.

The third national union voiced overall support for the rescission, though they objected to a related statement in the proposed rule that is discussed below along with other commenters who expressed a similar concern. Furthermore, a local union described clean-record agreements as an effective labor-management relations tool that benefits workers, management, and taxpayers. This local union added that agency and union officials at the lowest levels know how best to resolve issues and should have maximum flexibility to do so.

An organization also stated that the prohibition on clean-record agreements is harmful to employees and employers because it removes a valid and useful tool that promotes productive settlement of employment disputes. This organization shared that it has experience with several settlements that it reached on behalf of clients that were possible “only because of the availability of clean record terms.” Additionally, this organization expressed particular concern for public employees who engage in protected whistleblower activity, stating that they are often retaliated against with unfounded or exaggerated claims of poor performance or misconduct and unwarranted disciplinary actions. The organization stated further that the existing rule prevents agencies from correcting personnel records that employees allege contain false and retaliatory material. The organization also observed that in order to avoid lengthy and costly litigation over the accuracy and validity of matters reflected in the personnel record, the employee and the agency often wish to adopt a clean record as part of a settlement. This organization believes this rulemaking “would reestablish a workable standard where agencies and employees can negotiate in good faith to provide employees with clean record settlements that do not obstruct future employment within or outside the federal government.” Finally, the organization believes this rulemaking will conserve agency resources that otherwise would be used in protracted litigation and will make it more possible for employees who engaged in protected activity to move on after retaliation by former supervisors.

Another commenter discussed “first-hand knowledge” that regardless of the type or severity of the matter in dispute, or the organizational levels of the relevant parties, the prohibition on clean-record agreements has adversely impacted agency mission accomplishment and degraded the employees' well-being. The commenter stated that the prohibition has severely limited opportunities for agencies to efficiently and cost-effectively manage employee disputes at the lowest possible level in that settlement officials have few, if any, alternatives to taxpayer-funded monetary remedies and, consequently, have little incentive to resolve conflict early. The commenter represented that removing this overly broad restriction is greatly appreciated by all in the dispute resolution field, and will have significant, measurable positive outcomes throughout the Federal Government.

Several of the supportive commenters observed that the prohibition on clean-record agreements impacted settlement of employment discrimination or Equal Employment Opportunity (EEO) matters. OPM notes that for the purpose of this rule the settlement agreements addressed are those arising from agency actions covered by chapter 43 and chapter 75. One commenter stated that clean-record provisions have made it “extraordinarily more difficult” for employment law practitioners and employees to reasonably resolve matters they believe to be unjust without resorting to clogging the already taxed MSPB or Equal Employment Opportunity Commission systems. The commenter observed, “Many matters could have been resolved with, for example[,] a simple restoration of leave and removal of so-called bad paper or coding a termination as a resignation.” Moreover, the commenter added that considerations “such as job references and the interview process in general may serve to root out employees who should not be re-hired as government employees without tying the hands of those who are having [to] endure unnecessary litigation.”

Another supportive commenter stated that the courts are currently overwhelmed with employment discrimination cases, many of which could be resolved with a clean-record agreement. The commenter continued that it is costly and inefficient and results in unnecessary court congestion, unfair expense to employees and the agency, and backlogs cases affecting all subsequent cases. The commenter opined that if it takes a court order to remove a record, it should have taken a court order to place the record. The commenter asked, “Why should the standard be higher to remove the record than to place the record in the first place?” The commenter added that if the agency has discretion to put the record into official personnel files, the agency should have the discretion to remove them.

Yet another commenter stated that in representing several employees in Equal Employment Opportunity (EEO) complaints the ban on clean-record agreements has created incredible harm to many parties, but most of all to EEO complainants. The commenter remarked that the prohibition resulted in “a huge waste of time” in litigation which usually takes years when the employee just urgently needs to move on. Further, the commenter claimed that a few agency attorneys and judges confided privately about the waste of time and backlog. The commenter observed that all parties simply would have preferred to move on with little interest in litigation.

OPM recognizes the commenters' support for rescission of the clean-record provisions in §§ 432.108, 752.104, 752.203(h), 752.407, and 752.607.

Three management associations and four individuals disagreed with OPM's proposal to rescind the settlement agreement provisions. One management association described the prohibition on clean-record agreements as one of the most valuable parts of the rule that took effect in November 2020. This management association stated that some of its members were “victims” of clean-record settlements and “lied to by previous supervisors because the agreement had a confidentiality clause.” The management association said this is a practice that should be eliminated from the civil service. While another commenter discussed seeing clean-record agreements typically accompanied by “muzzling supervisors and directing personnel to withhold or destroy information.” This commenter recommended that OPM explicitly prohibit clean-record agreements in the regulation.

We believe that clean-record agreements should be an option for agencies to resolve informal and formal complaints when the agency deems it is in the best interests of effective and efficient management to achieve the agency's mission. OPM believes that alleged anecdotal instances of misuse of the discretion to use clean-record agreements should not deprive agencies of the option to use clean-record agreements to resolve informal and formal complaints and settle administrative challenges in a manner that balances the needs of the agency and fairness to the employee. In regard to the commenter's assertions that supervisors are silenced and personnel are directed to withhold or destroy information, we note that merit system principles require that Federal employees should maintain high standards of integrity, conduct, and concern for the public interest. After a settlement agreement is reached, the agency should properly advise supervisors on how to adhere to its terms regarding permitted disclosures and records management. As noted by supportive commenters, there are many disadvantages to prohibiting clean-record agreements: reduced likelihood of parties reaching a mutually agreeable resolution of informal or formal complaints; increase of costly litigation and arbitration; and crowding of the dockets of third-party investigators, mediators, and adjudicators. Cases languishing impact the agency's credibility, supervisor morale, and efficient execution of the agency's mission. OPM's own conclusions as well as the feedback from stakeholders weigh in favor of rescission.

Some commenters asserted that clean-record settlements are wasteful of taxpayer dollars while another commenter stated it was unlawful and an additional commenter posited that this provision should be withdrawn. Some management associations opined that the American taxpayer is entitled to an accurate recording of an employee's performance. One management association asserted that taxpayers should not suffer the results of employees committing the same offenses repeatedly across government while another management association stated that taxpayers should not endure the consequences of inadequate employee job performance or employees committing the same offenses time and again across government. Both management associations contended that “flexibility should not be the code word for diminished accountability.”

One commenter posited that “arbitrary” rule changes cause undue hardship and waste taxpayer dollars by paying employees who need to be removed and are not. Similarly, another commenter stated that clean-record agreements “perpetuate[] that sense of entitlement that some Federal employee[s] have, that the Federal Government somehow owes them”. This commenter asserted that this is offensive to the American taxpayer and unfair to Federal employees who adhere to the rules and do their job. The commenter requested that OPM withdraw the proposal to rescind the clean-record provisions. Finally, an individual stated that removal of the clean-record rule is unlawful.

OPM disagrees with the commenters. The purpose of the prohibition rescission is to remove a provision that hampers agencies' ability to resolve workplace disputes at an early stage and with minimal costs to the agency when appropriate. Rather than adverse consequences for taxpayers, the numerous benefits of clean-record settlements have been detailed by agencies and stakeholders as providing greater efficiency and effectiveness. These significant advantages include minimizing the burden of the substantial cost of litigation in relation to the issues at stake and achieving a result that benefits agencies and taxpayers. Further, this rule is not unlawful or arbitrary. E.O. 14003 requires that OPM rescind the prohibition, and OPM, pursuant to its authorities under 5 U.S.C. 2951 to maintain personnel records and under 5 U.S.C. 1103(a)(5) to execute, administer, and enforce the law governing the civil service, has decided to rescind §§ 432.108, 752.104, 752.203(h), 752.407, and 752.607. We believe this rule will have a positive impact on the Federal Government's ability to accomplish its mission for the American taxpayers.

Some commenters remarked that clean records prevent holding employees accountable for their performance and conduct. Among these commenters, a management association stated that we should all be striving to maintain high standards of integrity and accountability, not longevity and seniority at all costs. Another commenter expressed disagreement with the proposed rule by stating that “too many employees” are not held accountable for issues that warrant discipline and “it all just goes away.” This commenter recommended, “Do not change back to the way of hiding history of bad employees.” Yet another individual related seeing clean records used as a tool to undermine the agency's decision to hold an employee accountable for their actions or lack thereof, basically rewarding an employee for their bad behavior or performance.

OPM agrees that all members of the Federal Government should strive to maintain high standards and accountability. However, we disagree that clean-record agreements are inconsistent with accountability. In adhering to the principles of high standards of integrity and accountability, each agency decision as to whether and how to settle a case should be based on valid considerations, such as litigation risk. Further, OPM notes that the statutory and regulatory frameworks for addressing poor performance and misconduct and rewarding satisfactory or better performance remain intact. Effective utilization of the available tools and flexibilities will permit agencies to address poor performance and misconduct when they arise, consistent with the policies of E.O. 14003.

Some management associations asserted that the proposed rescission overvalues the agencies' “ability to resolve informal and formal complaints at an early stage and with minimal costs to the agency,” while undervaluing the process provided by the merit system.

OPM disagrees with these comments. Decisions to resolve informal and formal complaints at an early stage are at the discretion of the agency's authority. Thus, returning this firmly established discretion to agencies for resolving informal and formal complaints gives the proper value to agencies' authority in this area without imposed restrictions. Further, granting agencies a degree of flexibility to resolve individual workplace disputes does not undervalue the merit system process. Clean-record agreements provide agencies with an important tool and flexibility, consistent with the policies of E.O. 14003.

Commenters expressed that clean-record agreements have a negative impact on hiring practices. A management association asserted that clean-record settlements are a favored way to help their constituents get re-hired. Other management associations asserted that OPM emphasizes “flexibility” to resolve disputes, but in reality the proposed changes in this rule enable agencies to pass problematic employees between one another. In fact, a commenter stated that clean records result in a “vicious cycle” whereby the employee is allowed to pursue employment at another agency, where their behavior/performance does not improve, and that agency bears the cost, time, and effort to hold the employee accountable. A management association added that failing to document a reason for removal leads directly to “dangerous situations for Federal workers who serve honorably and places managers in impossible situations.”

OPM disagrees with these characterizations of rescinding this regulatory provision. We are simply rescinding a rigid regulation that, upon reflection and further consideration, we deem impracticable, unrealistic, and unhelpful because it absolutely prohibits agencies from altering or removing information about performance or misconduct as a condition to resolve or settle a complaint or challenge to a personnel action, even where doing so furthers the best interests of an effective and efficient Government and the interests, voluntarily expressed, of both parties to personnel litigation. OPM's rescission does not take a position on whether any particular case should be settled, and does not prohibit settlements, which through lessening a penalty or permitting resignation, may in certain circumstances lessen the risk of outright reversal with its high costs without benefit, or may otherwise adversely affect governmental interests.

Some management associations stressed the importance of maintaining accurate official personnel records and stated that they are “extremely concerned by OPM's proposal to delete § 432.108, 752.104, 752.407, and 752.607”. They believe the proposed rule lacks the balance that existed in the regulations that were effective in November 2020 whereby OPM banned clean-record settlements but permitted an agency to correct errors, either unilaterally or pursuant to a settlement agreement, based on discovery of agency error or illegality. To further illustrate their views on the balance that currently exists, the management associations quoted OPM's November 2020 final rule, which stated that agencies are permitted to “modify an employee's personnel file” when persuasive evidence comes to light prior to the issuance of a final agency decision on adverse action “casting doubt on the validity of the action or the ability of the agency to sustain the action in litigation”. These management associations assert that the record should reflect what is correct. Another commenter discussed seeing a large amount of destruction and altering of official personnel records, which the commenter described as “fraudulent, unethical, and demoralizing to the workforce.” This commenter asserted that there is no legitimate reason to alter an official record. The commenter believes that 5 CFR 432.108(a) correctly prohibits such dishonesty and should be left standing. Regarding correcting errors in records, the commenter offered that the proper approach is to add a statement to the existing record explaining why it is in error and updating it, thus maintaining the correct history of the record. The commenter asserted that this standard is “the only way that “agencies [c]ould still adhere to the principles of promoting high standards of integrity and accountability within the Federal workforce.” The commenter stated that the corrective actions currently allowed in 5 CFR 432.108(b) and (c) are too open-ended and should be amended to require a correct historical record.

OPM will not make any changes based on these comments. Agencies are still permitted to correct errors based on discovery of error or illegality, but there are other considerations at play, including evolving, unforeseen litigation risks, among others. Nor is OPM asserting a general and all-encompassing position that settlement of disputes or its opposite is to be commended or favored. Each matter is to stand on its own footing. Still less is OPM suggesting that agencies should lightly change personnel records, and certainly not in a way that undermines Government integrity. Agencies are expected to exercise good judgment in determining whether and how to settle a case after due consideration of all relevant factors, including litigation risk.

We also disagree with the comment that there is “no legitimate reason” to alter an official record. Legitimate reasons include a cancellation or correction ordered by a third party or discovery of agency error, and such corrections do in fact promote integrity and ethical standards. Moreover, the purpose of paragraphs (b) and (c) that one commenter asks OPM to retain was to clarify for agencies that the prohibition on clean-record agreements did not preclude agencies from taking corrective action based on discovery of agency error or discovery of material information prior to final agency action. The removal of the prohibition on clean-record agreements means that the clarifications for corrective action are no longer needed in parts 432 and 752. These clarifications are rooted in statutes, regulations, and policies that are still applicable to Federal agencies, including agencies' obligation to maintain accurate personnel records in accordance with the Privacy Act, 5 CFR part 293, and OPM's Guide to Personnel Recordkeeping. Agencies continue to have the authority to modify an employee's personnel file or other agency files to remove inaccurate information or the record of an erroneous or illegal action.

In further disagreement with the change in the clean-record agreement requirements, some management associations remarked, “Even OPM's efficiency argument fails.” They posited that OPM presented “no data or evidence that agencies were impeded in their ability to adjudicate employee complaints and disputes” and simply listened to recurring objections from agencies that were required to enforce the law and comply with procedures enacted by Congress and implemented through OPM regulation.

OPM disagrees with the commenters' characterization that OPM's rulemaking requires data or evidence that agencies were adversely impacted in their ability to resolve employee complaints and disputes. OPM acknowledged in the Expected Impact section of the proposed rule, that OPM has virtually no data on the extent to which adverse actions were pursued under the regulations proposed for rescission here. As discussed above, agencies “are free to change their existing policies as long as they provide a reasoned explanation for the change.” See Encino Motorcars, LLC v. Navarro. Among other factors, OPM considered both opposing and supporting perspectives raised by stakeholders during the notice-and-comment period.

For the reasons discussed above, OPM will rescind §§ 432.108, 752.104, 752.203(h), 752.407, and 752.607 in their entirety.

While some commenters voiced overall support for rescission of this requirement, they opposed the provision related to the obligation to speak truthfully to Federal investigators performing background investigations. One national union, two organizations, and one individual objected to OPM's statement in the January 2022 proposed rule that, “In addition, agencies are advised that, in any such [clean-record] agreement, they have an obligation to speak truthfully to Federal investigators performing future background investigations with respect to the employee and may not agree to withhold information about the circumstances of an individual's departure from the agency.”

Though a national union expressed overall support for rescinding the prohibition on clean-record agreements, the union stated that the advice in question is vague and could give rise to potential breaches, particularly in settlements that contain “no admission” and confidentiality clauses. The union requested that OPM work with all Federal employee unions, and other stakeholders as appropriate, to develop a shared understanding of this section of the commentary and to advise agencies appropriately thereafter.

We disagree. OPM believes the language in question is clear and consistent with what agencies have always been required to do regarding the need to speak truthfully to Federal investigators performing background investigations with respect to an employee covered by a settlement agreement. On any matters involving employees or former employees covered by a settlement agreement, agency officials should always consult with agency legal counsel before responding to inquiries about these individuals to avoid violating enforceable settlement agreements.

One organization wrote that the statement concerning speaking truthfully to Federal investigators in the proposed rule is contrary to the President's policy in E.O. 14003 of rescinding restrictions on agencies' discretion to enter into clean-record settlements in disputed cases. The organization stated that its members have observed that agencies are often guilty of giving incomplete information to background investigators in a fashion skewed to denigrate targeted employees, selectively including information adverse to subject employees while materially omitting the employees' counterarguments (in particular, if the employee challenged agency actions against them as unlawful discrimination, unlawful EEO reprisal or whistleblower reprisal, etc.). The organization added that efficiency of the Federal service is not promoted by “giving license to continuing retaliation through providing negatively skewed information to future employers; to the contrary, doing so represents further retaliatory action in violation of 5 U.S.C. 2302(b)(1, 8, 9, 10) and other statutes.” The second organization concurred with this organization's comments.

OPM's reminder to agencies concerning the need to be truthful to Federal investigators is in connection with background investigations. Accordingly, agencies may not agree to withhold information about an individual's departure from the agency. The requirement for agencies to be truthful applies also to suitability determinations and other inquiries related to vetting for personnel security. This reminder does not give license to retaliate. In fact, the requirement to be truthful to background investigators necessarily includes that the agency makes full disclosure of information provided by the employee. Full disclosure is inherent in speaking truthfully.

A commenter wrote that it seems inconsistent to withhold agency discretion when it comes to divulging the particulars of clean-record separation agreements to future Federal employers. The commenter asserted that if the agency is mandated to “adhere to the principles of promoting high standards of integrity and accountability within the Federal workforce,” then it should be the agency's responsibility to balance that standard against the value of a conflict resolved. The commenter raised a concern that an investigator will likely be adversely influenced by the revelation of the particulars of a clean-record agreement. The individual characterized this as a form of “backdoor” retaliation that can have a “chilling effect” for employees. The commenter offered that a middle ground would be to permit agencies to include language that stipulates what will be divulged and what will not to any future Federal investigator. The commenter added that if this avenue is not widely used, it is a further negotiation point that will help parties reach resolution.

While a different commenter also stated support for the rescission of the clean-record prohibition, this individual suggested that the final rule should clearly allow clean-record agreements to stipulate what will be divulged and what will not be divulged to any future Federal investigator. The commenter offered an example: “if a settlement agreement, legally approved by a federal judge, calls for permanent and irrevocable removal of a specific personnel action, that action should never be represented by either party as ever having legitimately occurred.” The commenter added that “clean” should truly mean “clean” to preserve and avoid undermining the integrity of such agreements.

OPM will not adopt the suggestion that the final rule address any stipulation in clean-record agreements as to what will be divulged and what will not be divulged to any future Federal investigator. As stated earlier, agencies must provide truthful information about the circumstances of an individual's departure from the agency during the course of investigations. These investigations include those conducted for the purpose of determining suitability or eligibility for sensitive national security positions. OPM will defer to agency officials, including agency counsel, with regard to negotiating the specific terms of settlement agreements necessary to enable the agency to fulfill any disclosure obligation based on the particular facts .

Additionally, if an agency wishes to maintain an agency policy that prohibits clean-record agreements, the agency is reminded that E.O. 14003 directs heads of affected agencies to, as soon as practicable, suspend, revise, or rescind actions arising from E.O. 13839. Given that E.O. 13839 was the sole reason for the clean-records prohibition and E.O. 13839 has been rescinded by E.O. 14003, it would be contrary to the spirit and intent of E.O. 14003 for an agency to broadly prohibit clean-record agreements. Instead, OPM strongly encourages each agency to make determinations about clean records on a case-by-case basis.

A Federal agency expressed concern that the proposed rescission of the settlement agreement provisions competes with the agency's ability to comply with 5 CFR part 731.101 regarding suitability determinations; Security Executive Agent Directive 4, which requires a risk assessment to make an informed national security determination; and Trusted Workforce 2.0 fundamentals such as improving policies, procedures, and automation to streamline and enhance the government's posture against national security risks. The agency requested that OPM address the interplay of these parts of the CFR, and the potential impact that this change may have on the ability of agencies to make fully informed decisions relative to risk. Additionally, one commenter disagreed with OPM's rescission of the settlement agreement provision. This commenter asserted that the November 2020 amendments were intended to promote the highest standards of integrity and accountability in the Federal workforce and were implemented to aid in records being preserved so that agencies can make appropriate and informed decisions regarding qualifications such as fitness and suitability for future employment.

OPM disagrees that the rescission of §§ 432.108, 752.104, 752.203(h), 752.407, and 752.607 will compete with an agency's ability to comply with 5 CFR 731.101, Security Executive Agent Directive 4, and Trusted Workforce 2.0 fundamentals as asserted by the agency. The agency did not provide an explanation or examples of how the clean-record prohibition impacted the agency's ability to make fully informed decisions relative to risk. Without additional information, it is difficult to address the agency's concern in more detail. Sections 432.108, 752.104, 752.203(h), 752.407 and 752.607 were in effect for less than two months at the time E.O. 14003 rescinded E.O. 13839. Consistent with the requirements that existed before and during the implementation of the clean-record prohibitions, when negotiating settlement agreement terms that involve disclosure of information about the employee, agency officials should consult with agency legal counsel.

In conclusion, OPM believes that the prohibition of clean-record agreements hampers agencies' ability to resolve informal and formal complaints at an early stage and with minimal costs to the agency. The removal of the prohibition on clean-record agreements will allow agencies discretion to resolve informal and formal complaints and settle administrative challenges in a manner that balances the needs of the agency and fairness to the employee. In doing so, agencies should still adhere to the principles of promoting high standards of integrity and accountability within the Federal workforce.

This subpart addresses mandatory procedures for addressing retaliation by supervisors for whistleblowing.

An organization emphasized its support of the requirements for whistleblower protection. This organization elaborated on its longstanding advocacy in favor of “robust protection for whistleblowers, which necessarily includes disciplinary consequences for those federal managers who abuse their authority to retaliate against whistleblowers in defiance of federal law.” The organization expressed that thus it supported the policy behind 5 U.S.C. 7515 and 5 CFR part 752, subpart A, and encouraged OPM to continue in its enforcement. A second organization concurred with this commenter.

This section describes the adverse actions covered and defines key terms used throughout the subchapter. Section 752.101 includes a definition for the term “business day.” Given the revocation of E.O. 13839 and under its congressionally granted authority to regulate part 752, OPM rescinds § 752.101, and given that there is no other use for the definition of “business day” in subpart A, in this rule OPM revises the regulation at § 752.101(b) to remove the definition of “Business day”.

We received no comments on this section.

This section establishes the procedures to be utilized for actions taken under this subpart. With the rescission of E.O. 13839 and under its congressionally granted authority to regulate chapter 75 adverse actions, OPM rescinds the requirement at § 752.103(d)(3) that, to the extent practicable, an agency should issue the decision on a proposed removal under this subpart within 15 business days of the conclusion of the employee's opportunity to respond under paragraph (d)(1) of this section. All comments related to the rescission of the requirement that an agency issue the decision on a proposed removal within 15 business days of the conclusion of the employee's opportunity to respond are addressed here in the Supplementary Information for the change at § 752.103, where the change appears first.

Some commenters including national unions voiced support regarding the removal of the requirement that an agency must issue the decision on a proposed removal within 15 days of the conclusion of the employee's opportunity to respond. Two national unions commented that the elimination of the 15-day requirement to issue a decision on a proposal was warranted and that the deadline imposed by the November 2020 amendment was arbitrary. In fact, a national union commented that the requirement to issue a decision on a proposal within 15 business days “is an arbitrary and unnecessarily short time frame and that it might not allow thoughtful well-reasoned disciplinary decisions.” Further, another national union stated that there was no statutory antecedent for this requirement and this mandate was counterproductive because it forced agencies to rush in issuing decisions “which in turn weakened the agency's action upon review.” This national union commented that agencies must engage in reasoned decision making and that a “decision reached merely to comply with an arbitrary deadline is itself arbitrary and capricious and subject to reversal.” Additionally, this national union observed that every proposed adverse action is different and some proposed adverse actions require more time than others for full consideration of the employee's response and the underlying facts. In further support of this rescission, the national union commented by providing agencies added flexibility the proposed change will “lead to the more efficient and effective resolution of employment disputes.”

Two organizations, one concurring with the other's comment submissions, objected to the 15-day restriction on decisional periods for adverse actions and pronounced that these restrictions resulted in inferior rushed disciplinary decisions on incomplete information by agencies. Moreover, these organizations remarked that E.O. 14003 and OPM's rule “restor[ed] agencies' reasonable discretion” and “bring[s] to a close a misguided policy.”

While some commenters voiced support, other commenters disagreed with this change to the regulations. Two management associations erroneously stated that OPM only made a change regarding the 15-day requirement to issue the decision on a proposed removal in “a very narrow section of Part 752 focused on whistleblower retaliation.” These commenters also remarked that establishing dissimilar, seemingly arbitrary timelines across government appears “contrary to the policy of the United States government, per E.O. 14003.” The organizations commented that the proposed rule does not change the 15-day requirement in other portions of the rule. In response to this incorrect assertion, we note that OPM proposed to rescind the 15-day requirement to issue a decision on a proposal at §§ 752.404(g)(3) and 752.604(g)(3), not only at § 752.103(d)(3).

These management associations also raised concerns that removing the 15-day requirement “without offering any guidance on a minimum or maximum acceptable timeline . . . agencies may continue practices that include abuse of administrative leave and failing to make timely decisions.” Further, these commenters said that lacking OPM guidance, including the final regulations for the Administrative Leave Act of 2016, agencies will be enabled in such practices. The management associations remarked that taxpayers rather than employees are “ultimately paying for the delayed decision.”

We disagree with these comments. Regarding the commenters' objection that no OPM guidance is provided to agencies as to when a decision must be issued, as we stated in the proposed rule, it is good practice for agency deciding officials to resolve proposed removals promptly. However, some actions present complications that warrant a longer period of time to achieve careful crafting of the final decision. In executing due diligence concerning the employee's performance or alleged misconduct, agencies have an opportunity to obtain all of the available relevant information to make an informed and defensible decision. This latitude allows agencies to continue fact-finding in a deliberate fashion and avoids a rush to judgment. It is not in the Government's best interests to force decisions to be completed on an arbitrary timetable that may not allow for the deciding official to prepare a thoughtful, well-reasoned decision document as this may lead to prolonged litigation resulting in unnecessary cost to the taxpayer. Further, with respect to the commenters' concern regarding agencies' use of administrative leave and failing to make timely decisions, we note that while administrative leave may be appropriate under various circumstances, administrative leave is an option that should be used sparingly. We provide several alternatives for an agency to use during the advance notice period, depending on the facts and circumstances of the situation. OPM regulations at § 752.404(b)(3)(i) through (iv) explain that “[u]nder ordinary circumstances, an employee whose removal or suspension, including indefinite suspension, has been proposed will remain in a duty status in his or her regular position”. In the rare circumstances where the employee's continued presence in the workplace during the notice period may present “a threat to the employee or others” or involve other extenuating circumstances as outlined in the regulation, the agency may choose one or a combination of options: assigning the employee to other duties, granting leave or otherwise carrying the individual in an appropriate leave status, shortening the notice period when an agency invokes the “crime provision”, and, finally, placing the employee in a paid nonduty status for such time as is necessary to effect the action. Until OPM has published the final regulation for 5 U.S.C. 6329b and after the conclusion of the agency implementation period, these provisions may be used. After publication of 5 U.S.C. 6329b, and the subsequent agency implementation period, an agency may place the employee in a notice leave status when applicable.

The language in this section establishes the same requirements that are detailed in §§ 432.108, 752.203, 752.407, and 752.607, Settlement agreements. This final rule removes § 752.104, Settlement agreements. Please see the discussion in §  432.108 regarding the rescission of OPM requirements related to settlement agreements.

This subpart addresses the procedural requirements for suspensions of 14 days or less for covered employees.

Consistent with the rescission of E.O. 13839 and under its congressionally granted authority to regulate part 752, OPM amends this section to revise the section heading to “Standard for action” and rescinds paragraphs (c) through (f). These paragraphs address the use of progressive discipline; appropriate comparators as the agency evaluates a potential disciplinary action; consideration of, among other factors, an employee's disciplinary record and past work record; and the requirement that a suspension should not be a substitute for removal in circumstances in which removal would be appropriate.

All comments related to the rescission of the requirement for the use of progressive discipline; appropriate comparators as the agency evaluates a potential disciplinary action; consideration of, among other factors, an employee's disciplinary record and past work record; and the requirement that a suspension should not be a substitute for removal in circumstances in which removal would be appropriate are addressed here in the Supplementary Information for the change at § 752.202 where the change appears first.

Several commenters, including national unions, voiced support for rescission of this section in its entirety, and additional commenters endorsed removal of various portions. In fact, one national union declared that “OPM is correct to remove these provisions as they existed solely to encourage agencies to remove employees from federal service, which is not a purpose expressed or countenanced by the controlling statutes.”

This final rule removes from regulation the provision regarding the use of progressive discipline. Describing the November 2020 regulations as “ill-advised provisions discouraging the use of progressive discipline,” a national union commended the removal of this regulatory language and lauded progressive discipline as a “well- established and equitable way to ensure employees are treated fairly.”

In non-support of the rescission, a management association articulated that in their view the November 2020 amendments provided advantages for management. One member of the association declared this section as the best part of the former rule. The management association went on to state that “eliminating the `requirement' for progressive discipline and codifying that elimination was a huge management benefit.” The association further noted that the amendments of November 2020 also formalized the requirement for a penalty to be “`within the bounds of tolerable reasonableness,' instead of a cookie-cutter progression.” The management association noted that there has never been a legal requirement for progressive discipline or rehabilitation and viewed progressive discipline as something that “has grown within most agencies to the point of being a roadblock in many instances to removals or suspensions that would promote the efficiency of the service because there was no prior discipline. They also commented that “[f]ar too many union contracts require management to utilize progressive discipline, which eliminates a key management flexibility when dealing with conduct/performance issues.” Further, the management association asserted that “[r]estricting an arbitrator's ability to mitigate reasonable penalties was good for management.” The management association also viewed the November 2020 rules favorably because they “took the penalty out of the bargaining arena” and remarked that “[i]t never belonged there in the first place as 5 U.S.C. 7106 (a)(2) reserved the right (authority) to discipline employees to management without bargaining.”

OPM will not make any modifications based on these comments. OPM disagrees with the management association's assessment that the requirement in regulation as to agencies' optional use of progressive discipline was beneficial to management and that the use of progressive discipline is a “roadblock” to suspensions and removals. As we have previously said each action stands on its own footing and demands careful consideration of facts, circumstances, context, and nuance. OPM reminds agencies to calibrate discipline to the unique facts and circumstances of each case, which is consistent with the flexibility afforded agencies under the “efficiency of the service” standard for imposing discipline contained in the CSRA. Proposing and deciding officials should consult with the agency counsel and the agency's human resources office to determine the most appropriate penalty. In regard to the commenter's statement that there is no requirement in law for progressive discipline and progressive discipline provisions in union contracts eliminate a management flexibility, bargaining proposals involving penalty determinations such as mandatory use of progressive discipline impermissibly interfere with the exercise of a statutory management right to discipline employees, and are thus contrary to law.

Moreover, the final rule at § 752.202 rescinds the prior regulations' reliance on the test pronounced in Miskill v. Social Security Administration, 863 F.3d 1379 (Fed. Cir. 2017). A national union applauded OPM's rescission and described the provisions of OPM's November 2020 regulations as “ill-advised provisions” and “as narrowly defining appropriate comparators”. This national union concurred with OPM removing this language and allowing agencies to be guided by court precedent on this issue.

However, some management associations disagreed with the rescission saying, “The proposed changes result in guidance to agencies and supervisors that is far less clear and actionable.” These commenters questioned whether human resources specialists clearly understand the Miskill test and would be able to apply it “the same way as peers in other agencies.” They protested that “in the name of flexibility OPM simply continues its history of abdicating its own responsibility” to provide guidance that is “coherent and useful” despite responsibility for providing government-wide guidance for a vast, robust statutory scheme with over 40 years of Congressional amendments and as many years of accompanying case law. One of these management associations emphasized that absent additional, specific OPM guidance the system is not clear at all and will continue to provoke confusion in the employing agencies. To illustrate their point of view, the management association stated they are seeking additional educational resources to help understand regulations, guidance, case law and other resources to understand the Civil Service. They asserted that “OPM should not rely on associations like ours to fill in the vast knowledge gaps that it and agencies are leaving.”

OPM will not make any revisions based on these comments. The adoption of the Miskill test reinforced the key principle that each case stands on its own factual and contextual footing. Federal human resources specialists involved in advising management and agency counsel routinely apply case law with overwhelmingly successful outcomes for agencies. We do not believe the Miskill case is an exception to this consistent track record in support of efficient and effective disciplinary actions taken by agencies. OPM believes that agencies can be sufficiently guided by Miskill and other applicable case law without a regulatory amendment. Note that OPM provides guidance to agencies through its accountability toolkit, which includes some of the key practices and lessons learned as discussed in the GAO report. OPM frequently communicates these strategies and approaches to the Federal community through the OPM website and ongoing outreach to agencies.

Furthermore, the final rule removes from regulation the standard applied by the MSPB in Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981). This rule specifically rescinds the requirement that among other factors, agencies should consider an employee's disciplinary record and past work record, including all applicable prior misconduct, when taking an action under this subpart.

Two organizations, one concurring with the other's comment submission, declared that although they previously had supported placing the Douglas factor analysis in OPM regulations, these organizations understood the necessity to comply with E.O. 14003 to rescind this provision. They applauded OPM's recognition of the importance of the Douglas standard and expressed the hope that OPM will consider future rulemaking activity to re-include the Douglas factor analysis in its regulations when the occasion permits. OPM will not commit to or rule out any specific future rulemaking activity at this time.

In another rescission to the final rule at § 752.202, OPM rescinds the requirement that a suspension may not be a substitute for removal. In support of this rescission, a national union commented that the November 2020 amendments to OPM's regulations “contain ill-advised provisions” and commended the rescission of those requirements which “promot[ed] removals over suspensions.” In its endorsement of OPM's rescission of this provision, the national union asserted that supervisors should exercise their judgment regarding appropriate penalties after their consideration of all of the pertinent factors and should not be compelled to impose removals over other disciplinary alternatives.

Another national union supported this rescission in §§ 752.202 and 752.403 with comments which were identical to each other and are addressed here. This national union expounded that “disproportionate and unreasonable penalties do not promote the efficiency of the service. The primary purpose of disciplinary actions is to correct misconduct—not to serve as a punishment.” Additionally, the national union posited that removal should be limited for “egregious misconduct” or when it is evident that rehabilitation cannot be achieved. The national union opined that each removal results in lost time, effort, and funds invested in training that employee and loss of institutional knowledge, which may be irreplaceable. In further comment, this national union stated, “It is remarkably inefficient for an agency to remove an employee regardless of the offense.” Also with respect to penalties, the national union said that agencies are “best served” by taking action with the minimum penalty necessary to correct the misconduct which improves employee morale and minimizes the disruption to the agency. This national union affirmed, “OPM's proposed changes are consistent with the CSRA and will better protect the due process rights of federal employees.”

While some commenters agreed with the rescission concerning the requirement that a suspension should not be a substitute for removal, a management association disagreed with this change. This management association questioned, “Why keep an unacceptable employee?” and observed that if the issue is conduct, “a new position isn't going to `fix' the underlying problem.” This commenter stated that it understood that “the rescission of E.O. 13839 led to rescinding this section.”

OPM will not make any changes based on this comment. If agencies implement a penalty other than removal, when it is appropriate, it does not follow that the employee is reassigned to a new position. The concept that suspension should not be a substitute for removal in circumstances in which removal would be appropriate is a straightforward principle that OPM believes agencies can apply without regulation. If a penalty is disproportionate to the alleged violation or is unreasonable, it is subject to being reduced or reversed even when the charges are sustained. Although OPM has decided to remove the provision regarding a suspension should not be a substitute for removal and defer to agency management in selecting an appropriate penalty, OPM reiterates that imposing a suspension when removal is appropriate may adversely impact employee morale and productivity and hamper the agency's ability to achieve its mission and promote effective stewardship. OPM reminds agencies that supervisors are responsible for ensuring that a disciplinary penalty is fair, reasonable, and appropriate to the facts and circumstances. In doing so, supervisors will address misconduct in a manner that has the greatest potential to avert harm to the efficiency of the service.

This section discusses the requirements for a proposal notice issued under this subpart. The language in this section establishes the same requirements for settlement agreements in the final rule that are detailed in §§ 432.108, 752.104, 752.407, and 752.607. Given the revocation of E.O. 13839 and under OPM's congressionally granted authority to regulate part 752, this final rule removes the requirement set forth in § 752.203(h). Please see the discussion in § 432.108 regarding the rescission of OPM requirements related to settlement agreements.

This subpart addresses the procedural requirements for removals, suspensions for more than 14 days, including indefinite suspensions, reductions in grade, reductions in pay, and furloughs of 30 days or less for covered employees.

This section discusses adverse actions and employees covered under this subpart. The National Defense Authorization Act (NDAA) for Fiscal Year 2017 added MSPB appeal rights for National Guard technicians for certain adverse actions taken against them when they are not in a military pay status or when the issue does not involve fitness for duty in the reserve component.

In § 752.401(b), the final rule adds an exclusion for an action taken against a technician in the National Guard as provided in section 709(f)(4) of title 32, United States Code, and in § 752.401(d) removes from the list of employees excluded from coverage of this subpart “a technician in the National Guard described in section 8337(h)(1) of title 5, United States Code, who is employed under section 709(a) of title 32, United States Code.”

An organization supported the extension of civil service protections to National Guard technicians under Public Law 114-328, and stated that, accordingly, the organization supported OPM's inclusion of an implementing regulation for that statute in this proposed rule. Another organization concurred with this organization's comments.

This section defines key terms used throughout the subchapter. With the rescission of E.O. 13839 and given that there is no other use for the definition of “business day” in subpart D, the final rule revises the regulation at § 752.402 to remove the definition of “Business day”.

We did not receive any comments for this section.

Given the rescission of E.O. 13839 and under OPM's congressionally granted authority to regulate part 752, as with the final rule changes for § 752.202, the final regulatory changes to this section revise the heading to “Standard for action” and, as with §§ 752.202(c), 752.202(d), 752.202(e), and 752.202(f), rescind §§ 752.403(c), 752.403(d), 752.403(e), and 752.403(f). Please see the discussion in § 752.202.

Section 752.404(b) discusses the requirements for a notice of proposed action issued under this subpart. In particular, under OPM's authority to regulate 5 CFR part 752, the final rule rescinds the requirements in § 752.404(b)(1) that, to the extent an agency in its sole and exclusive discretion deems practicable, agencies should limit written notice of adverse actions taken under this subpart to the 30 days prescribed in 5 U.S.C. 7513(b)(1), as well as the requirement that any notice period greater than 30 days must be reported to OPM. All comments related to the rescission of the requirement that an agency limit written notice of adverse actions to 30 days, as well as the reporting requirement to OPM, are addressed here in the Supplementary Information for the change at § 752.404, where the change appears first.

Two organizations, one concurring with the other's comment submissions, endorsed the rescission of this regulatory requirement. The organizations asserted that the restrictions on response periods for adverse actions had an adverse impact on an employee's ability to respond appropriately and impaired their “due process rights,” as well as resulted in substandard and hurried decisions based on incomplete information.

Two national unions expressed their overall support for rescinding the requirements to issue a decision within 30 days of the end of the employee's response period. One union further commented that this language wrongly took a negotiable topic, notice periods, off the bargaining table and the reporting requirement would chill agencies from providing notice beyond 30 days. Another national union agreed with OPM's assessment that there are many legitimate reasons to provide a longer notice period. They commented that the reporting requirement was also “inefficient, inasmuch as it placed an additional and unnecessary burden on OPM and on agencies seeking to take an adverse action.”

Additionally, this section discusses the requirements for an agency decision issued under § 752.404(g). Under OPM's authority to regulate 5 CFR part 752, the final rule rescinds the requirement at § 752.404(g)(3) that, to the extent practicable, an agency should issue the decision on a proposed removal under this subpart within 15 business days of the conclusion of the employee's opportunity to respond. All comments related to the rescission of the § 752.404(g)(3) requirement for agencies to issue decisions, to the extent practicable, within 15 business days of the conclusion of the employee's opportunity to respond under this subpart are addressed in the Supplementary Information for the change at § 752.103, where the change appears first.

The language in this section establishes the same requirement that is detailed in the final rule changes at §§ 432.108, 752.104, 752.203, and 752.607, Settlement agreements. This final rule removes § 752.407, Settlement agreements. Please see the discussion regarding settlement agreements in § 432.108 above.

This subpart addresses the procedural requirements for suspensions for more than 14 days and removals from the civil service as set forth in 5 U.S.C. 7542.

This section defines key terms used throughout the subchapter. Section 752.602 includes a definition for the term “business day.” With the rescission of E.O. 13839 and given that there is no other use for “business day” in subpart F, OPM revises the regulation at § 752.602 to remove the definition of “Business day”.

We did not receive any comments for this section.

Given the rescission of E.O. 13839 and under its congressionally granted authority to regulate part 752, as with the final rule changes for §§ 752.202 and 752.403, the final regulatory change to § 752.603 revises the heading to “Standard for action” and as with §§ 752.202(c), 752.202(d), 752.202(e), 752.202(f), 752.403(c), 752.403(d), 752.403(e), and 752.403(f), OPM rescinds §§ 752.603(c), 752.603(d), 752.603(e), and 752.603(f). Please see the discussion in § 752.202.

This section discusses requirements for a notice of proposed action. Due to the revocation of E.O. 13839 and under its congressionally granted authority to regulate 5 CFR part 752, as with the rule changes made for §§ 752.103(d)(3) and 752.404(b)(1), and for the same reasons, OPM rescinds the language at § 752.604(b)(1) that requires, to the extent an agency in its sole and exclusive discretion deems practicable, that agencies should limit a written notice of an adverse action to the 30 days prescribed in section 7543(b)(1) of title 5, United States Code. As well, in this rule OPM removes the language in § 752.604(b)(1) that requires that advance notices of greater than 30 days must be reported to OPM.

Additionally, OPM rescinds § 752.604(g)(3), which requires that an agency issue the decision on a proposed removal, to the extent practicable, within 15 business days of the conclusion of the employee's opportunity to respond. As with the discussion concerning the 15-day requirement for issuance of decisions in §§ 752.103(d)(3) and 752.404(g)(3), while recognizing it is good practice for agency deciding officials to resolve proposed removals promptly, some actions present complexities that necessitate a longer period of time to prepare the final decision. All comments related to the procedural requirements are addressed in the Supplementary Information for the changes at §§ 752.103 and 752.404, where the changes appear first.

The language in this section establishes the same requirements that are detailed in §§ 432.108, 752.104, 752.203 and 752.407, Settlement agreements. This final rule removes § 752.607, Settlement agreements. Please see the discussion at § 432.108.

OPM is issuing this final rule to implement requirements of E.O. 14003 and new statutory requirements for procedural and appeal rights for dual status National Guard technicians for certain adverse actions. E.O. 14003 requires OPM to rescind portions of the OPM final rule published at 85 FR 65940 which implemented certain requirements of E.O. 13839. In addition, section 512(a)(1)(C) of the 2017 NDAA provides MSPB appeal rights under 5 U.S.C. 7511, 7512, and 7513 to dual status National Guard technicians for certain adverse actions.

OPM believes that portions of the final rule which became effective on November 16, 2020, and which implemented certain requirements of E.O. 13839, are inconsistent with the current policy of the United States to protect, empower and rebuild the career Federal workforce as well as its current policy to encourage employee organizing and collective bargaining. The revisions implement applicable statutory mandates and provide agencies the necessary tools and flexibility to address matters related to unacceptable performance and misconduct or other behavior contrary to the efficiency of the service by Federal employees when they arise, consistent with the policies of E.O. 14003.

Given that the November 16, 2020, regulations OPM rescinds in this rule were in effect only for a brief period before E.O. 14003 was issued on January 22, 2021, agencies had limited opportunity to implement changes under the regulations. With the issuance of E.O. 14003, OPM discontinued collecting agency data on performance-based actions, adverse actions, and settlement agreements as was required by Section 5 of E.O. 13839. OPM does not otherwise collect agency data about the matters covered by the November 2020 regulatory amendments that OPM rescinds in this rule (namely, the timing and frequency of probationary period expiration notifications; the timing and nature of performance assistance for employees who have demonstrated unacceptable performance; penalty determination guidelines; advance notice and decision notice timeframes for adverse action; and settlement agreements). For these reasons, OPM has virtually no data on the extent to which adverse actions were pursued under the regulations for rescission here. This rule will relieve agencies of the administrative burden of implementing the November 2020 regulatory amendments to the extent that agencies did not already have such policies and practices in place. Out of an abundance of caution, we clarify that OPM still is requiring that agencies submit to it arbitration awards taken under 5 U.S.C. 4303 or 5 U.S.C. 7512 so that OPM can efficiently carry out its authority under 5 U.S.C. 7703(d) to seek judicial review of any arbitration award that the Director of OPM determines is erroneous and would have a substantial impact on civil service law, rule, or regulation affecting personnel management that will have a substantial impact on a civil service law, rule, regulation, or policy directive.

This final rule will affect the operations of over 80 Federal agencies—ranging from cabinet-level departments to small independent agencies. Regarding implementation of E.O. 14003 requirements, we estimate that this rule will require individuals employed by these agencies to revise and rescind policies and procedures to implement certain portions of the OPM final rule published at 85 FR 65940 to the extent agencies have not already done so. Section 3(e) of E.O. 14003 directs heads of agencies whose practices were covered by E.O. 13839 to review and identify existing agency actions related to or arising from E.O. 13839 and “as soon as practicable, suspend, revise, or publish for notice and comment proposed rules suspending, revising, or rescinding, the actions identified in the review” described in Section 3(e). On March 5, 2021, OPM issued “Guidance for Implementation of Executive Order 14003—Protecting the Federal Workforce” to heads of agencies. In this guidance, OPM advised that “agencies should not delay in implementing the requirements of Section 3(e) of E.O. 14003 as it relates to any changes to agency policies made as a result of OPM's regulations.” Therefore, some agencies may not need to make any updates to agency policies as a result of this revised OPM rule. For the purpose of this cost analysis, the assumed average salary rate of Federal employees performing this work will be the rate in 2022 for GS-14, step 5, from the Washington, DC, locality pay table ($143,064 annual locality rate and $68.55 hourly locality rate). We assume that the total dollar value of labor, which includes wages, benefits, and overhead, is equal to 200 percent of the wage rate, resulting in an assumed labor cost of $137.10 per hour.

In order to comply with the regulatory changes in this final rule, affected agencies will need to review the rule and update their policies and procedures. We estimate that, in the first year following publication of the final rule, this will require an average of 200 hours of work by employees with an average hourly cost of $137.10. This would result in estimated costs in that first year of implementation of about $27,420 per agency, and about $2,193,600 in total government-wide. We do not believe this final rule will substantially increase the ongoing administrative costs to agencies.

Regarding the portion of the rule regarding appeal rights under 5 U.S.C. 7511, 7512, and 7513 for dual status National Guard technicians for certain adverse actions, this only impacts the Army National Guard and Air National Guard for dual status National Guard technicians that are covered by policies of the National Guard Bureau. Since this portion of the final rule reflects statutory changes in the 2017 NDAA which have been effective for several years, these statutory requirements should already be applied by the National Guard notwithstanding any regulatory changes by OPM. However, for the purpose of this cost analysis, the assumed average salary rate of Federal employees performing this work at the National Guard Bureau will be the rate in 2022 for GS-14, step 5, from the Washington, DC, locality pay table ($143,064 annual locality rate and $68.55 hourly locality rate). We assume that the total dollar value of labor, which includes wages, benefits, and overhead, is equal to 200 percent of the wage rate, resulting in an assumed labor cost of $137.10 per hour. In order to comply with the regulatory changes in this rule, the affected agency will need to review the rule and update its policies and procedures. We estimate that, in the first year following publication of the final rule, this will require an average of 40 hours of work by employees with an average hourly cost of $137.10. This would result in estimated costs in that first year of implementation of about $5,484 for the impacted agency. We do not believe this rule will substantially increase the ongoing administrative costs to the National Guard.

Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). In accordance with the provisions of Executive Order 12866, this final rule was reviewed by the Office of Management and Budget as a significant, but not economically significant rule.

The Director of the Office of Personnel Management certifies that this final rule will not have a significant economic impact on a substantial number of small entities.

This regulation will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, it is determined that this final rule does not have sufficient federalism implications to warrant preparation of a Federalism Assessment.

This regulation meets the applicable standard set forth in Executive Order 12988.

This final rule will not result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (known as the Congressional Review Act or CRA) (5 U.S.C. 801 et seq. ) requires rules to be submitted to Congress before taking effect. OPM will submit to Congress and the Comptroller General of the United States a report regarding the issuance of this final rule before its effective date, as required by 5 U.S.C. 801. The Office of Information and Regulatory Affairs in the Office of Management and Budget has determined that this final rule is not a major rule as defined by the CRA (5 U.S.C. 804). The Office of Information and Regulatory Affairs in the Office of Management and Budget has determined that this final rule is not a major rule as defined by the CRA (5 U.S.C. 804).

This regulatory action is not expected to impose any additional reporting or recordkeeping requirements under the Paperwork Reduction Act.

Accordingly, for the reasons stated in the preamble, OPM amends 5 CFR parts 315, 432, and 752 as follows:

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Deutsche Aircraft GmbH (Type Certificate Previously Held by 328 Support Services GmbH; AvCraft Aerospace GmbH; Fairchild Dornier GmbH; Dornier Luftfahrt GmbH) Model 328-100 and -300 airplanes. The NPRM published in the Federal Register on June 21, 2022 (87 FR 36775). The NPRM was prompted by AD 2022-0050, dated March 22, 2022, issued by EASA, which is the Technical Agent for the Member States of the European Union (referred to after this as the MCAI). The MCAI states that lithium batteries installed in the PED are a potential risk of an in-flight fire in the flight deck stowage boxes. EASA issued Continuing Airworthiness Review Item (CARI) 25-09, requesting type certificate holders to investigate the potential risk of in-flight fire of lithium batteries installed in PED. The investigation was conducted on the effect of a PED fire on a critical system component, and the development of smoke in the flight deck. Deutsche Aircraft GmbH Model 328-100 and -300 airplanes have the stowages for PED located in the proximity of oxygen lines, oxygen mask boxes, and other critical system components in the flight deck. The safety analysis was performed at all possible locations, and concluded that in case of a PED fire, the panels of the side console forward stowage may not be able to withstand the released heat, and the oxygen supply line can be damaged. This condition, if not corrected, could result in an oxygen fed fire in the flight deck, possibly resulting in an uncontrolled fire.

In the NPRM, the FAA proposed to require installing a placard and stowing the fire gloves on the LH flap door of the flight deck step; and installing the placards on the LH and RH flight deck stowage boxes. The NPRM also proposed to require revising the operator's existing AFM to include emergency procedures, as specified in EASA AD 2022-0050. The FAA is issuing this AD to address the unsafe condition on these products.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2022-0688.

The FAA received no comments on the NPRM or on the determination of the cost to the public.

This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA reviewed the relevant data, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on this product. Except for minor editorial changes, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

EASA AD 2022-0050 specifies procedures for installing a “FIRE GLOVES” pictogram placard and stowing the fire gloves on the LH flap door of the flight deck step; and installing the “NO PED STOWAGE” placards on the LH and RH flight deck stowage boxes. EASA AD 2022-0050 also specifies revising the operator's existing AFM to include emergency procedures to address smoke including PED smoke removal.

This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 35 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect 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.

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Will not affect intrastate aviation in Alaska, and

(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

I. Introduction

In a document published in the Federal Register of May 8, 2020 (85 FR 27340), we announced that we filed a color additive petition (CAP 0C0316) submitted on behalf of GNT by Hogan Lovells US LLP, 555 13th St. NW, Washington, DC 20004. The petition proposed to amend the color additive regulations in § 73.530 Spirulina extract (21 CFR 73.530) to provide for the expanded safe use of spirulina extract, prepared from the filtered aqueous extraction of the dried biomass of A. platensis, as a color additive in alcoholic beverages with less than 20 percent alcohol-by-volume content (the proposed scope was subsequently amended to include beer), non-alcoholic beverages, condiments and sauces, dips, dairy product alternatives (identified as non-dairy yogurt alternatives, non-dairy frozen desserts, and non-dairy puddings), salad dressings, and seasoning mixes (unheated) at levels consistent with good manufacturing practice (GMP).

Spirulina extract is approved under § 73.530 for coloring confections (including candy and chewing gum), frostings, ice cream and frozen desserts, dessert coatings and toppings, beverage mixes and powders, yogurts, custards, puddings, cottage cheese, gelatin, breadcrumbs, ready-to-eat cereals (excluding extruded cereals), coating formulations applied to dietary supplement tablets and capsules, at levels consistent with GMP, and to seasonally color the shells of hard-boiled eggs, except that it may not be used to color foods for which standards of identity have been issued under section 401 of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 341), unless the use of the added color is authorized by such standards. Spirulina extract also is approved under 21 CFR 73.1530 for coloring coating formulations applied to drug tablets and capsules, at levels consistent with GMP. Spirulina extract is exempt from certification under section 721(c) of the FD&C Act (21 U.S.C. 379e(c)) because we previously determined that certification was not necessary for the protection of public health (78 FR 49117 at 49119, August 13, 2013).

The spirulina extract that is the subject of this final rule is a blue-colored powder or liquid prepared by the water extraction and filtration of the dried biomass of A. platensis (also known as Spirulina platensis ), an edible blue-green cyanobacterium. The extraction and filtration remove oil, oil soluble substances, and fibers. The color additive contains phycocyanins as the principal coloring components, and consists of proteins, carbohydrates, and minerals. Based on data and information provided in the petition on the identity, physical and chemical properties, manufacturing process, and composition of the color additive, we have determined that the color additive meets the specifications for spirulina extract in § 73.530 (Refs. 1 and 2).

Spirulina-based ingredients have been the subject of four generally recognized as safe (GRAS) notices (GRNs) filed by FDA (78 FR 49117 at 49118). Under section 201(s) of the FD&C Act (21 U.S.C. 321(s)), a substance is GRAS if it is generally recognized, among experts qualified by scientific training and experience to evaluate its safety, as having been adequately shown through scientific procedures (or, in the case of a substance used in food before January 1, 1958, through either scientific procedures or experience based on common use in food) to be safe under the conditions of its intended use. Under section 201(s) of the FD&C Act, a substance that is GRAS for a particular use in food is not a food additive and may lawfully be utilized for that use without our review and approval. There is no GRAS exemption, however, to the definition of color additive in section 201(t) of the FD&C Act. Therefore, we must approve the intended use of a color additive in food before it is marketed; otherwise, the food containing the color additive is adulterated under section 402(c) of the FD&C Act (21 U.S.C. 342(c)). Importantly, in our response to these GRNs, we indicated that if the substance imparts color to the food, it may be subject to regulation as a color additive (78 FR 49117 at 49118).

Under section 721(b)(4) of the FD&C Act, a color additive cannot be listed for a particular use unless the data and information available to FDA establish that the color additive is safe for that use. Our color additive regulations in 21 CFR 70.3(i) define “safe” to mean that there is convincing evidence that establishes with reasonable certainty that no harm will result from the intended use of the color additive.

To establish with reasonable certainty that a color additive intended for use in food is not harmful under its intended conditions of use, we consider the projected human dietary exposure to the color additive, the additive's toxicological data, and other relevant information (such as published literature) available to us. We compare the estimated daily intake (EDI) of the color additive from all sources to an acceptable daily intake (ADI) level established by toxicological data. The EDI is calculated based on the amount of the color additive proposed for use in particular foods or drugs and on data regarding the amount consumed from all sources of the color additive. We commonly use the EDI for the 90th percentile consumer of a color additive as a measure of high chronic dietary exposure.

During our safety review of this petition (CAP 0C0316), we considered the estimated dietary exposure to spirulina extract and c-phycocyanin (the main coloring component) from the petitioned uses of the subject color additive. GNT provided the eaters-only 90th percentile estimates of dietary exposure for spirulina extract and c-phycocyanin for the petitioned uses for the U.S. population aged 2 years and older, and various subpopulations. Upon further clarification of the proposed uses to include beer (Ref. 3), we amended GNT's dietary exposure estimate to include additional food codes for beer (Ref. 2). We estimated that the petitioned uses of the subject color additive would result in dietary exposures to spirulina extract and c-phycocyanins of 31 grams/person/day (g/p/d) and 0.6 g/p/d, respectively, at the 90th percentile for the U.S. population aged 2 years and older (Ref. 2). GNT cited a cumulative estimated daily intake (CEDI) to phycocyanins of 1.14 g/p/d (Ref. 2). This value has been cited in previous reviews of spirulina extract as an upper bound CEDI for phycocyanins from GRAS-notified uses of spirulina extract in food and is based on uses described in GRN 000424 (see 80 FR 50762 at 50763, August 21, 2015, and Ref. 4). GRN 000424 pertains to the use of a spirulina-based substance similar in chemical composition to the subject color additive but with a higher phycocyanin content and included use in all foods (except infant formula and foods under the U.S. Department of Agriculture's jurisdiction) at levels consistent with GMP (Refs. 2 and 4).

The highest 90th percentile estimate of dietary exposure to phycocyanins (0.7 g/p/d for adults 19 years or older) from the petitioned uses is below the upper-bound CEDI of 1.14 g/p/d phycocyanins from the notified GRAS uses described in GRN 000424 and from the uses approved under § 73.530 (Ref. 2). GNT indicated that, given the high phycocyanin content of the spirulina-based substance described in GRN 000424 (42 to 47 percent) relative to the subject color additive (2 percent) and the multiple uses of spirulina extract addressed previously in GRN 000424, the cited upper-bound CEDI encompasses current and previously petitioned uses of spirulina extract. Based on the data and information reviewed by FDA, the petitioned uses of spirulina extract are not expected to increase the estimated CEDI to phycocyanins in the U.S. diet (Ref. 2).

To support the safety of the petitioned uses of spirulina extract, GNT referenced the safety determinations made by FDA for CAPs 2C0293 (78 FR 49117), 2C0297 (79 FR 20095, April 11, 2014), 4C0300 (80 FR 50762), and 6C0306 (82 FR 30731, July 3, 2017). GNT also conducted an updated search of the peer-reviewed scientific literature on spirulina and submitted the published studies that they identified as being relevant to their petition. GNT concluded that these publications did not reveal any significant new toxicological effects and should not alter the conclusions of FDA's previous reviews on spirulina. Of the publications submitted by the petitioner, some studies had been previously reviewed by FDA. Our review of the new information, the information submitted in previously reviewed publications, as well as our own independent literature search and review of spirulina and phycocyanins, did not reveal any safety concerns relating to spirulina or phycocyanin, nor did it identify any information or data that would change the ADI of 1.0-1.8 g/p/d for phycocyanins (Refs. 5 and 6).

In our most recent evaluation of the use of spirulina extract as a color additive to seasonally color hard-boiled shell eggs (82 FR 30731), we did not have any concerns regarding the safety of the use of spirulina extract and its principal coloring components, phycocyanins. Considering all available safety information and the estimated dietary exposure to phycocyanins from the petitioned uses, we conclude that the petitioned use of spirulina extract as a color additive is safe (Ref. 5).

We discussed the potential allergenicity of spirulina phycocyanins in our final rule for the use of spirulina extract as a color additive in candy and chewing gum (78 FR 49117 at 49119). We stated that, based on our review of a comparison of the known amino acid sequences of phycocyanins with the sequences of known protein allergens, there is a low probability that the spirulina phycocyanins are protein allergens. Therefore, we concluded that spirulina phycocyanins present an insignificant allergy risk to consumers of the color additive. Additionally, after a review of the literature relevant to the potential allergenicity of spirulina, we have determined that spirulina extract as a color additive for both current uses and the petitioned uses in food still presents an insignificant allergy risk for the general population (Ref. 6). We are not aware of any new information that would cause us to change this conclusion.

We received one comment on the petition. The comment asked us to clarify that we interpret “malted beverages” to apply to “what is commonly known in the alcoholic beverage industry and amongst the general public as `beer.'” GNT included a table of proposed uses in the petition. Under the alcoholic beverages category, GNT included ciders, cocktails and liqueur, ready-to-drink ( e.g., daiquiris, schnapps) with less than 20 percent alcohol-by-volume content, malt beverages, wine, and wine coolers. In the proposed amendment to § 73.530 Spirulina extract, GNT proposed that the intended uses include alcoholic beverages (with less than 20 percent alcohol-by-volume content, excluding beer).

As we noted in section I of this document, GNT subsequently expanded the scope of its petition to include beer. Therefore, we consider beer to be within the scope of the amended regulation as an alcoholic beverage with less than 20 percent alcohol-by-volume content.

Based on the data and information in the petition and other relevant material, we conclude that the petitioned use of spirulina extract as a color additive in alcoholic beverages with less than 20 percent alcohol-by-volume content, non-alcoholic beverages, condiments and sauces, dips, dairy product alternatives (identified as non-dairy yogurt alternatives, non-dairy frozen desserts, and non-dairy puddings), salad dressings, and seasoning mixes (unheated) is safe. We further conclude that the color additive will achieve its intended technical effect and is suitable for the petitioned use. Consequently, we are amending the color additive regulations in 21 CFR part 73 as set forth in this document. In addition, based upon the factors listed in 21 CFR 71.20(b), we continue to conclude that certification of spirulina extract is not necessary for the protection of public health.

In accordance with § 71.15 (21 CFR 71.15), the petition and the documents that we considered and relied upon in reaching our decision to approve the petition will be made available for public disclosure (see FOR FURTHER INFORMATION CONTACT ). As provided in § 71.15, we will delete from the documents any materials that are not available for public disclosure.

We previously considered the environmental effects of this rule, as stated in the May 8, 2020, Federal Register notice of petition for CAP 0C0316 (85 FR 27340). We stated that we had determined, under 21 CFR 25.32(k), that this action “is of a type that does not individually or cumulatively have a significant effect on the human environment” such that neither an environmental assessment nor an environmental impact statement is required. We have not received any new information or comments that would affect our previous determination.

This final rule contains no collection of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.

Our review of this petition was limited to section 721 of the FD&C Act. This final rule is not a statement regarding compliance with other sections of the FD&C Act. For example, section 301(ll) of the FD&C Act (21 U.S.C. 331(ll)) prohibits the introduction or delivery for introduction into interstate commerce of any food that contains a drug approved under section 505 of the FD&C Act (21 U.S.C. 355), a biological product licensed under section 351 of the Public Health Service Act (42 U.S.C. 262), or a drug or biological product for which substantial clinical investigations have been instituted and their existence has been made public, unless one of the exemptions in section 301(ll)(1) through (4) of the FD&C Act applies. In our review of this petition, we did not consider whether section 301(ll) of the FD&C Act or any of its exemptions apply to food containing this color additive. Accordingly, this final rule should not be construed to be a statement that a food containing this color additive, if introduced or delivered for introduction into interstate commerce, would not violate section 301(ll) of the FD&C Act. Furthermore, this language is included in all color additive final rules that pertain to food and therefore should not be construed to be a statement of the likelihood that section 301(ll) of the FD&C Act applies.

This rule is effective as shown in the DATES section, except as to any provisions that may be stayed by the filing of proper objections. If you will be adversely affected by one or more provisions of this regulation, you may file with the Dockets Management Staff (see ADDRESSES ) either electronic or written objections. You must separately number each objection, and within each numbered objection you must specify with particularity the provision(s) to which you object, and the grounds for your objection. Within each numbered objection, you must specifically state whether you are requesting a hearing on the particular provision that you specify in that numbered objection. If you do not request a hearing for any particular objection, you waive the right to a hearing on that objection. If you request a hearing, your objection must include a detailed description and analysis of the specific factual information you intend to present in support of the objection in the event that a hearing is held. If you do not include such a description and analysis for any particular objection, you waive the right to a hearing on the objection.

Any objections received in response to the regulation may be seen in the Dockets Management Staff between 9 a.m. and 4 p.m., Monday through Friday, and will be posted to the docket at https://www.regulations.gov. We will publish notice of the objections that we have received or lack thereof in the Federal Register .

The following references are on display at the Dockets Management Staff (see ADDRESSES ) and are available for viewing by interested persons between 9 a.m. and 4 p.m., Monday through Friday; they are also available electronically at https://www.regulations.gov. FDA has verified the website addresses, as of the date this document publishes in the Federal Register , but websites are subject to change over time.

Therefore, under the Federal Food, Drug, and Cosmetic Act and under the authority delegated to the Commissioner of the Food and Drugs, 21 CFR part 73 is amended as follows:

On August 17, 2022 (87 FR 50593), EPA published a notice of proposed rulemaking (NPRM) for the State of West Virginia. In the NPRM, EPA proposed approval of a formal SIP revision submitted on May 11, 2021. The formal SIP revision updates West Virginia's incorporation by reference of the NAAQS promulgated by EPA and found at 40 Code of Federal Regulations (CFR) part 50 and ambient air monitoring reference methods and equivalent methods promulgated by EPA found at 40 CFR part 53 into West Virginia's legislative rules.

West Virginia Department of Environmental Protection (WVDEP) has historically chosen to incorporate by reference the Federal NAAQS, found at 40 CFR part 50, and the associated Federal ambient air monitoring reference methods and equivalent methods for these NAAQS found at 40 CFR part 53. When incorporating by reference these Federal regulations, WVDEP has specified that it is incorporating by reference these regulations as they existed on a certain date. The incorporation by reference of the NAAQS that is currently approved in the West Virginia SIP incorporates by reference 40 CFR parts 50 and 53 as they existed on June 1, 2019. West Virginia's May 11, 2021 SIP revision updates the State's incorporation by reference of the primary and secondary NAAQS and the ambient air monitoring reference and equivalent methods, found in 40 CFR parts 50 and 53, respectively, as of June 1, 2020. Since the last West Virginia incorporation by reference of June 1, 2019, EPA: (1) designated one new equivalent method for measuring concentrations of ozone in ambient air; (2) designated one new reference method for measuring concentrations of nitrogen dioxide; (3) amended an existing reference method for measuring particulate matter (PM 10 ) in ambient air; (4) designated on new reference method for measuring concentrations of sulfur dioxide in ambient air; (5) designated one new equivalent method for measuring concentrations of nitrogen dioxide in ambient air. See 84 FR 44299 (August 23, 2019), 84 FR 50833 (September 26, 2019), 85 FR 5958 (February 2, 2020), 85 FR 27221 (May 7, 2020).

The amendments to the legislative rule include changes to section 45-8-1 (General), 45-8-2 (Definitions), and 45-8-3 (Adoption of Standards). The amendments update West Virginia's incorporation by reference of the primary and secondary NAAQS and the ambient air monitoring reference and equivalent methods from June 1, 2019, to June 1, 2020. West Virginia is incorporating the Federal rules in 40 CFR parts 50 and 53 as they existed on June 1, 2020 into 45-8-1 and 45-8-3. The amendment to section 45-8-2 changes the wording of the definition of both the CAA and “Secretary.”

No comments were received on the August 17, 2022 NPRM.

EPA is approving the West Virginia SIP revision of May 11, 2021, updating the incorporation by reference of EPA's NAAQS and associated ambient air monitoring reference methods and equivalent methods.

In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of 45CSR8—Ambient Air Quality Standards, as effective June 1, 2021, as discussed in Section II. of this preamble. EPA has made, and will continue to make, these materials generally available through https://www.regulations.gov and at the EPA Region III Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 1

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 9, 2023. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action.

This action, approving the West Virginia SIP revision updating its incorporation by reference of EPA's NAAQS and associated ambient air monitoring reference methods and equivalent methods, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

For the reasons stated in the preamble, the EPA amends 40 CFR part 52 as follows:

Preamble acronyms and abbreviations. Throughout this document the use of “we,” “us,” or “our” is intended to refer to the EPA. We use multiple acronyms and terms in this preamble. While this list may not be exhaustive, to ease the reading of this preamble and for reference purposes, the EPA defines the following terms and acronyms here:

Background information. On November 19, 2021, the EPA proposed revisions to the Paint Stripping and Miscellaneous Surface Coating Operations at Area Sources NESHAP based on our technology review (86 FR 66130). In this action, we are finalizing decisions and revisions for the rule. We summarize some of the more significant comments we timely received regarding the proposed rule and provide our responses in this preamble. A summary of all other public comments on the proposal and the EPA's responses to those comments is available in Summary of Public Comments and Responses for the Final Area Source Surface Coating and Paint Stripping Rule, Docket ID No. EPA-HQ-OAR-2021-0016. A “track changes” version of the regulatory language that incorporates the changes in this action is available in the docket.

Organization of this document. The information in this preamble is organized as follows:

Regulated entities. Categories and entities potentially regulated by this action are shown in Table 1 of this preamble.

Table 1 of this preamble is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be affected by the final action for the source categories listed. To determine whether your facility is affected, you should examine the applicability criteria in the appropriate NESHAP. If you have any questions regarding the applicability of any aspect of this NESHAP, please contact the appropriate person listed in the preceding FOR FURTHER INFORMATION CONTACT section of this preamble.

In addition to being available in the docket, an electronic copy of this final action will also be available on the internet. Following signature by the EPA Administrator, the EPA will post a copy of this final action at: https://www.epa.gov/stationary-sources-air-pollution/paint-stripping-and-miscellaneous-surface-coating-operations. Following publication in the Federal Register, the EPA will post the Federal Register version and key technical documents at this same website.

Under Clean Air Act (CAA) section 307(b)(1), judicial review of this final action is available only by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit (the court) by January 9, 2023. Under CAA section 307(b)(2), the requirements established by this final rule may not be challenged separately in any civil or criminal proceedings brought by the EPA to enforce the requirements.

Section 307(d)(7)(B) of the CAA further provides that only an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment (including any public hearing) may be raised during judicial review. This section also provides a mechanism for the EPA to reconsider the rule if the person raising an objection can demonstrate to the Administrator that it was impracticable to raise such objection within the period for public comment or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule. Any person seeking to make such a demonstration should submit a Petition for Reconsideration to the Office of the Administrator, U.S. EPA, Room 3000, WJC South Building, 1200 Pennsylvania Ave. NW, Washington, DC 20460, with a copy to both the person(s) listed in the preceding FOR FURTHER INFORMATION CONTACT section, and the Associate General Counsel for the Air and Radiation Law Office, Office of General Counsel (Mail Code 2344A), U.S. EPA, 1200 Pennsylvania Ave. NW, Washington, DC 20460.

The statutory authority for this action is provided by sections 112 and 301 of the CAA, as amended (42 U.S.C. 7401 et seq. ). Section 112(d)(6) requires the EPA to review standards promulgated under CAA section 112(d) and revise them “as necessary (taking into account developments in practices, processes, and control technologies)” no less often than every 8 years following promulgation of those standards. This is referred to as a “technology review” and is required for all standards established under CAA section 112(d), including generally available control technology (GACT) standards that apply to area sources. This action constitutes the CAA section 112(d)(6) technology review for the Paint Stripping and Miscellaneous Surface Coating Operations at Area Sources NESHAP.

Several additional CAA sections are relevant to this action as they specifically address regulation of hazardous air pollutant emissions from area sources. Collectively, CAA sections 112(c)(3), (d)(5), and (k)(3) are the basis of the Area Source Program under the Urban Air Toxics Strategy, which provides the framework for regulation of area sources under CAA section 112.

Section 112(k)(3)(B) of the CAA required the EPA to identify at least 30 HAP that posed the greatest potential health threat in urban areas with a primary goal of achieving a 75 percent reduction in cancer incidence attributable to HAP emitted from stationary sources. As discussed in the Integrated Urban Air Toxics Strategy (64 FR 38706, 38715, July 19, 1999), the EPA identified 30 HAP emitted from area sources that pose the greatest potential health threat in urban areas, and these HAP are commonly referred to as the “30 urban HAP.”

Section 112(c)(3), in turn, required the 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 were subject to regulation. The EPA implemented these requirements through the Integrated Urban Air Toxics Strategy by identifying and setting standards for categories of area sources including the Paint Stripping and Miscellaneous Surface Coating Operations at Area Sources source categories that are addressed in this action.

CAA section 112(d)(5) provides that, for area source categories, in lieu of setting maximum achievable control technology (MACT) standards (which are generally required for major source categories), the EPA may elect to promulgate standards or requirements for area sources “which provide for the use of generally available control technologies or management practices [GACT] by such sources to reduce emissions of hazardous air pollutants.” In developing such standards, the EPA evaluates the control technologies and management practices that reduce HAP emissions that are generally available for each area source category. Consistent with the legislative history, we can consider costs and economic impacts in determining what constitutes GACT.

GACT standards were set for the Paint Stripping and Miscellaneous Surface Coating Operations at Area Sources source categories in 2008. As noted earlier in this document, this final action presents the required CAA 112(d)(6) technology review for those source categories.

The EPA promulgated the Paint Stripping and Miscellaneous Surface Coating Operations at Area Sources NESHAP on January 9, 2008 (73 FR 1738). The standards are codified at 40 CFR part 63, subpart HHHHHH. Technical corrections were promulgated on February 13, 2008 (73 FR 8408). The paint stripping and miscellaneous surface coating industry consists of facilities engaged in paint stripping using MeCl, and/or engaged in coating of miscellaneous parts and/or products made of metal or plastic, or combinations of metal and plastic, or motor vehicle or mobile equipment refinishing. The NESHAP's title refers to a single set of emission standards that addresses three source categories: (1) Paint Stripping; (2) Miscellaneous Surface Coating; and (3) Motor Vehicle and Mobile Equipment Surface Coating. All facilities in this source category are area sources. The source categories covered by the GACT standards currently include approximately 40,000 facilities.

The NESHAP defines a “coating” as a material spray-applied to a substrate for decorative, protective, or functional purposes. For the purposes of this subpart, coating does not include the following materials: (1) decorative, protective, or functional materials that consist only of protective oils for metal, acids, bases, or any combination of these substances; (2) paper film or plastic film that may be pre-coated with an adhesive by the film manufacturer; (3) adhesives, sealants, maskants, or caulking materials; (4) temporary protective coatings, lubricants, or surface preparation materials; (5) in-mold coatings that are spray-applied in the manufacture of reinforced plastic composite parts. (40 CFR 63.11180.)

The NESHAP does not apply to paint stripping or surface coating operations that are specifically covered under another area source NESHAP and does not apply to paint stripping or surface coating operations that meet any of the following:

• Paint stripping or surface coating performed on-site at installations owned or operated by the Armed Forces of the United States (including the Coast Guard and the National Guard of any such state), the National Aeronautics and Space Administration, or the National Nuclear Security Administration.

• Paint stripping or surface coating of military munitions manufactured by or for the Armed Forces of the United States (including the Coast Guard and the National Guard of any such state) or equipment directly and exclusively used for the purposes of transporting military munitions.

• Paint stripping or surface coating performed by individuals on their personal vehicles, possessions, or property, either as a hobby or for maintenance of their personal vehicles, possessions, or property. The NESHAP also does not apply when these operations are performed by individuals for others without compensation. However, an individual who spray-applies surface coating to more than two motor vehicles or pieces of mobile equipment per year is subject to the requirements in this subpart that pertain to motor vehicle and mobile equipment surface coating regardless of whether compensation is received.

• Paint stripping or surface coating for research and laboratory activities, for quality control activities, or for activities that are covered under another area source NESHAP.

The primary HAP emitted from paint stripping operations is the MeCl contained in paint stripper formulations. The primary source of the MeCl emissions in the paint stripping source category comes from evaporative losses during the use and storage of MeCl-containing paint strippers.

All sources conducting paint stripping involving the use of MeCl must implement management practice standards that reduce emissions of MeCl by minimizing evaporative losses of MeCl. In addition to the management practices, sources that use more than one ton of MeCl per year must develop and implement a MeCl minimization plan consisting of a written plan with the criteria to evaluate the necessity of MeCl in the stripping operations and management techniques to minimize MeCl emissions when it is needed in the paint stripping operation.

The MeCl minimization plan evaluation criteria specify only using a MeCl-containing paint stripper when an alternative on-site stripping method or material is incapable of accomplishing the work as determined by the operator. Alternative methods to reduce MeCl usage may include: (1) non- or low-MeCl-containing chemical strippers; (2) mechanical stripping; (3) abrasive blasting (including dry or wet media); or (4) thermal and cryogenic decomposition.

The management practices required to be contained in the plan include optimizing stripper application conditions, reducing exposure of stripper to the air, and practicing proper storage and disposal of materials containing MeCl. Sources are required to submit the plan to the appropriate air authority, keep a written copy of the plan on site, and post a placard or sign outlining the evaluation criteria and management techniques in each area where MeCl-containing paint stripping operations occur. They are also required to review the plan annually and update it based on the experiences of the previous year or the availability of new methods of stripping, and to keep a record of the review and changes made to the plan on file. Sources must maintain copies of the specified records for a period of at least 5 years after the date of each record.

The primary HAP emitted from surface coating operations are compounds of cadmium, chromium, lead, manganese, and nickel from heavy metals contained in coatings. The target HAP compounds are emitted as the coatings are atomized during spray application. A substantial fraction of coating that is atomized does not reach the part and becomes what is termed “overspray.” The fraction that becomes overspray depends on many variables, but two of the most important are the type of spray equipment being used and the skill of the painter. Some overspray lands on surfaces of the spray booth and the masking paper that is usually placed around the surface being sprayed, but the rest of the overspray is drawn into the spray booth exhaust system. If the spray booth has filters, most of the overspray is captured by the filters; otherwise, it is exhausted to the atmosphere.

All motor vehicle and mobile equipment surface coating operations and those miscellaneous surface coating operations that spray-apply coatings containing the target HAP must apply the coatings with a high-volume, low-pressure (HVLP) spray gun, electrostatic spray gun, airless spray gun, air-assisted airless spray gun, or a spray gun demonstrated to be equal in transfer efficiency to an HVLP spray gun. All spray-applied coatings must be applied in a prep station or spray booth. For motor vehicle and mobile equipment surface coating, prep stations and spray booths that are large enough to hold a complete vehicle must have four complete side walls or curtains and a complete roof. For motor vehicle and mobile equipment subassemblies and for miscellaneous surface coating, coatings must be spray-applied in a booth with a full roof and at least three walls or side curtains. Openings are allowed in the sidewalls and roof of booths used for miscellaneous surface coating to allow for parts conveyors, if needed. The exhaust from the prep station or spray booth must be fitted with filters demonstrated to achieve at least 98 percent capture efficiency of paint overspray.

Additionally, sources are required to demonstrate that (1) all painters that spray-apply coatings are certified as having completed operator training to improve coating transfer efficiency and minimize overspray and (2) no spray gun cleaning is performed by spraying solvent through the gun creating an atomized mist ( i.e., spray guns must be cleaned in an enclosed spray gun cleaner or by cleaning the disassembled gun parts by hand). Each painter must be certified as having completed classroom and hands-on training in the proper selection, mixing, and application of coatings, and must complete refresher training at least once every 5 years. The initial and refresher training must address the following topics:

• 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.

• Spray technique for different types of coatings to improve transfer efficiency and minimize coating 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.

• Environmental compliance with the requirements of this subpart.

Additional detail on the paint stripping and miscellaneous surface coating operations at area sources source categories and NESHAP requirements are provided in the proposal preamble (86 FR 66130, November 19, 2021).

On November 19, 2021, the EPA published a proposed rule in the Federal Register for the Paint Stripping and Miscellaneous Surface Coating Operations at Area Sources NESHAP, 40 CFR part 63, subpart HHHHHH, that took into consideration the technology review analyses. Based on our technology review, we did not identify any cost-effective developments in practices, processes, or control technologies for the three source categories addressed by the NESHAP. We proposed to amend electronic reporting provisions, simplify the petition for exemption process, clarify requirements addressing emissions during periods of SSM, and make miscellaneous clarifying and technical corrections.

This action finalizes the EPA's determinations pursuant to the technology review provisions of CAA section 112 for the three source categories addressed by the Paint Stripping and Miscellaneous Surface Coating Operations at Area Sources NESHAP. This action finalizes other changes to the NESHAP, by adding electronic reporting provisions, simplifying the petition for exemption process, clarifying requirements for addressing emissions during periods of SSM, and making miscellaneous clarifying and technical corrections.

We determined that there are no developments in practices, processes, and control technologies that warrant revisions to the GACT standards for these source categories. Therefore, we are not amending any emission standards pursuant to our review under CAA section 112(d)(6). We are, however, amending other provisions of the NESHAP, to add requirements for electronic submission of reports, simplify the petition for exemption process, clarify requirements addressing SSM, and make miscellaneous clarifying and technical corrections.

We are finalizing the proposed amendments to the Area Source Paint Stripping and Miscellaneous Surface Coating NESHAP to remove and revise provisions related to SSM. In its 2008 decision in Sierra Club v. EPA, 551 F.3d 1019 (D.C. Cir. 2008), the United States Court of Appeals for the District of Columbia Circuit vacated portions of two provisions in the EPA's CAA section 112 regulations governing the emissions of HAP during periods of SSM. Specifically, the court vacated the SSM exemption contained in 40 CFR 63.6(f)(1) and 40 CFR 63.6(h)(1), holding that under section 302(k) of the CAA, emissions standards or limitations must be continuous in nature and that the SSM exemption violates the CAA's requirement that some section 112 standards apply continuously. With the issuance of the mandate in Sierra Club v. EPA, 40 CFR 63.6(f)(1) and (h)(1) are null and void. The EPA amended 40 CFR 63.6(f)(1) and (h)(1)) on March 11, 2021, to reflect the court order and correct the CFR to remove the SSM exemption. We are eliminating any cross-references to the vacated provisions in the regulatory language, including Table 1 to subpart HHHHHH of part 63 (General Provisions applicability table). We have also revised Table 1 to subpart HHHHHH of part 63 in several respects as is explained in more detail here. For example, we have eliminated the incorporation of the General Provisions' requirement that a source develop an SSM plan. We have also revised certain recordkeeping and reporting that is related to the SSM exemption as described in detail in the proposed rule and summarized again here. As detailed in section III.B.3 of the November 19, 2021, proposal preamble, we are adding general duty regulatory text at 40 CFR 63.11173(h) that reflects the general duty to minimize emissions without differentiating between normal operations, startup and shutdown, and malfunction events in describing the general duty. We are also revising 40 CFR 63.11173(h) to require that the standards apply at all times, consistent with the court decision in Sierra Club v. EPA.

In establishing the standards in this rule, the EPA has taken into account startup and shutdown periods and, for the reasons explained here, has not established alternate standards for those periods. Startups and shutdowns are part of normal operations for the paint stripping and surface coating operations at area sources. Paint stripping and surface coating operations inherently involve frequent startup and shutdown while carrying out normal duties, and the emission standards were developed to control emissions in these situations. We have no data indicating that emissions are different during startup or shutdown than during other normal operations. We have determined that facilities in these source categories can meet the applicable emission standards in this NESHAP at all times, including periods of startup and shutdown. The legal rationale and detailed changes for SSM periods that we are finalizing here are set forth in the November 19, 2021, preamble to the proposed rule. See 86 FR 66141-42.

Further, the EPA is not finalizing standards for malfunctions. Periods of startup, normal operations, and shutdown are all predictable and routine aspects of a source's operations. Malfunctions, in contrast, are neither predictable nor routine. Instead, they are, by definition, sudden, infrequent, and not reasonably preventable failures of emissions control, process, or monitoring equipment. (40 CFR 63.2) (Definition of malfunction). As discussed in section III.B.3 of the November 19, 2021, proposal preamble, the EPA interprets CAA section 112 as not requiring emissions that occur during periods of malfunction to be factored into development of CAA section 112 standards. This reading has been upheld as reasonable by the court in U.S. Sugar Corp. v. EPA, 830 F.3d 579, 606-610 (2016). For these source categories, it is unlikely that a malfunction would result in a violation of the standards, and no comments were submitted that would suggest otherwise. Refer to section III.B.3 of the November 19, 2021, proposal preamble for further discussion of the EPA's rationale for the decision not to set standards for malfunctions, as well as a discussion of the actions a facility could take in the unlikely event that a facility fails to comply with the standards as a result of a malfunction event.

These rules also finalize, as proposed, revisions to several other NESHAP requirements. We describe the revisions that apply to all the affected source categories in the following paragraphs.

The EPA is finalizing the proposal that owners and operators of paint stripping and surface coating facilities submit electronic copies of initial notifications required in 40 CFR 63.9(b) and 63.11175(a), notifications of compliance status required in 40 CFR 63.9(h) and 63.11175(b), the annual notification of changes report required in 40 CFR 63.11176(a), and the report required in 40 CFR 63.11176(b) through the EPA's Central Data Exchange (CDX) using the Compliance and Emissions Data Reporting Interface (CEDRI). For further information regarding the electronic data submission process, please refer to the memorandum titled Electronic Reporting for New Source Performance Standards (NSPS) and National Emission Standards for Hazardous Air Pollutants (NESHAP) Rules, available in the docket for this action. No specific form is necessary for the initial notifications required in 40 CFR 63.9(b) and 63.11175(a), notifications of compliance status required in 40 CFR 63.9(h) and 63.11175(b), the annual notification of changes report required in 40 CFR 63.11176(a), or the report required in 40 CFR 63.11176(b). The notifications will be required to be submitted via CEDRI in portable document format (PDF) files. More information is available in the November 19, 2021, proposal preamble (86 FR 66130).

We are making plain language clarifications and revisions to better reflect regulatory intent. We also are making other changes, including updating references to equivalent test methods, making technical and editorial revisions, incorporation by reference (IBR) of alternative test methods, and simplifying the petition for exemption process. Our analyses and changes related to these issues are discussed in the following sections.

The EPA is clarifying in this preamble that the surface coating and paint stripping occurring at area sources of certain types of military equipment, such as military submarines (as opposed to those used for scientific research, for example) and military tanks is potentially subject to 40 CFR part 63, subpart HHHHHH, unless the surface coating or paint stripping is performed on site at installations owned or operated by the Armed Forces of the United States (including the Coast Guard and the National Guard of any such state), the National Aeronautics and Space Administration, or the National Nuclear Security Administration. Surface coating of this type of military equipment at original equipment manufacturers or offsite at a contractor's facility is not covered by the provisions in 40 CFR 63.11169(d)(1) and is subject to the requirements of 40 CFR part 63, subpart HHHHHH.

The EPA is amending the definition of “target HAP containing coating” in 40 CFR 63.11180 to clarify that compliance with the definition is based on the HAP content of the coating as applied, not on the HAP content of the coating components as purchased from the coating supplier.

The EPA is amending the definition of “spray-applied coating operations” in 40 CFR 63.11180 to clarify that the allowance to use spray guns outside of a spray booth is based on the volume of the spray gun paint cup liner and not the volume of the paint cup, in those spray guns that use a disposable cup liner.

The EPA is also amending the definition of “spray-applied coating operations” in 40 CFR 63.11180 to clarify that repeatedly refilling and reusing a 3.0 fluid ounce cup or cup liner or using multiple 3.0 fluid ounce cup liners to complete a single spray-applied coating operation as a means of avoiding rule applicability will be considered an attempt to circumvent the requirements of subpart HHHHHH. The EPA accordingly reserves the right to bring enforcement actions against any person whose action equates to rule circumvention.

The EPA is removing references to Occupational Safety and Health Administration (OSHA)-defined carcinogens as specified in 29 CFR 1910.1200(d)(4) because 29 CFR 1910.1200(d)(4) has been amended and no longer defines which compounds are carcinogens. We are replacing these references to 29 CFR 1910.1200(d)(4) with a list of those target HAP that must be counted if they are present at 0.1 percent by mass or greater in the definition of “target HAP containing coating” in 40 CFR 63.11180. All other target HAP must be counted if they are present at 1.0 percent or greater by mass.

The EPA is removing the definition of “non-HAP solvent” from 40 CFR 63.11180 because there are no requirements to use non-HAP solvents and the definition has no other use in the rule.

The EPA is updating the spray booth filter test method in 40 CFR 63.11173, which was previously incorporated by reference, to the most recent American Society of Heating, Refrigerating, and Air-Conditioning Engineers (ASHRAE) method. Section 63.11173 referenced 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.” This method was retired in January 2009 and replaced by ANSI/ASHRAE Standard 52.2-2017 Method of Testing General Ventilation Air-Cleaning Devices for Removal Efficiency by Particle Size. The EPA is also adding a reference to EPA Method 319—Determination of Filtration Efficiency for Paint Overspray Arrestors (Appendix A to 40 CFR part 63) to 40 CFR 63.11173 as an alternative to ANSI/ASHRAE Standard 52.2-2017. This is the same method referenced in the NESHAP for Aerospace Manufacturing and Rework (40 CFR part 63, subpart GG) to test paint spray booth filters used to meet the requirements to limit hexavalent chromium emissions.

The EPA is amending 40 CFR 63.11170 to introduce a simplified petition for exemption process for motor vehicle or mobile equipment surface coating operations that do not spray-apply any coatings that contain the target HAP. Previously, all such sources were subject to the NESHAP, unless they demonstrated to the satisfaction of the Administrator that they do not spray-apply any coatings that contain the target HAP. The rule is being revised to allow sources to submit notification to the Administrator, as a simplified alternative to the petition for exemption process, that they do not spray-apply any coatings that contain the target HAP. Such sources will still be required to retain records that describe the coatings that are spray-applied in order to support the notification, but that information does not need to be reported to the Administrator. The Administrator maintains the authority to verify records retained on site, including whether the notification of exemption was sufficiently demonstrated. Sources may still petition for exemption using the existing process if they want confirmation of exemption.

The amendments to the NESHAP being promulgated in this action are effective on November 10, 2022. For affected sources, the compliance date for the amendments being promulgated in this action is May 9, 2023. All affected facilities will continue to meet the current requirements of 40 CFR part 63, subpart HHHHHH, until the applicable compliance date of the amended rule. The EPA selected these compliance dates based on experience with similar industries, and the EPA's detailed justification for the selected compliance dates is included in the preamble to the proposed rule (86 FR 66142).

For each issue, this section provides a description of what we proposed and what we are finalizing for the issue, the EPA's rationale for the final decisions and amendments, and a summary of key comments and responses. For all comments not discussed in this preamble, comment summaries and the EPA's responses can be found in the comment summary and response document available in the docket.

In performing a technology review of paint stripping and miscellaneous surface coating operations, the EPA consulted sources of data that included: the EPA's ECHO database; the EPA's RACT/BACT/LAER Clearinghouse; publicly available state air permit databases; regulatory actions promulgated subsequent to the Paint Stripping and Miscellaneous Surface Coating at Area Sources NESHAP; regional and state regulations and operating permits; site visit reports; and industry information. The EPA's review is described in a memorandum (“technology review memorandum”) titled Technology Review for Paint Stripping and Miscellaneous Surface Coating Operations at Area Sources, available in the docket for this action. Based on our review, we did not identify any developments in practices, processes, or control technologies for the paint stripping and miscellaneous surface coating operations at area sources source categories, and, therefore, we did not propose any changes to the emission standards under CAA section 112(d)(6). A summary of the EPA's findings in conducting the technology review of paint stripping and miscellaneous surface coating operations was included in the preamble to the proposed action (86 FR 66137).

We are making no changes to the conclusions of the technology review and are finalizing the results of the technology review for the paint stripping and miscellaneous surface coating operations at area sources source categories as proposed.

We received three comments objecting to our decision not to strengthen GACT standards based on a conclusion that there have been no technology developments.

Comment: One commenter stated that the EPA's proposed decision to not strengthen the GACT standards by requiring the use of only coatings that do not contain the target HAP conflicts with the EPA's own recognition that surface coating manufacturers have modified their products to produce new formulas that are free of target HAP. The commenter claimed that the EPA has failed to rationally explain why it does not require widespread use of these nontoxic formulas.

Response: The EPA notes that the current rule requirements have been very successful in moving this source category to HAP-free coatings and achieving significant reductions of metal HAP emissions. In many cases industry has succeeded in its goal of identifying HAP-free alternatives, but there are also many cases where that goal was not achievable. For example, hexavalent chromium-containing primers are particularly important to the U.S. aerospace industry. Interior surfaces and parts of the aircraft must be protected from corrosion for the life of the aircraft because they cannot be accessed once the aircraft is assembled. For this reason, the aerospace industry is moving very slowly to replace hexavalent chromium-containing primers. Our current approach of requiring controls and work practices has been and will continue to be successful in reducing emissions, while still allowing this industry to produce coated products that meet the required specifications.

Comment: One commenter asserted that the EPA's proposed decision to not strengthen the GACT standards by requiring the use of only coatings that do not contain the target HAP is arbitrary because it invokes widespread technological improvement as a reason not to strengthen the standards. The commenters said that the EPA is obligated to require the use of GACT under 42 U.S.C. 7412(d)(5) and MACT under 42 U.S.C. 7412(d)(2). Under both provisions, the commenter stated, the EPA is required to adopt technologies in use by industry to reduce emissions as emission standards and cannot leave it up to the industry to decide whether to employ these proven technologies.

Response: The EPA affirmed in the original NESHAP that reformulation to HAP-free alternatives was a viable approach to emissions reduction. Coatings manufacturers have found many viable substitutions, but this is not universally true for all of the source categories subject to the NESHAP. The data the EPA has referenced indicating widespread reductions in the use of target HAP is specific to manufacturers of automotive surface coatings and does not cover the other source categories that are subject to the NESHAP. While the automotive industry has seen considerable improvements in surface coating technologies that avoid use of the target HAP in original equipment manufacture, automotive refinishers must sometimes use coatings that contain target HAP. In addition, other industries such as aerospace are still reliant on certain performance characteristics that can currently only be met through use of target HAP-containing coatings. Though viable alternatives are actively being researched through programs such as the Department of Defense's ASETSDefense program, suitable alternatives have not been found for many applications that rely on target HAP ( e.g., formulations that include hexavalent chromium compounds for corrosion resistance). The EPA is not required to set MACT standards for area sources, as under 112(d)(5) the EPA may elect to provide GACT standards instead for area sources, which it has done.

Comment: One commenter declared that the EPA's proposed decision to not strengthen the GACT standards by requiring the use of only coatings that do not contain the target HAP is arbitrary because the EPA dismisses the experience of states that have required stronger protections to feasibly reduce emissions. The commenter stated that while the EPA appears to assert that these protections would not reduce emissions, logic and the states' experience contradict that claim. The commenter also said that the EPA appears to claim that it should not adopt these stronger protections because it already considered them, but 42 U.S.C. 7412(d)(6) broadly requires the EPA to consider developments, and the EPA must explain why these developments should not be adopted. The commenter pointed out that in the 2007 rulemaking on which the EPA relies, the EPA speculated that a requirement to use formulas without hexavalent chromium or cadmium “could” lead to business closures due to a lack of alternative formulas with sufficient corrosion protection, but those requirements have now been in place for over a decade, and the EPA itself acknowledges that target-HAP free formulas are now more readily available. The commenter asserted that it is irrational and arbitrary for the EPA to continue to rely on speculation that alternative formulas could be inadequate, particularly given that there is zero record evidence that target HAP-free formulas are not widely available or perform worse than toxic formulas. The commenter contended that the EPA must rationally evaluate whether stronger protections should now be adopted in light of these developments and more than a decade of experience after California's ban on the use of the most toxic formulas.

Response: It was the EPA's determination in 2008 that such a ban was not reasonable, feasible, or cost-effective to be widely applied. HAP-free alternatives were available during development of the initial NESHAP, and there has been a continuing trend of further developing such HAP-free alternatives. However, not all coating manufacturers have eliminated coatings that contain the target HAP. Some manufacturers provide the same coating in both a target HAP-free version and one containing the target HAP for certain applications. Additionally, the data on coating manufacturers the EPA has referenced is specific to manufacturers of automotive surface coatings and does not cover the other source categories that are subject to the NESHAP. While the automotive industry has seen considerable improvements in surface coating technologies that avoid use of the target HAP in original equipment manufacture, automotive refinishers must sometimes use coatings that contain target HAP. In addition, other industries such as aerospace are still reliant on target HAP-containing coatings due to a lack of suitable alternatives that meet certain performance characteristics, such as corrosion resistance properties, which in many cases can still only be met with hexavalent chromium-containing coatings. Viable alternatives are actively being researched through programs such as the Department of Defense's Advanced Surface Engineering Technologies for a Sustainable Defense (ASETSDefense) program, and less hazardous alternatives have been authorized where possible, but alternatives have still not been found for many applications.

The commenter also claims that the EPA has dismissed the experiences of states that have required stronger protections to feasibly reduce emissions. However, the only state the commenter has specifically offered as an example is California. We assume that California's ban to which the commenter refers is the 2001 Air Borne Toxic Control Measure for Emissions of Hexavalent Chromium and Cadmium from Motor Vehicle and Mobile Equipment Coatings (ATCM). The ATCM only addresses motor vehicle and mobile equipment surface coatings; it does not cover any of the other source categories subject to the NESHAP. The commenter's statement fails to address other surface coating applications where substitution of non-HAP coatings is not always feasible. Additionally, the ATCM only eliminates the use of cadmium and chromium and does not apply to the other target HAP covered by the NESHAP.

For the reasons explained in the preamble to the proposed rules (86 FR 66130, November 19, 2021), and in our analysis of public comments explained above in section IV.A.3 of this preamble, we are making no changes to subpart HHHHHH to require additional controls pursuant to CAA section 112(d)(6) and are finalizing the results of the technology review as proposed.

We proposed that owners and operators of paint stripping and surface coating facilities submit electronic copies of initial notifications required in 40 CFR 63.9(b) and 63.11175(a), notifications of compliance status required in 40 CFR 63.9(h) and 63.11175(b), the annual notification of changes report required in 40 CFR 63.11176(a), and the report required in 40 CFR 63.11176(b) through the EPA's Central Data Exchange (CDX) using the Compliance and Emissions Data Reporting Interface (CEDRI). More detailed information on these changes can be found in the November 19, 2021, proposal preamble (86 FR 66140).

We are finalizing the electronic reporting provisions as proposed with no changes (86 FR 66140, November 19, 2021).

Comment: One commenter suggested that the EPA minimize the requirements for electronic reporting to the extent possible, allow flexibility in the format, and allow hard copy reporting as needed to reduce the burden on small businesses.

Another commenter argued that the data obtained through electronic reporting will be highly incomplete due to the lack of internet access among small businesses and because of how complicated CEDRI is. The commenter claimed that making electronic reporting a requirement would create high rates of noncompliance with no real benefit to the environment.

Response: The EPA recognizes that there will be a slight burden to gain initial familiarity with the CEDRI system. However, after the initial process, the EPA believes electronic reporting will lessen burden for all involved parties. The EPA does allow flexibility in the format of the reports, and there is no template or prescriptive data entry process unlike for many other rules. The required documents, each of which involves fairly minimal information requirements, may be submitted in a standard PDF format. Allowing hard copy reporting would reduce the effectiveness of this program, as the intent is to create an electronic record that lessens the burden on all involved, and a hybrid mixture of new documents in both electronic and paper formats would be unwieldy.

Comment: One commenter stated that the small business community lacks the resources that larger businesses have to accomplish electronic reporting and that many shops do not have internet access or computers. According to the commenter, many shops that would regularly utilize internet access at public libraries have not been able to do so during the COVID-19 pandemic.

Response: It is the EPA's position that internet access is easily obtained, and temporary disruptions due to a pandemic are not indicative of, or used to determine, standards that would typically apply.

For the reasons explained in the preamble to the proposed rules (86 FR 66130, November 19, 2021), and in the comment responses above in section IV.B.3 of this preamble, we are finalizing the electronic reporting provisions for 40 CFR part 63, subpart HHHHHH, as proposed.

In the November 19, 2021, action, we proposed amendments to the Paint Stripping and Miscellaneous Surface Coating Operations at Area Sources NESHAP to remove and revise provisions related to SSM that are not consistent with the statutory requirement that the standards apply at all times. More information concerning the elimination of SSM provisions is in the preamble to the proposed rule (86 FR 66141).

We are finalizing the SSM provisions as proposed with no changes (86 FR 66130, November 19, 2021).

No comments were received on our proposed changes to the SSM provisions.

For the reasons explained in the preamble to the proposed rule (86 FR 66130, November 19, 2021), we are finalizing the SSM provisions for 40 CFR part 63, subpart HHHHHH, as proposed.

In the November 19, 2021, action, we proposed a simplified petition for exemption process for motor vehicle or mobile equipment surface coating operations that do not spray-apply any coatings that contain the target HAP. More information concerning the simplified petition for exemption process is in the preamble to the proposed rules (86 FR 66141).

We are finalizing the simplified alternative to the petition for exemption process as proposed with no changes (86 FR 66130, November 19, 2021).

We received three comments concerning the petition for exemption process for motor vehicle or mobile equipment surface coating operations.

Comment: One commenter urged the EPA to delete the petition for exemption process for motor vehicle or mobile equipment surface coating operations. The commenter asserted that the EPA is incorrect in its conclusion that autobody shops are often unaware of the HAP content of the coatings they apply. The commenter stated that manufacturers provide information to their customers such that automotive refinishing operations know the HAP composition of the products that they use. In addition, many automotive refinishing operations have state and local air permits that require the disclosure of a considerable amount of information on these operations and their emissions. The commenter argued that automatically subjecting automotive refinishing operations to the rule also places an excessive burden on the smallest of the sources affected by the rule. For consistency and to reduce burden (especially for small business operations), the commenter recommended that the EPA revise the rule so that miscellaneous metal parts, plastic parts, and automotive refinishing operations are not subject to the rule unless they use coatings containing the target HAPs of concern.

Response: The EPA notes that sources that perform surface coating of miscellaneous metal parts and plastic parts are only subject to the NESHAP standards if they spray-apply target HAP-containing coatings. That is because it is easier for them (and the EPA/delegated authorities) to know and track the HAP content of these coatings. In contrast, because automotive refinishing operations are relatively numerous, as well as less consistent in facility operation and in the coatings that they may purchase or use at any given time, the EPA has concerns that changing the general applicability would make it even more difficult to support compliance with the standards.

In addition, the target HAP that are the subject of this rule are not a priority for state and local air agencies, except for a few cases—such as California's 2001 ban on cadmium and chromium—and are not addressed in or limited by state and local air quality permits. Therefore, the information that is collected from automotive refinishers under this rule would not otherwise be readily available. The EPA has, however, reduced the burden on automotive refinishing facilities by allowing them to submit a notification to the EPA that they are not subject rather than having to petition the EPA for a determination that they are not subject.

The EPA's assessment in the original 2008 rule was that most sources were already in compliance with these standards and that, for those that were not, achieving compliance would not be overly burdensome. Because target HAP-free coatings have become even more available in recent years, achieving compliance is arguably even less burdensome than before the rule.

Comment: One commenter argued that the requirement that autobody shops must file a petition to have EPA approve their exempt status singles them out from all other businesses that spray paint on metal and plastic substrates. The commenter stated that the requirement to file a petition for exemption adds a substantial burden on these very small businesses that others do not have. Due to the extra burden of filing a petition, the commenter said that it is likely that tens of thousands of shops are out of compliance with a rule when they technically should not be subject to it at all.

Response: The EPA maintains that autobody shops operate differently from the other miscellaneous surface coating operations and that distinguishing them is merited due to these differences. However, we have no evidence that the burden of electronically submitting a PDF is onerous, and we note that there is a benefit for all involved parties to have readily accessible documentation of basic facts about subject sources and their compliance with the NESHAP requirements. The commenter's claim that the burden of filing a petition for exemption is a cause of source noncompliance is unsubstantiated. In fact, the EPA's proposed simplified alternative to the petition for exemption process reduces possible burden.

Comment: One commenter recommended that if the EPA chooses to retain the petition for exemption requirements on autobody shops, it is essential to fix 40 CFR 63.11170(a)(2) to exempt shops from only the coatings portion of the subpart and not the paint stripping portion. Likewise, the commenter urged the EPA to clarify that using MeCl stripper does not preclude a shop from petitioning for exemption from the coatings portion. Finally, the commenter requested that the EPA clarify that a petition for exemption does not require that an initial notification be filed at the same time since a granted petition obviates the need for an initial notification.

Response: The EPA maintains it is already clear that the exemption only applies to activities under 40 CFR 63.11170(a)(2), and that is made explicit in the example petition for exemption document that can be found on the EPA's Collision Repair Campaign Documents web page ( https://www.epa.gov/collision-repair-campaign/collision-repair-campaign-documents ). However, to improve clarity, the EPA is revising the second sentence of 40 CFR 63.11170(a)(2) such that the rule language no longer refers to “an exemption from this subpart,” and instead refers to “an exemption from the surface coating provisions of this subpart.” The NESHAP does require that each facility provide an initial notification, to include information specified in 40 CFR 63.11175(a), regardless of whether or when the facility chooses to additionally submit a petition for exemption, or the simplified alternative notification that they do not spray-apply coating containing the target HAP.

For the reasons explained in the preamble to the proposed rules (86 FR 66130, November 19, 2021), and in the comment responses above in section IV.D.3 of this preamble, we are finalizing the provisions for a simplified alternative to the petition for exemption process for 40 CFR part 63, subpart HHHHHH, as proposed.

Currently, we estimate 39,812 area source facilities are subject to the Paint Stripping and Miscellaneous Surface Coating Operations at Area Sources NESHAP and operating in the United States. The affected source under the NESHAP is the collection of any and all of the items listed in (1) through (6) of this section V.A of the preamble. Not all affected sources will have all of the items listed in (1) through (6) of this section V.A of the preamble.

(1) Mixing rooms and equipment;

(2) Spray booths, ventilated prep stations, curing ovens, and associated equipment;

(3) Spray guns and associated equipment;

(4) Spray gun cleaning equipment;

(5) Equipment used for storage, handling, recovery, or recycling of cleaning solvent or waste paint; and

(6) Equipment used for paint stripping at paint stripping facilities using paint strippers containing MeCl.

Estimated emissions of target HAP and MeCl from the facilities in the Paint Stripping and Surface Coating source categories are not expected to change in any significant way due to this review or its associated amendments to the NESHAP.

These amendments acknowledge that all area sources in the source categories must comply with the relevant emission standards at all times, including periods of SSM. We were unable to quantify the emissions that occur during periods of SSM or the specific emissions reductions that will occur as a result of this action. However, eliminating the SSM exemption has the potential to reduce emissions by requiring facilities to meet the applicable standard during SSM periods.

Indirect or secondary air emissions impacts are impacts that would result from the increased electricity usage associated with the operation of control devices ( e.g., increased secondary emissions of criteria pollutants from power plants). Energy impacts consist of the electricity and steam needed to operate control devices and other equipment. These amendments would have no effect on the energy needs of the affected paint stripping and surface coating facilities and would, therefore, have no indirect or secondary air emissions impacts.

We estimate that each facility in the source categories will experience one-time costs of approximately $400. These costs are a combination of the estimated reporting and recordkeeping costs (2 technical hours), and the time to read and understand the rule amendments (2 technical hours). 1 Costs associated with adoption of electronic reporting were estimated as part of the reporting and recordkeeping costs and include time for sources to familiarize themselves with electronic record systems.

For further information on the potential costs, see the memorandum titled Proposal Economic Impact Analysis for the National Emissions Standards of Hazardous Air Pollutants: Paint Stripping and Miscellaneous Surface Coating Operations at Area Sources, available in the docket for this action.

The economic impact analysis is designed to inform decision makers about the potential economic consequences of the compliance costs outlined in section V.C. of this preamble. To assess the maximum potential impact, the largest cost expected to be experienced in any one year is compared to the total sales for the ultimate owner of the affected facilities to estimate the total burden for each facility.

For the final revisions to the Paint Stripping and Miscellaneous Surface Coating Operations at Area Sources NESHAP, the total cost is estimated to be approximately $400 per facility in the first year of the rule. These costs are not expected to result in a significant market impact, regardless of whether they are passed on to the purchaser or absorbed by the firms.

The EPA also prepared a small business screening assessment to determine whether any of the identified affected entities are small entities, as defined by the U.S. Small Business Administration. Of the facilities potentially affected by the final revisions to the Paint Stripping and Miscellaneous Surface Coating Operations at Area Sources NESHAP, we estimate that the vast majority are small entities. However, the annualized costs associated with the final requirement is from 0.0 to 0.2 percent of annual sales revenue for the ultimate owner of those facilities, well below the 1 percent threshold. Therefore, there are no significant economic impacts on a substantial number of small entities from these amendments.

As stated in section V.B. of the November 19, 2021, proposal preamble (86 FR 66130), we were unable to quantify the specific emissions reductions associated with eliminating the SSM exemption, although this change has the potential to reduce emissions of the target HAP and MeCl.

Because these amendments are not considered economically significant, as defined by Executive Order 12866, we did not monetize the benefits of reducing these emissions. This does not mean that there are no benefits associated with the potential reduction in target HAP and MeCl from this rule.

Executive Order 12898 directs the EPA to identify the populations of concern who are most likely to experience unequal burdens from environmental harms; specifically, minority populations, low-income populations, and indigenous peoples (59 FR 7629, February 16, 1994). Additionally, Executive Order 13985 was signed to advance racial equity and support underserved communities through Federal government actions (86 FR 7009, January 20, 2021). The EPA defines environmental justice (EJ) as the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies. The EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies” ( https://www.epa.gov/environmentaljustice). In recognizing that minority and low-income populations often bear an unequal burden of environmental harms and risks, the EPA continues to consider ways of protecting them from adverse public health and environmental effects of air pollution. To examine the potential for any EJ issues that might be associated with the source categories, we performed a demographic analysis, which is an assessment of individual demographic groups of the populations living within 5 kilometers (km) and within 50 km of the facilities. The EPA then compared the data from this analysis to the national average for the demographic indicators.

In the analysis, we evaluated the proximity of minority and low-income groups within the populations that live near facilities. Data limitations preclude a complete analysis. This NESHAP applies to sources in many different industries, often operating as small facilities, and limited location data of subject facilities was available. As described in the technology review memorandum, available in the docket for this action, and section II.C of this preamble, we did conduct searches for available information. However, the results do not account for emission or risk impacts from sources and may not be fully representative of the full distribution of facilities across all locations and populations. This analysis is intended to function as a guide to possible proximity disparities.

Based upon the number of facilities in this analysis and their proximity to urban centers, the category minority demographics are higher than the national average while individual facilities for a large number of sites will significantly exceed the national average demographics for every group due to being in urban locations. The results of the demographic analysis for populations within 5 km of the facilities within the source categories indicate that the minority population (being the total population minus the white population) is higher when compared to the national percentage (49 percent versus 40 percent). These comparisons also hold true for other demographic groups (African American, Other and Multiracial Groups, Hispanics, and people living in linguistic isolation). The African American demographic group shows the highest difference when compared to the national average (17 percent vs 12 percent). The remaining demographics identified above were above the national average by 2 percent. The methodology and the results of the demographic analysis are presented in a technical report, Technology Review— Analysis of Demographic Factors for Populations Living Near the Paint Stripping and Miscellaneous Surface Coating Operations at Area Sources Source Categories, available in this docket for this action. While demographic analysis shows some population categories that are above the national average, this action is not likely to change levels of emissions near facilities. Based on our technology review, we did not identify any add-on control technologies, process equipment, work practices or procedures that were not previously considered during development of the 2008 Paint Stripping and Miscellaneous Surface Coating at Area Sources NESHAP, and we did not identify developments in practices, processes, or control technologies that would result in additional emission reductions.

This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because the EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children.

Additional information about these statutes and Executive Orders can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

This action is not a significant regulatory action and was, therefore, not submitted to the Office of Management and Budget (OMB) for review.

The information collection activities in this final rule have been submitted for approval to OMB under the PRA.

The Information Collection Request (ICR) document that the EPA prepared has been assigned EPA ICR number 2268.08. You can find a copy of the ICR in the docket for this action (Docket ID No. EPA-HQ-OAR-2021-0016), and it is briefly summarized here.

As part of the technology review for the NESHAP, the EPA is not revising the emission limit requirements. The EPA is revising the SSM provisions that previously applied to the NESHAP and is proposing the use of electronic data reporting for future notifications and reports. This information is being collected to assure compliance with 40 CFR part 63, subpart HHHHHH.

Respondents/affected entities: Facilities performing paint stripping and surface coating operations at area sources.

Respondent's obligation to respond: Mandatory (40 CFR part 63, subpart HHHHHH).

Estimated number of respondents: In the 3 years after the final rulemaking, 38,194 respondents per year would be subject to the NESHAP and no additional respondents are expected to become subject to the NESHAP during that period.

Frequency of response: The total number of responses in year 1 is 76,388. Years 2 and 3 would have no responses.

Total estimated burden: The average annual burden to the paint stripping and surface coating operations at area source facilities over the 3 years is estimated to be 43,900 hours (per year). The average annual burden to the Agency over the 3 years is estimated to be 0 hours (per year). Burden is defined at 5 CFR 1320.3(b).

Total estimated cost: The average annual cost to the facilities is $5,200,000 in labor costs for the first 3 years. The average annual capital and operation and maintenance (O&M) cost savings is $27,100, because photocopying and postage will no longer be necessary in submitting notifications and reports. The total average annual Agency cost over the first 3 years is estimated to be $0.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. The economic impact associated with the proposed requirements in this action for the affected small entities is described in section V.D. above.

This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local, or tribal governments or the private sector.

This action 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.

This action does not have tribal implications as specified in Executive Order 13175. No tribal facilities are known to be engaged in any of the industries that would be affected by this action. Thus, Executive Order 13175 does not apply to this action. Nevertheless, consistent with the EPA Policy on Consultation and Coordination with Indian Tribes, EPA sent out consultation letters to 574 federally recognized tribes offering tribal officials the opportunity to meaningfully engage on a government-to-government basis. We did not receive any requests for consultation. In addition, on June 24, 2021, EPA provided an overview of the proposed action on the monthly National Tribal Air Association (NTAA) air policy call to provide tribal environmental professionals an opportunity to ask questions.

This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because the EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children.

This action is not subject to Executive Order 13211 because it is not a significant regulatory action under Executive Order 12866.

This rulemaking involves technical standards. We are amending the Paint Stripping and Miscellaneous Surface Coating Operations at Area Source NESHAP in this action to update references to 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,” with ANSI/ASHRAE Standard 52.2-2017 “Method of Testing General Ventilation Air-Cleaning Devices for Removal Efficiency by Particle Size.” Both methods measure paint booth filter efficiency to measure the capture efficiency of paint overspray arrestors with spray-applied coatings. The EPA is also amending the NESHAP to include EPA Method 319—Determination of Filtration Efficiency for Paint Overspray Arrestors (Appendix A to 40 CFR part 63), as an alternative to ANSI/ASHRAE Standard 52.2-2017.

The ANSI/ASHRAE standard is available from the American Society of Heating, Refrigerating and Air-Conditioning Engineers, 1791 Tullie Circle NE, Atlanta, GA 30329. See https://www.ashrae.org.

Under 40 CFR 63.7(f) and 40 CFR 63.8(f) of subpart A of the General Provisions, a source may apply to the EPA for permission to use alternative test methods or alternative monitoring requirements in place of any required testing methods, performance specifications, or procedures in the final rule or any amendments.

The EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations, and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). The methodology and the results of the demographic analysis are presented in a technical report, Technology Review — Analysis of Demographic Factors for Populations Living Near the Paint Stripping and Miscellaneous Surface Coating Operations at Area Sources Source Categories, available in this docket for this action.

This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

For the reasons stated in the preamble, the Environmental Protection Agency is amending part 63 of title 40, chapter I, of the Code of Federal Regulations as follows:

This is a summary of the Commission's Report and Order ( Order ) in PS Docket No. 15-94, FCC 22-75, adopted on September 29, 2022 and released on September 30, 2022. The full text of this document is available at https://www.fcc.gov/document/fcc-improves-accessibility-and-clarity-emergency-alerts.

To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

1. To improve the clarity and accessibility of alerts, the Commission adopts rules to facilitate the increased use of the internet Protocol-based Common Alerting Protocol (CAP) format for certain types of EAS alerts. CAP-based alerts typically provide more information than the corresponding alerts delivered in legacy format. Therefore, in this Report and Order, the Commission directs EAS Participants to check whether certain types of alerts are available in CAP format and, if so, to transmit the CAP version of the alert rather than the legacy-formatted version. The Commission also revises the prescribed text that EAS Participants use to identify certain alerts regarding national emergencies and to announce EAS tests by eliminating technical jargon and replacing it with plain language terms that will be more easily understood by the public.

2. The Commission's rules currently permit, but do not require, EAS Participants to check for CAP-format versions of state and local area alerts at the time they receive legacy EAS-format alerts and, if the same alert is available in both formats, to transmit the CAP version rather than the legacy EAS version. The Commission is now requiring EAS Participants, upon receiving a legacy EAS alert message, to check whether a CAP version of the same alert is available on the Federal Emergency Management Agency's (FEMA) internet-based platform known as the Integrated Public Alert and Warning System (IPAWS) by polling the IPAWS feed for CAP-formatted EAS messages. If a CAP version is available, the Commission requires EAS Participants to transmit the CAP version rather than the legacy version. In addition, to allow sufficient time for a CAP version to appear without unduly delaying transmission of the alert, the Commission requires EAS Participants not to transmit an alert in legacy format until at least 10 seconds after receiving its header codes unless they confirm by polling the IPAWS feed that no matching CAP version of the message is available. As discussed below, this requirement applies only to valid alert messages relating to event categories and locations for which the EAS Participant normally transmits such alerts pursuant to the State EAS Plan, but does not apply to national emergency messages, messages associated with national tests of the EAS, or required weekly test messages.

3. The Commission requires that, if an EAS Participant has received both a legacy EAS version and a CAP-formatted version of the same alert, it must transmit the CAP version, not the legacy EAS version. In other words, it must “prioritize” the CAP message. CAP-formatted alerts can relay much more data than legacy alerts, which can relay only an audio message and a limited amount of encoded data. EAS Participants may receive legacy and CAP alerts at different times, however, and under the current rules, if an EAS Participant receives the legacy version of an alert first, it might process that version and transmit it to the public even if a CAP version of the same alert arrives seconds later, leaving the potentially expanded content in the CAP version unused.

4. Requiring EAS Participants to check for CAP-formatted versions of alerts and use them, if available, will increase the proportion of alerts distributed to the public that include enhanced information. Several commenters support mandatory CAP polling and prioritization for this reason. The Accessibility Coalition, for example, comments that “[g]iven the greater capability of the CAP-based alerts, . . . a CAP-based alert should be checked for and utilized when possible . . .” NCTA agrees that “[e]xpanding the use of triggered CAP polling as proposed is a positive step toward providing all Americans more reliable and accessible emergency alerts.” Moreover, as Gary Timm points out, the requirement the Commission is adopting would “make good on the Commission's promise to the Commission's emergency management partners” that CAP-formatted alerts will “improve the messaging available through the EAS.”

5. The Commission is not persuaded by the arguments of commenters that oppose mandated CAP polling. For example, Donald Walker argues that mandating CAP polling “would likely impose significant monetary and time costs for development on equipment manufacturers as well as . . . EAS Participants,” especially broadcasters, and that “the public safety benefits of having matching audio and text crawls [would not] outweigh[ ] the burden that would be placed on the industry.” However, Walker fails to provide any factual information to support his assertions regarding the costs or time to implement mandatory CAP polling and prioritization, and Section III.E below explains the Commission's basis for finding the costs will likely be relatively low. Walker also ignores the significant public safety benefits that the increased clarity of the CAP-formatted visual crawl will provide for people who are deaf and hard of hearing (even if the text does not precisely match the audio version of an alert), and he fails to account for the benefits of more informative readable text on the screen for other viewers who may rely on both the visible scroll and the audible versions of alert messages to fully understand them.

6. Similarly, the Commission is not persuaded by NAB and other parties who argue against mandatory CAP polling and prioritization based on the fact that the National Weather Service (NWS) does not currently distribute alerts in CAP format over IPAWS due to concerns about issuing duplicative alerts for the same weather emergency. NAB contends that “[a]lthough NAB appreciates the FCC's forethought in seeking to increase the accessibility of EAS alert crawls, the fact that the proposed new process will not include weather-related alerts issued by NWS may frustrate the realization of this goal for the foreseeable future.” However, the Communications Security, Reliability, and Interoperability Council (CSRIC), an FCC advisory committee, recently analyzed the concerns about duplicative alerts that, until now, have led NWS to refrain from distributing CAP-formatted alerts, and identified and evaluated several potential changes that could ameliorate or resolve those concerns. The CSRIC recommendations could provide a basis for NWS to begin issuing CAP-formatted alerts over IPAWS in the foreseeable future, in which case the rule the Commission adopts today would require EAS Participants to transmit them.

7. Even if NWS does not change its approach in the near term, there are thousands of state and local alert originators that distribute EAS alerts in CAP format, covering numerous non-weather emergencies that pose harm to human health and property. The Commission does not see the logic of foreclosing the benefits to public safety of increased CAP usage for these state and local alerts just because NWS does not distribute CAP alerts at present. The Commission also disagrees with NAB's suggestion that mandatory polling might result in “unintended consequences” or “confusion caused by only a small percentage of EAS alerts including matching visual crawls and audio messages” NAB fails to explain what types of unintended consequences it is referring to, and the Commission finds its assertions about potential confusion to be entirely speculative. On the contrary, the Commission concludes that mandating CAP polling will reduce the potential for confusion and enhance public safety by ensuring a seamless transition at whatever point NWS decides to begin issuing CAP alerts over IPAWS.

8. Timing of Mandatory CAP Polling. In the Accessibility NPRM, the Commission proposed requiring CAP polling upon receipt of a state or local legacy alert, but sought comment on whether “EAS Participants [should] be allowed some minimum time frame, for example, 5-15 seconds,” to account for delays in the CAP message becoming available. Based on concerns raised in the record about the Commission's proposal to require polling at the time the legacy alert is received, the Commission modifies its proposal to include a brief timing delay. Specifically, the Commission requires that, when an EAS Participant receives a legacy-format alert that (i) is valid, (ii) covers a type of event and a geographic area for which the EAS Participant normally transmits alerts to the public pursuant to its State EAS Plan (but excluding messages with the EAN, NPT, or RWT event codes), and (iii) is not a duplicate of a CAP-formatted message it has already received, the EAS Participant must poll the IPAWS feed for a CAP version of the legacy alert at least 10 seconds after detection of the legacy alert's initial header code. For this purpose, two EAS messages are considered “duplicates” or “versions” of the same alert if the originator codes, event codes, location codes, and date-time codes in the headers of both messages are all identical, and the valid time period codes in the headers cover approximately the same periods of time, with allowances for the way CAP and legacy messages express valid time periods differently. The 10-second waiting period for CAP polling does not apply if the EAS Participant has already acquired the CAP version through polling the IPAWS feed prior to the 10-second threshold. In such instances, the EAS Participant need not poll IPAWS again or wait 10 seconds to send the alert, which must be sent in CAP format.

9. The parties' comments persuade us that requiring CAP polling immediately upon detection of a legacy alert, as the Commission originally proposed, would be counterproductive. When an alert originator sends an alert in both CAP and legacy formats, the record establishes that in many cases the CAP version will not appear on the IPAWS server until a few seconds after EAS Participants have received the legacy alert header code. Accordingly, a rule requiring immediate polling would fail to detect many CAP alerts by polling too early. By delaying the required polling until at least 10 seconds after receipt of the legacy alert's initial header code, the Commission allows sufficient time for the CAP version of the alert to appear and be retrieved, and the Commission significantly reduces the risk that an EAS Participant will send a legacy alert when a CAP version is available.

10. The Commission agrees with the Accessibility Coalition that, since “time is of the essence in emergencies,” the CAP polling rule should not cause significant delays in transmitting alert content to the public. The record indicates that most EAS devices require at least 15 seconds to process and transmit a legacy alert after the legacy header code is first detected. Thus, requiring EAS participants to wait 10 seconds before polling does not delay the normal time sequence for transmission of a legacy alert if no CAP version of the alert is available. With respect to Gary Timm's suggestion that we “set a minimum CAP Prioritization Seek Time of 5 or 10 seconds . . . ,” the Commission finds five seconds to be unnecessarily short, given that most EAS devices require at least 15 seconds to process and transmit a legacy alert after the legacy header code is first detected, and could preclude detection of matching CAP messages in a number of cases when more time was available for the CAP alert to become available.

11. The Commission recognizes that setting a minimum waiting period of more than 10 seconds would further “increase the likelihood that a matching CAP message will be found.” However, the Commission is concerned that requiring a waiting period longer than 10 seconds risks unduly delaying the transmission of alerts. At the same time, the Commission's rule gives EAS Participants flexibility to wait longer than 10 seconds to poll for CAP messages if they believe their individual circumstances or usual polling cycle so warrants. The Commission further clarify that if an EAS Participant has detected a CAP alert message concerning a time-sensitive emergency and is trying to retrieve it, but it is taking an unreasonably long time to finish downloading the full content of the message from the IPAWS server due to factors such as internet protocol (IP) transport latency, the EAS Participant may proceed to transmit the received legacy version of the same alert right away. The Commission leave it to EAS Participants to decide what a reasonable amount of time is, given their familiarity with their IP connections and the time-sensitivity of the emergency event in issue.

12. The Commission disagrees with Sage and other parties who argue that the minimum waiting period for CAP polling should be an option left to each EAS participant. As explained above, the Commission concludes that all EAS participants should be subject to the 10-second minimum time limit to ensure that the vast majority of CAP messages will be detected and used. However, by allowing EAS participants to poll after more than 10 seconds, the rule provides flexibility to address Sage's concern that a uniform, “one-size-fits-all” CAP polling and prioritization requirement would fail to account for unique factors affecting particular EAS Participants. The CAP prioritization mandate only sets the earliest time at which polling could occur and lets EAS Participants, based on their familiarity with their IP transport links and other factors, adopt a longer CAP polling interval if that works best for their systems.

13. The 10-second minimum also accounts for the concerns that equipment manufacturer DAS raises in its comments opposing any minimum delay time. DAS contends that, in the version of CAP polling and prioritization it has already implemented, “the polling [for] and processing [of CAP messages] . . . will not take longer” than the time required “to process the audio portion of a legacy EAS message that arrives first.” The Commission's rule accommodates this situation; it does not preclude EAS Participants from sending out a CAP message before the matching legacy message is ready to be transmitted. Similarly, the rule does not compel EAS Participants to transmit the CAP version (if one is available) any later than it would have transmitted the legacy version. Thus, the basic requirement to poll for the CAP version of a received legacy alert with the timing adopted here will not materially delay or otherwise hamper the relay of the received legacy version to the public.

14. Application of the CAP Priority Mandate. The Commission's new rules requiring EAS Participants to poll for and prioritize CAP-formatted messages will apply to all EAS alert categories except for alerts with the Emergency Action Notification (EAN), National Periodic Test (NPT), or Required Weekly Test (RWT) event codes. As discussed below, with respect to these three codes, the Commission concludes that requiring CAP polling and prioritization would be counterproductive.

15. The Commission exclude National Emergency Messages using the EAN code ( i.e., Presidential alerts) because the expectation is that any Presidential alert announcing a national emergency would contain live audio, and the record confirms that IPAWS is not presently capable of reliably carrying live audio messages in CAP format in real time. Moreover, the EAS-CAP Industry Group (ECIG) Implementation Guide contains no technical guidelines that would support such live transmissions over IPAWS. Because IPAWS cannot currently support live streaming of a Presidential alert, the Commission concludes the CAP polling mandate should not apply to EAN messages at the present time.

16. With respect to national test messages issued using the NPT code, the Commission does not require CAP polling or prioritization because it would undermine the objectives of testing. In some instances, the national EAS test conducted by FEMA is limited to testing EAS in the legacy format, i.e., the purpose of the test is to assess EAS's capacity to disseminate a legacy nationwide EAN alert. Because the Commission does not require EAS Participants to poll for a CAP version of an actual nationwide legacy EAN alert, there is no reason to require CAP polling when testing the system's capacity to transmit such an alert. Commenters concur that, for these reasons, requiring CAP polling of NPT alerts is unnecessary and potentially counterproductive. The same principle applies to instances where FEMA uses the NPT code to conduct a nationwide test of EAS in both legacy and CAP formats to compare the relative speed and propagation patterns for each format. In such instances, requiring EAS Participants to poll for and prioritize the CAP version of the message could skew the comparative test results by causing EAS Participants to rebroadcast (and further propagate over the daisy chain) the CAP version rather than the legacy version they received. Accordingly, the Commission declines to require CAP priority polling for the NPT at this time.

17. Finally, the Commission does not require polling for RWT alerts because they typically consist solely of tones, contain no audio or visual messages, and are used merely to ensure that the EAS equipment is functioning. Under these circumstances, the Commission agrees with commenters that there is no appreciable benefit to requiring CAP polling for RWT messages. With respect to the Required Monthly Test (RMT) alerts, however, the Commission agrees with commenting parties that the CAP polling requirement should apply. Because RMT alerts, unlike RWT alerts, are audible (and readable as visible text) to the general public, CAP polling and prioritization will enable the public to benefit from the superior quality of the text of CAP messages for those alerts.

18. The Commission declines to grant an exception from the CAP prioritization mandate for radio broadcasters, as advocated by NAB. NAB contends that “there seems to be no reason to force radio stations to upgrade equipment or otherwise change their current practices” since “the entire [ Accessibility NPRM ] is framed in terms of enhancing the accessibility of EAS alerts for persons who are deaf or hard of hearing through the dissemination of more alerts with matching visual crawls and audio messages.” The Commission disagrees. While the Accessibility NPRM emphasized matching of visual with audio messages, there are ample reasons why radio broadcasters, like video service EAS Participants, should be required to distribute CAP messages rather than legacy-formatted messages wherever possible. First, some digital radio broadcasters transmit visual alerts to digital radio receivers. Further, as discussed above, the audio generated from a CAP alert, whether from text-to-speech or from airing a CAP audio file, typically is superior in clarity and quality to that contained in a legacy alert. Use of text-to-speech has been standardized in EAS equipment and systems for over 12 years, and it is routinely used and supported today. Requiring radio broadcasters to prioritize CAP alerts over legacy alerts should result in optimizing the audio quality of the alert messages they broadcast, including rendering audio messages comprehensible that might otherwise be less intelligible had the legacy audio been broadcast instead. The Commission finds improving the audio quality of alerts to be an important public interest benefit, and the Commission therefore declines to exempt radio broadcasters from the CAP prioritization requirements adopted in this item.

19. Finally, the Commission concludes that it would not serve the public interest to require all EAS Participants to transmit both the legacy version of an alert message and a subsequently-acquired CAP message, as the Accessibility Coalition suggests. Such a requirement would result in the airing of duplicate alerts, which have historically been prohibited in the EAS rules because they can cause congestion in the alerting process, create public confusion, and cause additional preemption of programming that might cause broadcasters to abandon carriage of state and local alerts. In any case, the Commission expects the 10-second minimum polling requirement will be sufficient to capture any available CAP version of a received legacy alert in the vast majority of cases without causing significant delay in transmitting the alerts.

20. Consistent with the proposals in the NDAA NPRM and the Accessibility NPRM, the Commission amends its rules prescribing the language to be used in audible and viewable messages generated from three national EAS alert codes: EAN (Emergency Action Notification), NPT (National Periodic Test), and PEP (Primary Entry Point). In each case, the Commission adopts simpler, more straightforward terms that will enable the public to understand the origin and purpose of these alerts more easily and, in particular, will enable people who are deaf or hard of hearing to receive and comprehend the critical informational elements of the alerts. The revised text set forth below will be used in the messages displayed as text on the screens of viewers' devices. In addition, for alerts issued in CAP format with no audio message included, the EAS equipment will generate audio messages that include the revised text. The Commission also prescribes a scripted visual message that EAS Participants must display when FEMA conducts nationwide tests of the alert system in legacy EAS-only format. In conjunction with these changes, the Commission adopts certain conforming edits to the Commission's implementing rules. The Commission discusses these changes below.

21. The Commission revises the prescribed text associated with two event codes (EAN and NPT) and one originator code (PEP) listed in its rules. The Commission changes the text for the EAN event code from “Emergency Action Notification” to “National Emergency Message,” changes the text for the NPT event code from “National Periodic Test” to “Nationwide Test of the Emergency Alert System,” and changes the text for the PEP originator code from “Primary Entry Code System” to “United States Government.” The Commission agrees with the Accessibility Coalition that these changes to the alert text displayed to the public for these three codes will make the EAS more accessible to people who are deaf or hard of hearing. The Commission also agrees with FEMA, NWS, and many other commenters that these changes will make these national alerts easier for all members of the public to understand and will more effectively inform people of emergency situations. For consistency, the Commission also revises its rules to use the term “National Emergency Messages” instead of “Emergency Action Notification” wherever that term appears.

22. The improvements brought about by these text changes are evident when comparing the alert header seen or heard by the public under the preexisting rules and under the Commission's new rules. Under the preexisting rules, an alert using the PEP and EAN codes would read, in relevant part, “The Primary Entry Point system has issued an Emergency Action Notification. . . .” The new version of this alert will read, “The United States Government has issued a National Emergency Message. . . .” Similarly, for nationwide test alert messages initiated by FEMA in CAP format, the existing header text reads “the Primary Entry Point system has issued a Nationwide Periodic Test.” Under the Commission's new rules, the header text will read “the United States Government has issued a Nationwide Test of the Emergency Alert System. . . .”

23. The Commission finds that these changes will result in clearer and more comprehensible alert messages. The Commission agrees with the Accessibility Coalition that displaying clearer text for alerts will make these messages more accessible to people who are deaf or hard of hearing. NCTA also asserts, and NWS, NAB, DAS, and Sage agree, that such changes “will provide the public with clearer, more uniform, and more readily understandable information. . . .” The Commission concludes that changing the visual displays of alerts and related updates to improve clarity will mitigate the risk of reduced public response to emergency messages that the public misunderstands. The Commission also finds that clearer description of NPT test alerts will “minimize the potential for consumer confusion and alerting fatigue” and is therefore in the public interest,” even though the NPT is not warning the public of danger. Further, the Commission agrees with the Accessibility Coalition that clarifying visual alert displays will improve accessibility of the EAS for people with hearing-related disabilities. These changes will benefit the public by reducing confusion about what alert messages are communicating in times of emergency and “clarif[ying] the critical informational elements included in nationwide EAS tests, particularly for members of the public that cannot access the audio message.”

24. There is also ample justification for the specific wording of the new labels that the Commission is selecting for the EAN, PEP, and NPT codes. The Commission agrees with FEMA that “National Emergency Message” is a clearer and more accurate label for EAS alerts using the EAN code than “Emergency Action Notification,” which “has no meaning or significance to the public and may create confusion, delaying the public taking protective actions to mitigate the impact of the impending emergency event.”

25. Similarly, labeling alerts that use the PEP code as originated by the “Primary Entry Point system” is opaque to the general public and fails to provide any meaningful information about who originated the alert. In the NDAA NPRM, the Commission proposed to replace “Primary Entry Point system” with the term “National Authority.” However, the Commission concludes that the term “United States Government” more clearly communicates the source of such alerts than “National Authority,” and the Commission therefore adopts “United States Government” as the label for alerts using the PEP code.

26. The Commission also finds that changing the NPT alert text from “National Periodic Test” to “Nationwide Test of the Emergency Alert System,” as well as the NPT legacy script change discussed below, will make it clearer to the public that these alerts are only tests. This will eliminate confusion and will increase the public's overall trust in the alerting system, making it more likely that all members of the public will heed alert warnings and follow alert instructions in the future.

27. The Commission declines to adopt any other changes to alert code descriptions or scripts beyond those adopted today. The Commission agrees with NWS that other alert code descriptions received by the public are already sufficiently clear and convey the nature of the alert in a concise and easily understandable way. The Commission also declines suggestions to establish a new regional test code and require EAS Participants to display the word “regional” instead of “national” or “nationwide” when FEMA geotargets a test alert. The Commission finds that no confusion will result from using the term “national” or “nationwide” even if a regional test alert is sent, since NPT alerts are test messages that contain no emergency instructions to the public. In addition, the infrequency of regional NPT tests further persuades us that creating a separate new code for regional test alerts is unnecessary.

28. In the NDAA NPRM, the Commission proposed to change the three-letter EAN and PEP codes to match the proposed new text labels for these codes. On review of the record, however, the Commission sees no need to change any of the existing three-letter codes. Unlike the text labels that are seen by the public, the three-letter codes are entirely functional and the public never sees or hears them. These codes are automated computer language that are received and processed with no human involvement. Even EAS Participants would rarely see them, if ever, once the text change for a code is programmed into EAS equipment with a one-time update. The only time any employee of an EAS Participant would see the codes is if a station engineer were present on site and looking at the EAS screen at the moment an alert was received. The Commission also finds that no confusion will result from using codes that are not acronyms for the displayed text. This has long been the case for other codes currently in use without incident, like the “WXR” code for “National Weather Service.” Thus, there is no risk of public confusion from retaining the existing codes. In addition, as several commenters point out, changing these three-letter codes could be costly to implement and might create a risk of alert failure, which could seriously jeopardize public safety. NWS contends that changes to the existing three-letter alert codes might cause NOAA Weather Radios to display inaccurate or partial visual messages on radio display screens. No commenter supported changing the three-letter codes or identified any benefit to the public, EAS Participants, or alert originators of doing so. The Commission concludes that changing only the text for these alert codes without modifying the codes themselves will fully achieve its public interest objective of more comprehensible alerts, while avoiding unnecessary costs or risks.

29. Standard Script Displayed for Nationwide Test Alerts in Legacy EAS Format. The Commission adopts its proposal, discussed in the Accessibility NPRM, to modify the text display used in the visual crawl for EAS-based nationwide test alerts transmitted in legacy format. Specifically, when a legacy nationwide test alert is generated from the PEP and NPT header codes and uses the “All-U.S.” geographic location code, the Commission requires video service EAS Participants to display the following scripted text: “This is a nationwide test of the Emergency Alert System, issued by the Federal Emergency Management Agency, covering the United States from [time] until [time]. This is only a test. No action is required by the public.” This new text will be much easier to understand than the text displayed for such test alerts under the current rules (“the Primary Entry Point system has issued a National Periodic Test . . .”). The Commission notes that the revised text will be displayed only when FEMA issues a nationwide test alert in legacy EAS format and therefore cannot use the enhanced text capabilities of CAP to explain the alert visually in greater detail. It is unnecessary to prescribe such a script for test alerts that FEMA issues in CAP format, since FEMA can add explanatory text to CAP-formatted messages and ensure that the audio message matches the visual crawl generated for the alert.

30. The Commission disagrees with Sage's and Timm's arguments that addition of a script is a departure from processing of actual EAN alerts that would render the testing process less effective. As the Commission has long acknowledged, the technical parameters of NPT test alerts need not be identical to those of EAN alerts announcing actual national emergencies to generate an effective test, especially if a slight difference will make the test alert message are more comprehensible and accessible, including to people who are deaf or hard of hearing. In this instance, a slight deviation between the use of a scripted message for legacy NPT test messages and the visual crawl that would be generated for an actual EAN alert will not significantly diminish the NPT's usefulness. The Commission agrees with Sage, however, that there is no need to prohibit translations, and therefore clarifies that EAS equipment manufacturers may translate the NPT script adopted today into additional languages, as some currently do for alert code text descriptions.

31. The Commission also requires radio broadcasters to change the text for the NPT event code from “National Periodic Test” to “Nationwide Test of the Emergency Alert System.” The Commission disagrees with NAB's contention that “it seems inappropriate to impose the same obligation [to implement the new NPT text and NPT script] on audio-only EAS Participants, at least on the same terms as video service providers, as they do not contribute to the visual accessibility of EAS messages.” The Commission also disagrees with NAB's suggestion that the only “purpose of the CAP related obligation is to promote the ability of EAS alerting to provide matching visual and audio messages, to increase the clarity of alerts for persons who are deaf and hard of hearing.” While these are central reasons why we are adopting these requirements, they are not the only factors justifying these rule changes, as discussed above. For example, some digital radio broadcasters display visual alerts on the screens of digital radio receivers. Moreover, it is important for radio broadcasters' NPT alerts to refer to “Nationwide Test of the Emergency Alert System” in instances when CAP-format text messages do not include any audio content and the audio alerts must be generated based on the CAP message header using text-to-speech functionality. Otherwise, if FEMA were to send an NPT alert in CAP format consisting exclusively of text without any audio component, or if a distribution failure resulted in a radio broadcaster receiving only the text but not the audio portion of the alert, a radio broadcaster that had not implemented the new NPT text would air the outdated “National Periodic Test” language that the Commission has found to be confusing to the public.

32. While the Commission requires radio broadcasters to implement the new NPT header code text, it declines to require them to update their devices to accommodate the new prescribed script for legacy-format NPT messages. The Commission concludes that imposing such a requirement on radio broadcasters would yield only minimal benefits, because the prescribed NPT script is to be used only in visual displays and would not affect audio messages. Although a few radio broadcasters might be able to display the new prescribed script on digital radio receiver screens, they would display the clearer NPT label that the Commission adopts today (“Nationwide Test of the Emergency Alert Message”) even if they were not required to display the more detailed NPT script; and imposing that requirement on the large majority of radio broadcasters would have no impact on alert clarity. Radio broadcasters are free to implement this updated script voluntarily, however, and the Commission encourages them to do so if it will improve digital radio visual displays, or for the sake of consistency across deployed EAS decoder devices.

33. Eliminating National Information Center (NIC) Code. As the Commission proposed in the NDAA FNPRM, the Commission is deleting the National Information Center (NIC) event code because the federal National Information Center no longer exists, and there is thus no reason to maintain this event code in the rules. Most commenting parties agree. Deleting the NIC code will avoid confusion by preventing any accidental activation of this obsolete alert and will avert the risk of rogue alerts that might be caused by unauthorized parties' intentional misuse of the NIC code. Since deletion of the NIC code can be implemented by a simple software change that requires only an update to EAS encoders, the Commission requires EAS Participants to implement this change in the same timeframe as the other EAS encoder device changes adopted in this order. This should entail negligible costs since EAS Participants can implement all required encoder updates in a single package update. The Commission also directs SECCs to remove this code from state EAS plans and advises FEMA to remove NIC from its list of codes that can be accepted from alert originators and issued via IPAWS.

34. The Commission rejects Sage's alternative proposals for preventing issuance of NIC-coded alerts without deleting the NIC code, such as directing parties to ignore the code and asking FEMA and alert originators not to use it. These approaches would be more complicated to implement than simply deleting the NIC code, and they would be far less effective at preventing potential misuse of a code that is otherwise obsolete and unnecessary. The Commission also rejects Donelan's suggestion that the NIC code be retained and repurposed. The Commission cannot do this except in concert with FEMA, which has asked to delete the code.

35. Conforming Changes to Implementing Rules. Finally, to avoid potential confusion stemming from associating the PEP originator code with the term “United States Government,” the Commission is replacing the term “Primary Entry Point System” in the rules with the term “National Public Warning System.” The Commission notes that FEMA has ceased using “Primary Entry Point System” and has replaced it with the term “National Public Warning System” (NPWS), and the Commission finds that aligning its terminology with FEMA's is in the public interest. While the Commission did not specifically propose or mention this rule change in the NDAA NPRM or the Accessibility NPRM, the Commission believes it is a logical outgrowth of the proposal to change the text associated with the PEP originator code. Furthermore, to the extent necessary, the Commission invokes the exception in the Administrative Procedure Act that allows agencies to proceed without notice and comment to revise rules where notice and comment is unnecessary. Here, the Commission believes initiating another notice and comment proceeding to address this non-substantive conforming rule change is unnecessary and that adopting it without further notice and comment is in the public interest, because the change in terminology used to refer to certain entities in the Commission's rules will have no impact on any party's rights or obligations. The Commission also makes minor edits to Part 11 to update the contact information for the National Archives and Records Administration. These updates to NARA's contact information do not alter the substance of parties' obligations, but merely the procedures they follow to obtain required standards from NARA, and the Commission thus views them as procedural rule changes for which notice and comment is not required. To the extent that these rules were instead seen as something other than procedural rules, the Commission independently finds good cause to forgo notice and comment as an alternative basis for its decision. The Commission finds notice and comment unnecessary because regulated entities' rights and obligations are not being altered.

36. The Commission requires all EAS Participants to comply with the rules adopted in this order no later than one year from the effective date of the order (subject to the exceptions discussed below). The Commission agrees with commenting parties that all rule changes requiring software updates to EAS encoder equipment can be accomplished on a one-year schedule. Equipment suppliers DAS and Sage indicate that changes such as the revised EAN code text and removal of the NIC event code “can be accomplished via software updates” to EAS equipment in tandem with “regularly scheduled maintenance activities” involving minimal cost and effort on the part of EAS manufacturers and participants and that “[t]he normal estimate of a year would apply.” These parties support the same implementation period for the new CAP polling and prioritization requirements: DAS says it has already installed “a feature called Triggered CAP Polling TM ” on EAS devices and “made [it] available on every software update since 2018, while Sage states the feature “can be implemented by Sage and installed by users over a one-year period.” This one-year implementation period is consistent with past orders requiring EAS encoder software updates. This deadline applies to all EAS participants, including radio broadcasters.

37. REC Networks requests that the CAP polling implementation deadline be extended to three years for analog radio broadcasters, contending that “[t]here are many smaller broadcast stations, including LPFM stations, smaller noncommercial educational (NCE) stations as well as small `mom and pop' and other standalone commercial broadcasters, including those owned or controlled by minority groups[,] that do not have the budget or resources to implement CAP Polling within the proposed mandated one-year time frame.” The Commission declines to do so. REC cites vendor costs of less than $500 for the necessary software changes, and does not provide any evidence to suggest that this would be a financial hardship for small broadcasters, much less all analog broadcasters. Any individual entity may seek a waiver if it can demonstrate that “special circumstances” justify deviation from the generally applicable requirement. The Commission notes that REC Networks generally disagrees with its decision to apply the CAP polling and prioritization requirements to analog radio broadcast stations, as discussed above. Those general policy objections do not justify a special carve-out from the generally applicable compliance timeframe for an entire industry segment.

38. The Commission disagrees with NCTA's and ACA's argument that cable operators would need at least two years to conduct the downstream equipment testing and modifications needed to implement timed CAP polling and the changes to the PEP and NPT code texts and the NPT script. The EAS changes the Commission adopts in this Order are substantially similar to the NPT and national location code rule changes the Commission adopted in 2015, when NCTA agreed that one year was enough time for even a complex downstream equipment testing process. Neither NCTA nor ACA explains why the downstream equipment testing and modification process would take longer now than it did in the past. The Commission finds that one year is sufficient time (except in the circumstances described below) for all EAS Participants to implement the changes that the Commission deems necessary to improve public safety by making alerts more comprehensible and accessible, as promptly as practicable.

39. The Commission recognizes, however, that it may take more than one year for cable operators to implement the required change to the EAN text. Cable industry commenters note that the text associated with EAN-coded alerts (unlike text associated with other alert codes) is sometimes hard-wired into “downstream” equipment in cable operators' networks, including set-top boxes that are controlled by the cable operator and installed at customers' premises. Thus, while cable operators can implement software upgrades in their EAS encoder/decoder equipment to transmit the new text for the EAN code, many downstream set-top boxes cannot be similarly reprogrammed through software modifications alone (a problem that is especially acute for some older, discontinued models for which manufacturers no longer provide software support). As a result, implementing the new EAN text will require these set-top boxes to be replaced. Moreover, NCTA argues persuasively that wide-scale hardware replacement at customers' premises on a short timeframe would entail excessively high costs.

40. Specifically, the Commission grants cable operators six years from the effective date of today's order to complete the transition to the new EAN text display of “National Emergency Message” to the extent that the change requires replacement of navigation equipment ( i.e., set-top boxes) that cannot be safely updated via software upgrades alone, and 15 months from the effective date of the order in other instances where implementing the EAN text change require upgraded software on set-top boxes and headend equipment used to control set-top boxes. The Commission finds these longer compliance time frames for implementing the EAN change in this limited context to be justified, due to the risk that improperly programmed equipment might fail to transmit EAN alerts properly, the need for testing such software changes to assure a smooth and effective rollout, and the excessive costs that immediate replacement of such equipment would impose. Similarly, to the extent such changes require replacement of set-top boxes or other navigation equipment at customer premises, the Commission finds that it would not be in the public interest to require replacement of all such equipment in cable networks with the EAN text change within one year. A six-year implementation period will avoid rushed compliance efforts without testing and verifying the proper functionality of such equipment, and will enable cable operators to gradually replace outdated set-top boxes to the extent necessary on a schedule closer to the average lifecycle of this equipment, resulting in costs that would not substantially exceed those they would incur in the ordinary course of business.

41. The Commission's compliance timeline of six years is based on estimates of the average life span for replacement of cable set-top-boxes and similar devices that cable industry representatives have submitted to government agencies in the past. For example, NCTA represented in 2017 that the average set-top box lifespan is five to seven years and that the average deployment cycle for set-top boxes is six years. NCTA more recently stated that “its members estimate that set top boxes have “a lifecycle of roughly 10+ years,” but it has clarified that this estimate applies only to “newer set-top boxes [that] are designed to have longer lifespans,” not to all deployed set-top boxes. The six-year replacement timeline the Commission establishes today primarily applies to older legacy set-top boxes that cannot be updated via software changes. Therefore, it is appropriate to rely on the earlier estimates for purposes of establishing this timeline. Finally, the Commission does not adopt ACA Connects' proposal to exempt small cable operators from the set-top box replacement requirement or to extend the six-year timeline to ten years. While ACA Connects asserts that the requirement would be burdensome to small operators, it provides no evidence to support this assertion. ACA Connects states that “the cable video business has become increasingly challenging in recent years, especially for the smallest operators,” and argues that a mandate to replace set-top boxes “could prove highly burdensome for some operators and even encourage exit from the cable video business,” However, ACA Connects provides no cost data or other evidence that would support a blanket exemption for all small operators. To the extent that individual cable operators can demonstrate unique hardship or other special circumstances, they may seek a waiver pursuant to the Commission's rules.

42. NCTA asserts that even where set-top boxes need not be replaced, implementing the EAN text change may require upgraded software on set-top boxes and headend equipment used to control set-top boxes, and it argues that the Commission should allow 18 months for all required software upgrades, including the upgrades to implement the new labels for the NPT and PEP codes. The Commission declines to do so. The Commission will allow cable operators additional time to comply with the required change to the text associated with the EAN code only, but finds that 15 months is more than adequate to account for these software-related complexities, including any unexpected difficulties. The additional time the Commission is allowing for cable operators to implement the EAN text change, as discussed above, is justified by the potentially more complex activities necessary to reprogram or replace some set-top boxes and set-top box controller equipment at cable headends. No such activities are needed to implement the other changes adopted in this order, such as the CAP polling and prioritization requirements or the new labels for the NPT and PEP codes. The Commission also is not persuaded by NCTA's argument that establishing identical deadlines for all of these changes is needed to reduce the risk of complications or disruption to consumers. Like other EAS Participants, cable operators can implement changes other than the EAN change by relatively simple software upgrades on EAS encoder/decoder equipment that do not involve modifying software in set-top boxes or related equipment in cable headends and are not disruptive to the end user.

43. The Commission emphasizes that cable operators must implement any necessary EAN software modifications to their upstream EAS decoder equipment by the generally applicable one-year deadline. This will enable at least those subscribers with updated or newly replaced set-top boxes to see the new “National Emergency Message” text for EAN code alerts as soon as reasonably possible. To ensure that cable operators continue to successfully deliver alerts that use the EAN event code to their subscribers as the rules currently mandate, the Commission also requires these software updates to be implemented in such a way that, for the interim period of time prior to the date six years after the effective date of this Order, any set-top box that cannot receive a software update will still process the EAN and will continue to display the old “Emergency Action Notification” text upon receiving the EAN. Commenting parties confirm that a change to the EAN text only (as opposed to a change to the three-letter EAN code) will allow non-updated downstream processing equipment to continue to display alert messages.

44. To ensure that people with disabilities are supported during the interim equipment replacement period, the Commission further require that if a cable operator supplies or leases set-top boxes or similar navigation devices to its customers that cannot be updated to display the new text for EAN messages, the operator must, upon the request of any customer who is deaf or hard of hearing, replace that device with a new device capable of displaying the new EAN visual text. The cable operator must supply and, if necessary, install such a device within a reasonable time after receiving such a request, on the same terms and to the same extent as provided in 47 CFR 79.108. This rule, adopted as part of the Commission's implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA), involved a nearly identical weighing of equities requiring cable operators to provide compliant set-top boxes to subscribers with disabilities upon request and within a reasonable time to ensure accessibility without unduly burdening cable operators, and is therefore an appropriate standard here. The Commission agrees with DeafLink that increased EAS accessibility for people who are deaf or hard of hearing is long overdue, and “[t]he Deaf community has long awaited an accessible solution . . .” While the Commission is granting cable operators a six-year compliance window to avoid imposing excessive short-term costs, this does not excuse them from their obligation to promptly meet the needs of people who are deaf or hard of hearing for clear visual alerts. Moreover, since cable operators will need to implement equipment replacement plans to ensure that all set-top boxes on their networks can display the new EAN text by the end of the six-year period, the Commission believe it is reasonable to require that such plans include a mechanism to supply compliant set-top boxes at an earlier date to people who are deaf or hard of hearing who request them. To ensure that individuals with hearing disabilities can benefit from earlier access to new or updated set-top boxes, the Commission also requires cable operators to post information on the availability of such devices on their official websites as soon as new or updated devices are available for distribution to customers and explain the means for making requests for such equipment, in the same manner as by rule 79.108(d)(2). While the Commission did not explicitly seek comment on such proposed requirements, the Commission finds that these requirements are a logical outgrowth of the proposal in the NDAA FNPRM to revise the text of the EAN alert (if not the three letter code itself), in tandem with the cable industry's comments regarding the difficulty and time-consumer nature of doing so, as well the existing requirements that cable providers provide notice on their official websites about the availability of accessible navigation devices.

45. Finally, with respect to cable-card devices and smart TVs that are not controlled by cable operators, the Commission encourages those third-party manufacturers to update their deployed devices to reflect the new EAN text where possible, and to ensure future manufactured models reflect the new EAN text. Cable operators are required to transmit the EAN message to their subscribers, and should therefore take appropriate steps to minimize the risk that updates to their own facilities will trigger a downstream failure in existing third-party customer premise devices.

46. In the NDAA FNPRM, the Commission discussed a proposal, originally suggested by FEMA, to update legacy EAS to facilitate “persistent alerts”—that is, to enable alerts concerning “emergencies that require immediate public protective actions to mitigate loss of life” to “persist on EAS until the alert time has expired or is cancelled by the alert originator.” After review of the record, the Commission declines to take further action on this proposal at this time. The Commission is not persuaded that implementing this proposal in legacy EAS would be technically feasible, and it takes note of the virtually unanimous opposition to the proposal by commenting parties, including alert originators, SECCs, EAS Participants, and equipment manufacturers. As one commenter notes, legacy EAS does not enable alert originators to retract or alter an alert once they issue it, and the Commission is troubled by the possibility that a persistent alert could become outdated or even counter-productive if conditions change as emergency responders address an incident. For example, a persistent alert in legacy EAS would likely block out all subsequent alerts (except an EAN or NPT) until the valid time period for the original alert expired. During that time, the audio portion of the EAS alert would continuously play, which would drown out the audio of regular programming as well as any emergency news programming that might provide updated information related to the emergency condition not covered in the original EAS alert audio message. Similarly, the original visual message would continuously scroll until the time period for the alert expired, thus blocking the display of potential updated information that the EAS Participant might be attempting to broadcast.

47. While the Commission recognizes that persistent alerts could be feasible and potentially beneficial in a different aging system architecture, it does not see how those benefits could be realized in legacy EAS's architecture, which is designed to provide brief warnings to the public. Moreover, legacy EAS already provides a mechanism for repeatedly reminding the public of an impending emergency: alert originators can repeat their alerts if they determine that such action is warranted. Based on these considerations, the Commission is not adopting any new rules or policies to facilitate persistent alert messages in legacy EAS at this time.

48. Benefits. As discussed above, the Commission finds that today's rule changes will result in substantial public interest benefits. Specifically, the rule changes the Commission is adopting reduce confusion and make alerts easier to understand, making recipients more likely to trust alerts and respond to them, and will yield particular benefits by improving access to alert information for people with disabilities. The CAP polling rule change will lead to increased dissemination of CAP-formatted alerts, which provide more detailed alert information than legacy alerts to recipients, including better instructions on protective measures that the public should take. Similarly, the Commission's new rules requiring clearer identification of the purposes and origin of alerts increase the likelihood that the public will pay attention to them. Eliminating confusion and building trust in EAS makes it more likely that the public will follow alert instructions in the future. The public's increased understanding and trust in alerts improves public safety outcomes by saving lives and better protecting property.

49. While it is difficult to quantify the precise dollar value of improvements to the public's safety, life, and health, the Commission nonetheless concludes that very substantial public safety benefits will result from the rules it adopts today. EAS alerts that convey more complete information and are easier to understand by the general public, especially those with hearing and vision disabilities, will enable more listeners and viewers to respond to emergency situations by taking appropriate protective actions, such as evacuating or sheltering-in-place, depending on the nature of the emergency. As a consequence, the Commission anticipates that the rule changes it adopts today will yield substantial life-saving benefits in the event of such emergencies. As discussed above, the Commission agrees with commenting parties that the CAP polling and prioritization requirement will result in greater display of alerts with clearer and more informative visual text to better inform the public, and that changing the text of certain alert codes will improve the visual displays of alert messages. The value of improved public safety in reducing the risk of avoidable deaths and injuries by better informing the public of pending emergencies is substantial. While the Commission cannot estimate the precise incremental dollar value of these changes, improvements to the EAS that increase accessibility, enable people to access and understand alerts more easily and respond more quickly, and increase overall confidence in the EAS will produce large benefits to preservation of life and property. The Commission notes that some agencies estimate the benefits of preservation of life and property by considering the value of reduced mortality risk. If the Commission were to estimate that the rule changes it adopts today would reduce mortality risk sufficiently as to lead to an expected reduction of one life lost per year—an expectation the Commission finds reasonable and conservative here—the benefits of that risk reduction would be worth $59 million over the first five years after the rules take effect ( i.e., 5 × $11.8 million).

50. Costs. The measures adopted today are the most cost-effective ways to achieve the benefits of making EAS more comprehensible, and therefore more effective, as described above. By declining to adopt proposals to change the PEP code to NAT or the EAN code to NEM, the Commission avoids imposing additional and potentially excessive costs that its new requirements could have imposed on industry. By allowing six years for complete cable system EAN text change compliance, the Commission avoids imposing excessive costs on the cable industry that would have resulted from a shorter compliance timeframe. By exempting radio broadcasters from the legacy NPT script change, the Commission is reducing the extent of decoder software updates made outside of the normal course of planned upgrades. Yet, because the Commission is allowing sufficient time and flexibility to allow EAS Participants to make upgrades in tandem with general software upgrades installed during the regular course of business, the cost of the software changes needed due to the requirements adopted today will not significantly exceed the costs of software updates that most EAS Participants would need to implement whether or not these rule changes are adopted. Accordingly, most EAS Participants will avoid this cost.

51. In the NDAA FNPRM and the Accessibility NPRM, the Commission asked for cost estimate submissions from parties subject to today's decision. No party did so. The Commission believes, however, that the cost of implementing the EAS decoder equipment changes adopted in this order will be roughly in line with the cost of changes adopted in the 2016 Weather Alerts Order and the 2017 Blue Alerts Order, which similarly entailed few costs beyond the reprogramming of EAS decoder equipment. In the Blue Alerts Order, for example, the Commission concluded that the only cost to EAS Participants for installing the new EAS software is the labor cost involved in downloading the software patches into their devices and associated clerical work. The Commission follows the procedure of estimating the labor costs of updating software used in the Weather Alerts Order and the Blue Alerts Order.

52. To form an upper bound of the cost, the Commission assumes that the software update takes 5 hours, which it expects is substantially longer than the average time a software update would take. The Office of Management and Budget approved an estimate of $25 per hour of labor cost for an EAS Participant to fill out the Commission online report form for EAS National Tests in 2011. The Commission finds that the real labor cost of software updates to implement all of today's changes would be similar and adjusts the labor cost upward to $35 to reflect inflation since 2011. Each device update would then entail $175 of labor cost, and with 28,555 estimated broadcasters and cable headends to update, this implies a total cost of approximately $5 million. The figure 28,555 is comprised of the sum of 21,149 broadcast stations and 7,136 cable headends.

53. Indeed, the Commission finds that the software updating cost is likely to be well below $5 million because, as noted above, most EAS Participants will have sufficient time to avoid this labor cost by downloading the required software changes together with their general software upgrades. The Commission therefore estimates the cost of all decoder software updates most of which can be bundled with “normally scheduled software releases” and performed at the same time, will not exceed a total one-time cost of approximately $5 million for all EAS participants.

54. According to cable industry commenters, four of the six changes (CAP polling, EAN text, NPT text, and NPT script) also require significant testing in cable operators' networks. As to those testing costs for the cable industry, the Commission believes that industry will realize substantial cost savings from conducting coordinated testing for all of these changes and can do so on the same one-year schedule in tandem with other annual testing. The Commission expects that this will result in additional testing cost that, together with the software downloads, will not cause total costs to exceed the $5 million cost ceiling discussed above. As to the added equipment costs in the cable industry, the Commission expects that cost to be minimal. The six-year timeframe it is allowing for the replacement of set-top boxes will enable operators in most cases to install new equipment in consumers' premises in the ordinary course of business. The Commission estimates that the additional amount that cable operators will incur for replacing set-top boxes to implement the new EAN requirement over the six-year period will not exceed $4.4 million as a cost ceiling.

55. Comparison of Costs and Benefits. The Commission concludes that the life-saving benefits to the public of increased comprehensibility and accessibility of emergency information from the actions adopted in this Order will far outweigh the implementation costs imposed on EAS participants. Without attempting to quantify the precise dollar value of improvements to the public's safety, life, and health, the Commission observes that the value of the benefits of each of today's six changes would only have to exceed the worst-case estimated implementation costs to outweigh the cost of compliance. In light of the record reflecting substantial public safety improvements from today's changes, the Commission finds that the changes will have a value that greatly exceeds the $9.4 million overall cost ceiling for implementing these six changes. Based on the record, the Commission further finds that each change has a value that exceeds its incremental implementation cost.

56. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Further Notice of Proposed Rulemaking released in June 2021, and the Notice of Proposed Rulemaking released in December 2021 ( Notices ). The Commission sought written public comment on the proposals in the Notices, including comment on the IRFAs. The two comments were filed addressing the IRFAs are discussed below in Section B. This present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

57. In today's Report and Order ( Order ), the Commission adopts rules to improve the comprehensibility and accessibility of emergency alerts the public receives via broadcast, cable, and satellite radio and television via the Emergency Alert System (EAS). The EAS ensures that the public is quickly informed about emergency alerts issued by federal, state, local, Tribal, and territorial governments and delivered over radio and television. These announcements keep the public safe and informed and have increased in importance in the wake of the emergencies and disasters experienced by Americans in the past few years. The Commission has determined that these EAS rule changes are necessary to improve the comprehensibility and accessibility of EAS alerts, and to ensure equal accessibility to emergency alert information for people with hearing disabilities. Consistent with the congressional directives in the Communications Act, the Commission amends its rules to ensure that more people will receive better emergency alert information from the EAS.

58. Specifically, the Commission requires EAS Participants, upon receiving an alert in legacy format, to poll the Federal Emergency Management Agency's (FEMA) Integrated Public Alert Warning System (IPAWS) for a version of the alert in the Common Alerting Protocol (CAP) and, if available, to distribute the CAP version of the alert instead. The Commission also amends its rules to change the visual text displayed to the public for three alert codes: the Emergency Action Notification (EAN), the Primary Entry Point system (PEP), and the National Periodic Test (NPT), and to add a fourth new visual display for when the NPT is sent in legacy-only format. Finally, the Commission removes the outdated National Information Center (NIC) code from the EAS.

59. The rules adopted in the Order are intended to improve the clarity and comprehensibility of visual alert information for all Americans, and to ensure alerts are accessible to people who are deaf or hard of hearing. They will benefit the public by improving the quality of emergency information received, and they will ensure that the superior visual “enhanced text” capabilities of CAP alerts are more frequently distributed to the public. These actions will have the result of minimizing confusion and disruption caused by confusing visual alerts, will increase the public's trust in the EAS system, will promote accessibility to emergency information for people who are deaf or hard of hearing, and therefore will improve the system for distributing vital alert information for all Americans.

60. Brett Silverman and Jack Underhill filed comments that specifically addressed the analysis presented in the IRFAs. Silverman states that the Commission's 2012 order requiring all EAS Participants to make significant upgrades to their EAS equipment to support CAP alerting “means that many of the smaller business entities have already paid to update their EAS systems,” and therefore the proposed rules “will not put a significant effect on smaller broadcast companies who it may have been a burden for.” Underhill states that the Commission should minimize costs for small entity broadcasters by “grant[ing] governmental subsidies to fund the software upgrades,” or by “providing a general subsidy for organizations to fund any kind of equipment.”

61. The Commission agrees with Silverman's assessment that the rules the Commission adopts today are, in large part, extensions of the equipment upgrades for the transition to CAP alerting which began in 2012, and therefore the costs will not significantly impact small entities. With respect to Underhill's comments, the Commission does not currently have a statutory funding mechanism in place to make grants to smaller broadcasters for the purpose of seeking to comply with the Commission's EAS rules or as a general fund. The Commission encourages small entities needing funds to seek grants that may be available from other funding sources, including the U.S. Department of Commerce's National Telecommunications and Information Administration or the Corporation for Public Broadcasting.

62. Pursuant to the Small Business Jobs Act of 2010, which amended the RFA, the Commission is required to respond to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA), and to provide a detailed statement of any change made to the proposed rules as a result of those comments.

63. The Chief Counsel did not file any comments in response to the proposed rules in this proceeding.

64. The RFA directs agencies to provide a description of and, where feasible, an estimate of, the number of small entities that may be affected by the rules, adopted herein. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.

65. Small entities are among the current EAS Participants which include 17,521 radio broadcasters and 8,133 other participants, including television broadcasters, cable operators, satellite operators, and other businesses in the industry segments discussed below, that are impacted by the changes adopted in today's Order.

66. Small Businesses, Small Organizations, and Small Governmental Jurisdictions. The Commission's actions may, over time, affect small entities that are not easily categorized at present. The Commission therefore describes here, at the outset, three broad groups of small entities that could be directly affected herein. First, while there are industry specific size standards for small businesses that are used in the regulatory flexibility analysis, according to data from the SBA's Office of Advocacy, in general a small business is an independent business having fewer than 500 employees. These types of small businesses represent 99.9% of all businesses in the United States which translates to 32.5 million businesses.

67. Next, the type of small entity described as a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Internal Revenue Service (IRS) uses a revenue benchmark of $50,000 or less to delineate its annual electronic filing requirements for small exempt organizations. Nationwide, for tax year 2020, there were approximately 447,689 small exempt organizations in the U.S. reporting revenues of $50,000 or less according to the registration and tax data for exempt organizations available from the IRS.

68. Finally, the small entity described as a “small governmental jurisdiction” is defined generally as “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” U.S. Census Bureau data from the 2017 Census of Governments indicate that there were 90,075 local governmental jurisdictions consisting of general purpose governments and special purpose governments in the United States. Of this number there were 36,931 General purpose governments (county, municipal and town or township) with populations of less than 50,000 and 12,040 special purpose governments—independent school districts with enrollment of less than 50,000. Accordingly, based on the 2017 U.S. Census of Governments data, the Commission estimates that at least 48,971 entities fall into the category of “small governmental jurisdictions.”

69. Radio Stations. This industry is comprised of “establishments primarily engaged in broadcasting aural programs by radio to the public.” Programming may originate in their own studio, from an affiliated network, or from external sources. The SBA small business size standard for this industry classifies firms having $41.5 million or less in annual receipts as small. U.S. Census Bureau data for 2017 show that 2,963 firms operated in this industry during that year. Of this number, 1,879 firms operated with revenue of less than $25 million per year. Based on this data and the SBA's small business size standard, the Commission estimates a majority of such entities are small entities.

70. The Commission estimates that as of March 31, 2022, there were 4,508 licensed commercial AM radio stations and 6,763 licensed commercial FM radio stations, for a combined total of 11,271 commercial radio stations. Of this total, 11,269 stations (or 99.98%) had revenues of $41.5 million or less in 2021, according to Commission staff review of the BIA Kelsey Inc. Media Access Pro Database (BIA) on June 1, 2022, and therefore these licensees qualify as small entities under the SBA definition. In addition, the Commission estimates that as of March 2022, there were 4,119 licensed noncommercial (NCE) FM radio stations, 2,049 low power FM (LPFM) stations, and 8,919 FM translators and boosters. The Commission however does not compile, and otherwise does not have access to financial information for these radio stations that would permit it to determine how many of these stations qualify as small entities under the SBA small business size standard. Nevertheless, given the SBA's large annual receipts threshold for this industry and the nature of radio station licensees, the Commission presumes that all of these entities qualify as small entities under the above SBA small business size standard.

71. The Commission notes, however, that in assessing whether a business concern qualifies as “small” under the above definition, business (control) affiliations must be included. The Commission's estimate, therefore, likely overstates the number of small entities that might be affected by the Commission's action, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. In addition, another element of the definition of “small business” requires that an entity not be dominant in its field of operation. The Commission is unable at this time to define or quantify the criteria that would establish whether a specific radio or television broadcast station is dominant in its field of operation. Accordingly, the estimate of small businesses to which the rules may apply does not exclude any radio or television station from the definition of a small business on this basis and is therefore possibly over-inclusive. An additional element of the definition of “small business” is that the entity must be independently owned and operated. Because it is difficult to assess these criteria in the context of media entities, the estimate of small businesses to which the rules may apply does not exclude any radio or television station from the definition of a small business on this basis and similarly may be over-inclusive.

72. FM Translator Stations and Low Power FM Stations. FM translators and Low Power FM Stations are classified in the industry for Radio Stations. The Radio Stations industry comprises establishments primarily engaged in broadcasting aural programs by radio to the public. Programming may originate in their own studio, from an affiliated network, or from external sources. The SBA small business size standard for this industry classifies firms having $41.5 million or less in annual receipts as small. U.S. Census Bureau data for 2017 show that 2,963 firms operated during that year. Of that number, 1,879 firms operated with revenue of less than $25 million per year. Therefore, based on the SBA's size standard the Commission concludes that the majority of FM Translator stations and Low Power FM Stations are small. Additionally, according to Commission data, as of March 31, 2022, there were 8,919 FM Translator Stations and 2,049 Low Power FM licensed broadcast stations. The Commission however does not compile and otherwise does not have access to information on the revenue of these stations that would permit it to determine how many of the stations would qualify as small entities. For purposes of this regulatory flexibility analysis, the Commission presumes the majority of these stations are small entities.

73. Television Broadcasting. This industry is comprised of “establishments primarily engaged in broadcasting images together with sound.” These establishments operate television broadcast studios and facilities for the programming and transmission of programs to the public. These establishments also produce or transmit visual programming to affiliated broadcast television stations, which in turn broadcast the programs to the public on a predetermined schedule. Programming may originate in their own studio, from an affiliated network, or from external sources. The SBA small business size standard for this industry classifies businesses having $41.5 million or less in annual receipts as small. 2017 U.S. Census Bureau data indicate that 744 firms in this industry operated for the entire year. Of that number, 657 firms had revenue of less than $25,000,000. Based on this data the Commission estimates that the majority of television broadcasters are small entities under the SBA small business size standard.

74. The Commission estimates that as of March 31, 2022, there were 1,373 licensed commercial television stations. Of this total, 1,280 stations (or 93.2%) had revenues of $41.5 million or less in 2021, according to Commission staff review of the BIA Kelsey Inc. Media Access Pro Television Database (BIA) on June 1, 2022, and therefore these licensees qualify as small entities under the SBA definition. In addition, the Commission estimates as of March 31, 2022, there were 384 licensed noncommercial educational (NCE) television stations, 383 Class A TV stations, 1,840 LPTV stations and 3,231 TV translator stations. The Commission however does not compile, and otherwise does not have access to financial information for these television broadcast stations that would permit it to determine how many of these stations qualify as small entities under the SBA small business size standard. Nevertheless, given the SBA's large annual receipts threshold for this industry and the nature of television station licensees, the Commission presumes that all of these entities qualify as small entities under the above SBA small business size standard.

75. Cable and Other Subscription Programming. The U.S. Census Bureau defines this industry as establishments primarily engaged in operating studios and facilities for the broadcasting of programs on a subscription or fee basis. The broadcast programming is typically narrowcast in nature ( e.g., limited format, such as news, sports, education, or youth-oriented). These establishments produce programming in their own facilities or acquire programming from external sources. The programming material is usually delivered to a third party, such as cable systems or direct-to-home satellite systems, for transmission to viewers. The SBA small business size standard for this industry classifies firms with annual receipts less than $41.5 million as small. Based on U.S. Census Bureau data for 2017, 378 firms operated in this industry during that year. Of that number, 149 firms operated with revenue of less than $25 million a year and 44 firms operated with revenue of $25 million or more. Based on this data, the Commission estimates that a majority of firms in this industry are small.

76. Cable System Operators (Telecom Act Standard). The Communications Act of 1934, as amended, contains a size standard for small cable system operators, which classifies “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than one percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000,” as small. For purposes of the Telecom Act Standard, the Commission determined that a cable system operator that serves fewer than 677,000 subscribers, either directly or through affiliates, will meet the definition of a small cable operator based on the cable subscriber count established in a 2001 Public Notice. Based on industry data, only six cable system operators have more than 677,000 subscribers. Accordingly, the Commission estimates that the majority of cable system operators are small under this size standard. The Commission notes however, that the Commission neither requests nor collects information on whether cable system operators are affiliated with entities whose gross annual revenues exceed $250 million. Therefore, the Commission is unable at this time to estimate with greater precision the number of cable system operators that would qualify as small cable operators under the definition in the Communications Act.

77. Cable Companies and Systems (Rate Regulation). The Commission has developed its own small business size standard for the purpose of cable rate regulation. Under the Commission's rules, a “small cable company” is one serving 400,000 or fewer subscribers nationwide. Based on industry data, there are about 420 cable companies in the U.S. Of these, only seven have more than 400,000 subscribers. In addition, under the Commission's rules, a “small system” is a cable system serving 15,000 or fewer subscribers. Based on industry data, there are about 4,139 cable systems (headends) in the U.S. Of these, about 639 have more than 15,000 subscribers. Accordingly, the Commission estimates that the majority of cable operators are small.

78. Satellite Telecommunications. This industry comprises firms “primarily engaged in providing telecommunications services to other establishments in the telecommunications and broadcasting industries by forwarding and receiving communications signals via a system of satellites or reselling satellite telecommunications.” Satellite telecommunications service providers include satellite and earth station operators. The SBA small business size standard for this industry classifies a business with $35 million or less in annual receipts as small. U.S. Census Bureau data for 2017 show that 275 firms in this industry operated for the entire year. Of this number, 242 firms had revenue of less than $25 million. Additionally, based on Commission data in the 2021 Universal Service Monitoring Report, as of December 31, 2020, there were 71 providers that reported they were engaged in the provision of satellite telecommunications services. Of these providers, the Commission estimates that approximately 48 providers have 1,500 or fewer employees. Consequently using the SBA's small business size standard, a little more than 80 percent of these providers can be considered small entities.

79. All Other Telecommunications. This industry is comprised of establishments primarily engaged in providing specialized telecommunications services, such as satellite tracking, communications telemetry, and radar station operation. This industry also includes establishments primarily engaged in providing satellite terminal stations and associated facilities connected with one or more terrestrial systems and capable of transmitting telecommunications to, and receiving telecommunications from, satellite systems. Providers of internet services ( e.g., dial-up ISPs) or voice over internet protocol (VoIP) services, via client-supplied telecommunications connections are also included in this industry. The SBA small business size standard for this industry classifies firms with annual receipts of $35 million or less as small. U.S. Census Bureau data for 2017 show that there were 1,079 firms in this industry that operated for the entire year. Of those firms, 1,039 had revenue of less than $25 million. Based on this data, the Commission estimates that the majority of “All Other Telecommunications” firms can be considered small.

80. Broadband Radio Service and Educational Broadband Service. Broadband Radio Service systems, previously referred to as Multipoint Distribution Service (MDS) and Multichannel Multipoint Distribution Service (MMDS) systems, and “wireless cable,” transmit video programming to subscribers and provide two-way high speed data operations using the microwave frequencies of the Broadband Radio Service (BRS) and Educational Broadband Service (EBS) (previously referred to as the Instructional Television Fixed Service (ITFS)). Wireless cable operators that use spectrum in the BRS often supplemented with leased channels from the EBS, provide a competitive alternative to wired cable and other multichannel video programming distributors. Wireless cable programming to subscribers resembles cable television, but instead of coaxial cable, wireless cable uses microwave channels.

81. In light of the use of wireless frequencies by BRS and EBS services, the closest industry with a SBA small business size standard applicable to these services is Wireless Telecommunications Carriers ( except Satellite). The SBA small business size standard for this industry classifies a business as small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show that there were 2,893 firms that operated in this industry for the entire year. Of this number, 2,837 firms employed fewer than 250 employees. Thus under the SBA size standard, the Commission estimates that a majority of licensees in this industry can be considered small.

82. According to Commission data as of December 2021, there were approximately 5,869 active BRS and EBS licenses. The Commission's small business size standards with respect to BRS involves eligibility for bidding credits and installment payments in the auction of licenses for these services. For the auction of BRS licenses, the Commission adopted criteria for three groups of small businesses. A very small business is an entity that, together with its affiliates and controlling interests, has average annual gross revenues exceed $3 million and did not exceed $15 million for the preceding three years, a small business is an entity that, together with its affiliates and controlling interests, has average gross revenues exceed $15 million and did not exceed $40 million for the preceding three years, and an entrepreneur is an entity that, together with its affiliates and controlling interests, has average gross revenues not exceeding $3 million for the preceding three years. Of the ten winning bidders for BRS licenses, two bidders claiming the small business status won 4 licenses, one bidder claiming the very small business status won three licenses and two bidders claiming entrepreneur status won six licenses. One of the winning bidders claiming a small business status classification in the BRS license auction has an active license as of December 2021.

83. The Commission's small business size standards for EBS define a small business as an entity that, together with its affiliates, its controlling interests and the affiliates of its controlling interests, has average gross revenues that are not more than $55 million for the preceding five (5) years, and a very small business is an entity that, together with its affiliates, its controlling interests and the affiliates of its controlling interests, has average gross revenues that are not more than $20 million for the preceding five (5) years. In frequency bands where licenses were subject to auction, the Commission notes that as a general matter, the number of winning bidders that qualify as small businesses at the close of an auction does not necessarily represent the number of small businesses currently in service. Further, the Commission does not generally track subsequent business size unless, in the context of assignments or transfers, unjust enrichment issues are implicated. Additionally, since the Commission does not collect data on the number of employees for licensees providing these services, at this time the Commission is not able to estimate the number of licensees with active licenses that would qualify as small under the SBA's small business size standard.

84. Direct Broadcast Satellite (“DBS”) Service. DBS service is a nationally distributed subscription service that delivers video and audio programming via satellite to a small parabolic “dish” antenna at the subscriber's location. DBS is included in the Wired Telecommunications Carriers industry which comprises establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or combination of technologies. Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of services, such as wired telephony services, including VoIP services, wired (cable) audio and video programming distribution; and wired broadband internet services. By exception, establishments providing satellite television distribution services using facilities and infrastructure that they operate are included in this industry.

85. The SBA small business size standard for Wired Telecommunications Carriers classifies firms having 1,500 or fewer employees as small. U.S. Census Bureau data for 2017 show that 3,054 firms operated in this industry for the entire year. Of this number, 2,964 firms operated with fewer than 250 employees. Based on this data, the majority of firms in this industry can be considered small under the SBA small business size standard. According to Commission data however, only two entities provide DBS service—DIRECTV (owned by AT&T) and DISH Network, which require a great deal of capital for operation. DIRECTV and DISH Network both exceed the SBA size standard for classification as a small business. Therefore, the Commission must conclude based on internally developed Commission data, in general DBS service is provided only by large firms.

86. Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing. This industry comprises establishments primarily engaged in manufacturing radio and television broadcast and wireless communications equipment. Examples of products made by these establishments are: transmitting and receiving antennas, cable television equipment, GPS equipment, pagers, cellular phones, mobile communications equipment, and radio and television studio and broadcasting equipment. The SBA small business size standard for this industry classifies businesses having 1,250 employees or less as small. U.S. Census Bureau data for 2017 show that there were 656 firms in this industry that operated for the entire year. Of this number, 624 firms had fewer than 250 employees. Thus, under the SBA size standard, the majority of firms in this industry can be considered small.

87. The Order does not impose new and/or additional reporting or record keeping requirements, however as proposed in the Notices, the Order imposes additional compliance obligations on certain small, as well as other, entities that distribute EAS alerts and manufacture EAS equipment that process such alerts.

88. Specifically, the Commission adopts a mandatory CAP polling rule that requires EAS Participants, when they receive a state or local legacy EAS alert, to poll the IPAWS CAP EAS server to confirm whether there is a CAP version of that alert and use the CAP version. EAS Participants must poll the IPAWS CAP EAS Feed for a CAP version of the received legacy alert at least 10 seconds after detection of the legacy alert's initial header code for a legacy state or local alert that, (i) is valid, (ii) covers a type of event and a geographic area for which the EAS Participant normally transmits alerts to the public and (iii) is not a duplicate of a CAP-formatted message it has already received.

89. The Commission also adopts changes to three EAS code text descriptions that EAS Participants must implement within one-year of the effective date of the Order. These changes impact for PEP code, EAN code, and NPT codes, but do not change the three-letter codes themselves. The Order changes the PEP code description from “Primary Entry Point” to “United States Government,” and changes the EAN code description from “Emergency Action Notification” to “National Emergency Message,” and the NPT event code description from “National Periodic Test” to “Nationwide Test of the Emergency Alert System.” Additionally, the Commission requires a separate, longer prepared visual script for the NPT during legacy-based nationwide EAS test alerts. and deletes the NIC code from the EAS.

90. All of these changes require EAS equipment manufacturers to develop software updates in deployed EAS equipment and EAS equipment in production. Separately, the CAP polling change, the NPT code description change, and the NPT script addition will each also require EAS participants, particularly cable operators, to conduct testing and make modifications to downstream equipment used to process alerts, such as set-top boxes. The EAN code description change will also require EAS participants, particularly cable operators, to replace certain downstream equipment used to process the EAN, such as set-top boxes. In addition, since some deployed EAS encoder equipment might not be capable of being updated to reflect the new requirements, those devices will have to be replaced.

91. The primary costs associated with the rules the Commission adopts in the Order involve creating and installing software into EAS encoder devices, testing and modifying downstream network processing equipment, and replacing certain downstream processing equipment. In the Notices, the Commission requested cost estimates from the parties on the proposals adopted in today's proceeding but did not receive any. Therefore, the Commission cannot quantify the cost of compliance for small entities. The Commission assesses that small entities will need to have their EAS decoder equipment updated by manufacturers to implement the requirements adopted in the Order. However, based on past EAS equipment updates where the Commission adopted changes adding new EAS event codes, the Commission believes the cost of compliance with the rule changes adopted in the Order for most affected industries, will not significantly exceed the costs of software updates that most EAS Participants would need to implement whether or not these rule changes are adopted. Moreover, the Commission further believes that the cost of implementing the required EAS decoder equipment changes will be roughly in line with the cost of changes adopted in the 2016 Weather Alerts Order and the 2017 Blue Alerts Order, which similarly entailed few costs beyond the reprogramming of EAS decoder equipment. Consequently, the Commission estimates the costs of all decoder software updates needed to implement the rule changes adopted in the Order, most of which according to commenters in the proceeding can be bundled with “normally scheduled software releases” and performed at the same time, will cost a total of $5 million for the industry. Additionally, small entities that have complied with previous EAS code changes have the experience, and should have the processes and procedures in place to facilitate compliance resulting in minimal incremental costs to comply with the changes in the Order.

92. With regard to four of the six changes cable operators have identified (CAP polling, EAN text, NPT text, and NPT script) as requiring testing, modification, and/or replacement of downstream equipment in cable operators' networks, the Commission believes small and other cable operators will realize significant cost savings from conducting testing and downstream equipment modification in a coordinated fashion for all of these changes on the same one-year schedule, and these costs are included in the $5 million cost ceiling. Further, since the Commission has allowed cable operators the additional time to replace set-top boxes with new equipment that no longer have the EAN label hard-wired into them which should make it possible for operators to incorporate such a specification into the new devices that will be installed in consumers' premises in the ordinary course of business irrespective of this requirement, in most instances, the Commission estimates the additional costs that small and other cable operators will incur to replace set-top boxes to implement this requirement over the extended six-year period following the effective date of this order should not exceed $4.4 million.

93. The Commission believes these changes adopted in the Order impose minor costs for small and other entities, when compared to the substantial public safety improvements reflected in the record. While as a general matter, it is impossible to quantify the precise dollar value of improvements to the public's safety, life, and health, the value of these changes are likely to substantially exceeds the overall cost of their implementation. Thus, the Commission further believes that the value of improved public safety in reducing risk of avoidable deaths and injuries by better informing the public of pending emergencies is substantial, and outweighs the costs of the EAS changes adopted in the Order.

94. The RFA requires an agency to provide, a description of the steps the agency has taken to minimize the significant economic impact on small entities . . . including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant alternatives to the rule considered by the agency which affect the impact on small entities was rejected.

95. The actions taken by the Commission in the Order are intended to be minimally costly and minimally burdensome for small and other entities impacted by the rules. As such, the Commission does not expect the adopted requirements to have a significant economic impact on small entities. Below the Commission discusses actions the Commission takes in the Order to minimize any significant economic impact on small entities and some alternatives that were considered.

96. Adopting A Mandatory CAP Polling and CAP Message Prioritizing Requirement. The Commission considered but declined to adopt proposals by commenters not to implement a CAP polling requirement and to make CAP message prioritizing optional within the discretion of each EAS Participant. These alternatives were not supported by any factual information, were not justifiable because of the current unavailability of National Weather Service (NWS) alerts in CAP format and were premised on an erroneous assumption that the Commission would adopt a uniform polling requirement for all EAS Participants. The Commission concluded that the potential benefits to public safety of increased CAP usage for non-weather related state and local emergency alerts should not be foreclosed because NWS alerts are not included. Moreover, the Commission has included sufficient flexibility in its requirements to account for unique factors affecting EAS Participants.

97. The Commission also considered but declined to grant radio broadcasters an exception from its CAP prioritization mandate. There are various reasons why radio broadcasters, like video service EAS Participants, should be required to distribute CAP messages rather than legacy-formatted messages wherever possible. Indeed, the Commission identifies various reasons why radio broadcasters, like video service EAS Participants, should be required to distribute CAP messages rather than legacy-formatted messages wherever possible, including but not limited to the fact that there are digital radio broadcasters that produce visual alerts to digital radio receivers; the use of text-to-speech has been standardized in EAS equipment and systems for over 12 years and it is routinely used and supported today and the audio generated from a CAP alert, whether from text-to-speech or from airing a CAP audio file, typically is superior in clarity and quality to that contained in a legacy alert.

98. Changing the Three-Letter EAS Codes. The Commission has declined to adopt its Notice proposals to change the three-letter codes for PEP to NAT and for EAN to NEM, which would have created both increased decoder costs and substantial downstream network equipment replacement costs for small entities and other EAS Participants. Similarly, the three-letter event code for the NPT will remain the same, which the Commission believes will also minimize the compliance burdens borne by EAS Participants. Changing only the definitions of these codes, as the Order does, achieves the public benefit of more comprehensible alerts, whereas changing the three-letter codes themselves does not further the goal of averting public confusion because the public does not see the three-letter codes on their screens or hear them pronounced in audio, and similarly the three-letter codes are not seen by EAS participants. Rather, the three-letter code acronyms are computer code designed to transmit specific instructions for different alerts and to instruct EAS equipment to generate different outputs based on the codes. By leaving the codes as-is, the Order avoids substantial compliance costs that small entities would have otherwise faced.

99. Timing of Compliance. The Commission has adopted a consolidated compliance schedule allowing a full year from the effective date of the Order for entities to comply with all regulatory changes adopted in the Order, instead of requiring multiple compliance timeframes (with two exceptions discussed in the following paragraph). This approach is consistent with the Commission's past orders requiring EAS encoder software updates and will save small entities significant costs, as production and labor to make the necessary EAS encoder equipment changes can be done with a single software installation instead of multiple installations in different years and on different compliance timetables. The consolidated compliance schedule, which establishes a single deadline for compliance with multiple similar changes, also means that downstream equipment field testing and modifications can often be conducted at the same time, saving small as well as other entities the cost of scheduling additional separate field tests and upgrades at different times in different years.

100. The exceptions to the one year compliance requirement provide a six year compliance deadline for cable operators to replace downstream equipment to comply with the EAN descriptive text change, and fifteen months for downstream equipment EAN software updates. These implementation extensions will substantially reduce costs for small entities, as set-top boxes can be replaced in the ordinary course of business per the normal lifecycle of this equipment, instead of requiring a large scale replacement of set-top boxes for compliance on a nearer term schedule. Accordingly, the marginal cost of compliance with the change to EAN text displayed to the public will be substantially reduced for small and all other cable operators entities including small entities.

101. Legacy Script Change Exemption. The Commission exempted radio broadcasters from compliance with the NPT legacy script change. The Commission did not find that the potential marginal benefit of applying the legacy script requirement to all radio broadcasters was justified when the vast majority of radio broadcasters will not produce increased alert clarity as a result of such a requirement. This exemption will reduce costs for small and other radio broadcaster entities. Moreover, since radio broadcasters in particular make up the largest category of EAS Participants by number of entities, lessening costs for this category of EAS participants should minimize the economic impact for a substantial number of small entities.

102. Implementation. The Commission does not mandate how EAS equipment must be designed in order to comply with the rule changes adopted in the Order and will use performance standards rather than design standards to measure compliance. EAS Participants will be in compliance with the required changes as long as their EAS equipment performs the CAP polling within the specified time frame, and ensures the new code descriptive text or script is displayed to the public. Leaving the equipment modification decisions up to the industry provides small and other affected EAS Participants the flexibility to make decisions and adopt approaches that are technically and financially feasible for their businesses.

103. Persistent Alerts. The Commission has declined to adopt a new persistent alerting requirement in light of the record which establishes that requiring equipment updates and network changes necessary to implement this rule will introduce excessive costs to EAS Participants that are difficult to justify given the complexity and design burdens associated with their adoption. The Commission was not persuaded that implementing persistent alerts would be technically feasible in the context of the basic design of the EAS, and note that there was virtually unanimous opposition to this proposal by commenting parties, including alert originators, SECCs, EAS Participants, and equipment manufacturers. Further, adopting a persistent alerting requirement would have resulted in substantial equipment modifications or replacements for all affected small and other entities, and could have led to significant problems and disruptions to the overall EAS system. Such events, which would result in even greater costs in the form of fixing later-arising problems or malfunctions, and would have further increased costs for all EAS Participants and been detrimental to EAS operations and potentially to the public.

104. The Commission will send a copy of the Report and Order, including this FRFA, in a report to Congress pursuant to the Congressional Review Act. In addition, the Commission will send a copy of the Report and Order, including this FRFA, to the Chief Counsel for Advocacy of the SBA.

105. This document does not contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA). In addition, therefore, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002.

106. The Commission has determined, and the Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget, concurs, that this rule is non-major under the Congressional Review Act, 5 U.S.C. 804(2). The Commission will send a copy of this Report and Order to Congress and the Government Accountability Office pursuant to 5 U.S.C. 801(a)(1)(A).

The material referenced in the regulatory text was approved for incorporation by reference on April 23, 2012, and no changes are made in this final rule.

107. Accordingly, it is ordered that, pursuant to 47 U.S.C. 151, 152, 154(i), 154(o), 301, 303(r), 303(v), 307, 309, 335, 403, 544(g), 606, 613, 1201, 1202(a), (b), (c), (f), 1203, 1204 and 1206, that the foregoing Report and Order is adopted, and the Commission's rules are hereby amended, as set forth in Appendix A of the Report & Order.

108. It is further ordered that that 47 U.S.C. part 11 is amended, as set forth below, and that this Report and Order, including the amended rules, shall be effective December 12, 2022.

109. It is further ordered that the Office of the Managing Director, Performance Evaluation and Records Management, shall send a copy of this Report & Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A).

110. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of the Report and Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 11 as follows:

This document announces that OMB approved the information collection requirements in §§ 64.1204(a) and 64.1606(a) on November 16, 2021.

The Commission publishes this document as an announcement of the compliance date of the rules. If you have any comments on the burden estimates listed below, or how the Commission can improve the collections and reduce any burdens caused thereby, please contact Nicole Ongele, Federal Communications Commission, 45 L Street NE, Washington, DC 20554, regarding OMB Control Number 3060-1296. Please include the applicable OMB Control Number in your correspondence. The Commission will also accept your comments via email at PRA@fcc.gov.

To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the FCC is notifying the public that it received final OMB approval on November 16, 2021, for the information collection requirements contained in §§ 64.1204(a) and 64.1606(a). Under 5 CFR part 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number.

No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number.

The foregoing notice is required by the Paperwork Reduction Act of 1995, Public Law 104-13, October 1, 1995, and 44 U.S.C. 3507.

The total annual reporting burdens and costs for the respondents are as follows:

OMB Control Number: 3060-1296.

OMB Approval Date: November 16, 2021.

OMB Expiration Date: November 30, 2024.

Title: Private Entity Robocall and Spoofing Information Submission Portal, FCC Form 5642.

Form Number: FCC Form 5642.

Type of Review: New collection.

Respondents: Business or other for-profit entities, and not for profit institutions.

Number of Respondents and Responses: 50 respondents; 50 responses.

Estimated Time per Response: 1 hour.

Frequency of Response: On occasion reporting requirement; third party

Obligation to Respond: Voluntary. Statutory authority is contained in the TRACED Act section 10(a).

Total Annual Burden: 50 hours.

Total Annual Cost: No Cost.

Privacy Impact Assessment: No impact(s).

Nature and Extent of Confidentiality: Assurances of confidentiality are provided to the respondents; however, respondents are made aware that their submissions may be shared with the Department of Justice, Federal Trade Commission, other Federal agencies combatting robocalls, state attorney general offices, other law enforcement entities with which the Commission has information sharing agreements, and the registered traceback consortium.

Needs and Uses: Section 10(a) of the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (TRACED Act) directs the Commission to establish regulations to create a process that “streamlines the ways in which a private entity may voluntarily share with the Commission information relating to” a call or text message that violates prohibitions regarding robocalls or spoofing set forth section 227(b) and 227(e) of the Communications Act of 1934, as amended. On June 17, 2021, the Commission adopted a Report and Order to implement section 10(a) by creating an online portal located on the Commission's website where private entities may submit information about robocall and spoofing violations. The Enforcement Bureau (Bureau) will manage this portal.

A private entity is any entity other than (1) an individual natural person or (2) a public entity. A public entity is any governmental organization at the Federal, state, or local level. Thus, the portal is not intended for individual consumers who already have a mechanism to submit robocall or spoofing complaints via the Commission's informal complaint process.

The portal requests private entities to submit certain minimum information including, but not necessarily limited to, the name of the reporting private entity, contact information, including at least one individual name and means of contacting the entity ( e.g., a phone number), the caller ID information displayed, the phone number(s) called, the date(s) and time(s) of the relevant calls or texts, the name of the reporting private entity's service provider, and a description of the problematic calls or texts. Although the portal does not reject submissions that fail to include the above information, such failure makes it more difficult for the Bureau to investigate fully and take appropriate enforcement action. Once submitted, the Bureau will review to determine whether the information presents evidence of a violation of the Commission's rules. The Bureau may share submitted information with the Department of Justice, Federal Trade Commission, other Federal agencies combatting robocalls, state attorney general offices, other law enforcement entities with which the Commission has information sharing agreements, and the registered traceback consortium.

This document also removes §§ 64.1204(c) and 64.1606(c) of the Commission's rules, which advised that compliance with §§ 64.1204(a) and 64.1606(a) was not required until OMB approval was obtained.

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 64 as follows.

This document announces that the Office of Management and Budget (OMB) approved the information collection requirements in 47 CFR 73.316 and 73.1690 on October 13, 2022. These rule sections were adopted in the FM Broadcast Directional Antenna Performance Verification Order, FCC 22-38 (87 FR 35426 (June 10, 2022)). The Commission publishes this document as an announcement of the effective date for these amended rules.

If you have any comments on the burden estimates listed below, or how the Commission can improve the collections and reduce any burdens caused thereby, please contact Cathy Williams, Federal Communications Commission, Room 3.317, 45 L Street NE, Washington, DC 20554, regarding OMB Control Numbers 3060-0506 and 3060-0938. Please include the OMB Control Number in your correspondence. The Commission will also accept your comments via email at PRA@fcc.gov .

To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the Commission is notifying the public that it received final OMB approval on October 13, 2022, for the information collection requirements contained in 47 CFR 73.316 and 73.1690. Under 5 CFR part 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number.

No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. The OMB Control Numbers for the information collection requirements in 47 CFR 73.316 and 73.1690 are 3060-0506 and 3060-0938.

The foregoing notice is required by the Paperwork Reduction Act of 1995, Public Law 104-13, October 1, 1995, and 44 U.S.C. 3507.

The total annual reporting burdens and costs for the respondents are as follows:

OMB Control Number: 3060-0506.

Title: FCC Form 2100, Schedule 302-FM—FM Station License Application.

Form Number: FCC Form 2100, Schedule 302-FM.

Respondents: Business or other for-profit entities; Not-for-profit institutions.

Number of Respondents and Responses: 925 respondents; 925 responses.

Estimated Time per Response: 1-2 hours.

Frequency of Response: On occasion reporting requirement.

Total Annual Burden: 3,135 hours.

Total Annual Costs: $801,500.

Obligation To Respond: Required to obtain or retain benefits. The statutory authority for this collection of information is contained in Sections 154(i), 303 and 308 of the Communications Act of 1934, as amended.

Needs and Uses: In the FM Broadcast Directional Antenna Performance Verification Order, FCC 22-38, adopted May 19, 2022, and released on May 19, 2022, the Commission revised its FM broadcast rules and procedures to allow for FM antenna directional pattern verification by computer modeling. This represents an update from the previous requirement that an FM or LPFM directional antenna's performance be verified by the “measured relative field pattern” and brings our rules for those services into regulatory conformity with our rules governing AM and digital TV (DTV) directional antennas. The Commission expects that this change in how the antenna manufacturer may validate its FM directional antenna studies will provide an FM license applicant with greater flexibility in antenna siting and reduce the overall costs of designing and building an FM directional antenna, and station construction.

Specifically, pertaining to this Information Collection and full-service FM stations, the Commission revises the relevant rules, 47 CFR 73.316 and 73.1690, and corresponding instructions to the FM license application, as follows:

Gives an FM license applicant that employs a directional antenna the option of submitting computer-generated proofs of the FM directional antenna pattern prepared by the antenna's manufacturer, in lieu of measured pattern plots and tabulations derived from physical full-size or scale model antenna mockups.

In § 73.316, specifies the information required in a license application filed for a station using an FM directional antenna, which opts to use computer modeling pattern verification. For example, the license application must include a statement from the engineer responsible for designing the antenna, performing the modeling, and preparing the antenna manufacturer's instructions for installation of the antenna, that identifies and describes the software used to create the computer model, the software tool(s) used in the modeling and the procedures applied in using the software. The statement should describe all radiating structures included in the model. It must also include a certification that the software executed normally without generating error messages or warnings.

Requires that, the first time the directional pattern of a particular model of antenna is verified using computer results, the broadcast station must submit to the Commission both the results of the computer modelling and the measurements of either a full-size or scale model of the antenna or elements thereof, demonstrating a reasonable correlation between the measurements achieved and the computer model results. Once a particular antenna model or series of elements has been verified, subsequent applicants using the same antenna model number or elements and the same modeling software may cross-reference the original submission by providing the application file number.

The revisions to the relevant rules and corresponding Schedule 302-FM instructions listed above may potentially affect the substance, burden hours, and costs of completing the Schedule 302-FM. Therefore, this submission was made to OMB for approval of the revised Information Collection requirements.

OMB Control Number: 3060-0938.

Title: Form 2100, Schedule 319—Low Power FM Station License Application.

Form Number: FCC Form 2100, Schedule 319.

Respondents: Not-for-profit institutions, State, local, or Tribal Government.

Number of Respondents and Responses: 200 respondents and 200 responses.

Estimated Time per Response: 1 hour.

Frequency of Response: On occasion reporting requirement.

Total Annual Burden: 200 hours.

Total Annual Cost: $27,500.

Obligation to Respond: Required to obtain or retain benefits. The statutory authority for this collection of information is contained in Sections 154(i), 303 and 308 of the Communications Act of 1934, as amended.

Needs and Uses: In the FM Broadcast Directional Antenna Performance Verification Order, FCC 22-38, adopted May 19, 2022, and released on May 19, 2022, the Commission revised its FM broadcast rules and procedures to allow for LPFM antenna directional pattern verification by computer modeling. This represents an update from the previous requirement that an FM or LPFM directional antenna's performance be verified by the “measured relative field pattern” and brings our rules for those services into regulatory conformity with our rules governing AM and DTV directional antennas. The Commission expects that this change in how the antenna manufacturer may validate its LPFM directional antenna studies will provide an LPFM license applicant with greater flexibility in antenna siting and reduce the overall costs of designing and building an LPFM directional antenna, and station construction.

Specifically, pertaining to this Information Collection and LPFM stations, the Commission is revising the relevant rules, 47 CFR 73.316 and 73.1690, and corresponding instructions to the LPFM license application, as follows:

Gives an LPFM license applicant that employs a directional antenna the option of submitting computer-generated proofs of the LPFM directional antenna pattern prepared by the antenna's manufacturer, in lieu of measured pattern plots and tabulations derived from physical full-size or scale model antenna mockups.

In § 73.316, specifies the information required in a license application filed for a station using an LPFM directional antenna, which opts to use computer modeling pattern verification. For example, the license application must include a statement from the engineer responsible for designing the antenna, performing the modeling, and preparing the antenna manufacturer's instructions for installation of the antenna, that identifies and describes the software used to create the computer model, the software tool(s) used in the modeling and the procedures applied in using the software. The statement should describe all radiating structures included in the model. It must also include a certification that the software executed normally without generating error messages or warnings.

Requires that, the first time the directional pattern of a particular model of antenna is verified using computer results, the broadcast station must submit to the Commission both the results of the computer modelling and the measurements of either a full-size or scale model of the antenna or elements thereof, demonstrating a reasonable correlation between the measurements achieved and the computer model results. Once a particular antenna model or series of elements has been verified, subsequent applicants using the same antenna model number or elements and the same modeling software may cross-reference the original submission by providing the application file number.

The revisions to the relevant rules and corresponding Form 2100, Schedule 319 (LPFM License Application) instructions listed above may potentially affect the substance, hours, and costs of completing the Schedule 319 (LPFM License Application). Therefore, this submission was made to OMB for approval of the revised Information Collection requirements.

The Regional Administrator of the Greater Atlantic Regional Office monitors Atlantic herring fishery catch in each Management Area based on vessel and dealer reports, state data, and other available information. Regulations at 50 CFR 648.201(a)(1)(i)(A) require NMFS to implement a 2,000-lb (907.2-kg) possession limit for herring for Area 1A beginning on the date that catch is projected to reach 92 percent of the sub-annual catch limit (ACL) for that area.

Based on vessel reports, dealer reports, and other available information the Regional Administrator projects that the herring fleet will have caught 94 percent of the Area 1A sub-ACL by November 7, 2022. Therefore, effective 00:01 hr local time November 8, 2022, through December 31, 2022, a person may not attempt or do any of the following: Fish for; possess; transfer; purchase; receive; land; or sell more than 2,000 lb of herring per trip or more than once per calendar day in or from Area 1A.

Vessels that enter port before 00:01 hr local time on November 8, 2022, may land and sell more than 2,000 lb (907.2 kg) of herring from Area 1A from that trip, provided that catch is landed in accordance with state management measures. Vessels may transit or land in Area 1A with more than 2,000 lb (907.2 kg) of herring on board, provided that: The herring were caught in an area not subject to a 2,000-lb (907.2-kg) limit; all fishing gear is stowed and not available for immediate use; and the vessel is issued a permit appropriate to the amount of herring on board and the area where the herring was harvested.

Also effective 00:01 hr local time, November 8, 2022, through 24:00 hr local time, December 31, federally permitted dealers may not attempt or do any of the following: Purchase; receive; possess; have custody or control of; sell; barter; trade; or transfer more than 2,000 lb (907.2 kg) of herring per trip or calendar day from Area 1A, unless it is from a vessel that enters port before 00:01 hr local time on November 8, 2022, and catch is landed in accordance with state management measures.

This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.

NMFS finds good cause pursuant to 5 U.S.C. 553(b)(3)(B) to waive prior notice and the opportunity for public comment because it is unnecessary, contrary to the public interest, and impracticable. Ample prior notice and opportunity for public comment has been provided for the required implementation of this action. The requirement to implement this possession limit was developed by the New England Fishery Management Council using public meetings that invited public comment on the measures when they were developed and considered along with alternatives. Further, the regulations requiring NMFS to implement this possession limit also were subject to public notice and opportunity to comment, when they were first adopted in 2014. Herring fishing industry participants monitor catch closely and anticipate potential possession limit adjustments as catch totals approach Area sub-ACLs. The regulation provides NMFS with no discretion and is designed for implementation as quickly as possible to prevent catch from exceeding limits designed to prevent overfishing while allowing the fishery to achieve optimum yield.

The 2022 herring fishing year began on January 1, 2022, and Management Area 1A opened to fishing on July 10, 2022. Data indicating that the herring fleet will have landed at least 92 percent of the 2022 sub-ACL allocated to Area 1A only recently became available. High-volume catch and landings in this fishery can increase total catch relative to the sub-ACL quickly, especially in this fishing year where annual catch limits are unusually low. If implementation of this possession limit adjustment is delayed to solicit prior public comment, the 2022 sub-ACL for Area 1A will likely be exceeded; thereby undermining the conservation objectives of the Herring Fishery Management Plan (FMP). If sub-ACLs are exceeded, the excess must be deducted from a future sub-ACL and would reduce future fishing opportunities. The public expects these actions to occur in a timely way consistent with the FMP's objectives. For the reasons stated above, NMFS also finds good cause to waive the 30-day delayed effectiveness in accordance with 5 U.S.C. 553(d)(3).

The Mid-Atlantic Fishery Management Council (Council) manages the golden tilefish fishery under the Tilefish Fishery Management Plan (FMP), which outlines the Council's process for establishing annual specifications. The FMP requires the Council to recommend acceptable biological catch (ABC), an annual catch limit (ACL), an annual catch target (ACT), total allowable landings (TAL), and other management measures, currently for up to 3 years at a time. The directed commercial fishery is managed under an individual fishing quota (IFQ) program, with small amounts of non-IFQ catch allowed under an incidental permit. Detailed background information regarding the development of the 2022-2024 specifications for this fishery was provided in the proposed rule for this action (87 FR 56393; September 14, 2022), and is not repeated here.

In 2020, the Council set specifications for 2021 and interim specifications for 2022. This action revises the 2022 golden tilefish ABC with a 20-percent increase from the interim 2022 specifications, maintains a constant ABC for 2023, and projects the same ABC for 2024. The 20 percent increase was based on the 2021 management track stock assessment and recommendations from the Scientific and Statistical Committee and Tilefish Monitoring Committee. This action makes no changes to the current recreational bag limit or the commercial/incidental trip limit. NMFS will publish a notice in the Federal Register before the 2024 fishing year notifying the public of the final specifications.

This action modifies the annual specifications process, so that multi-year specifications can be set for up to the maximum number of years needed to be consistent with the Northeast Region Coordinating Council-approved stock assessment schedule. Multi-year regulations have been implemented for all fisheries managed by the Council to relieve some of the administrative demands on the Council and NMFS associated with annual specification requirements. Longer-term specifications also provide greater regulatory consistency and predictability to the fishing sectors. This action provides additional flexibility as specifications could be set to cover the time period until a new golden tilefish stock assessment is available. Stock assessments provide critical information for setting specifications and, in the period between assessments, there often is no new information that would lead to changes to annual specifications. The Council will continue its process of reviewing multi-year specifications each year to determine if any modifications are necessary.

This action changes the fishing year to match the calendar year and starts on January 1. Changing the fishing year to the calendar year will match the period used in the stock assessments and the cost recovery program for the golden tilefish IFQ fishery. The 2022 fishing year, which started on November 1, 2021, will continue through December 31, 2022. The 2022 fishing year would be a 14-month year and IFQ permit holders will receive additional allocation because of the 20-percent increase to the 2022 ABC. IFQ permit holders would start with a new allocation at the start of the 2023 fishing year on January 1, 2023, based on the revised 2023 ABC. The 2023 fishing year, and all subsequent fishing years, will begin on January 1 and end on December 31.

On September 14, 2022, we published a proposed rule (87 FR 56393) requesting comment on the measures in Tilefish Framework Adjustment 7. The comment period was open through September 29, 2022. We received three public comments. One comment was not relevant to this rule.

Comment 1: One commenter supported the administrative changes, but opposed the increased ABC. The commenter noted that a constant harvest strategy is a better approach and avoids, “whiplash” quotas for the fishery.

Response: To account for potential uncertainties in the assessment projections, the Council adopted an Annual Catch Target that is more conservative. This provides stability in the annual specifications and reduce the risk of wide fluctuations in quotas. Maintaining the status quo would have prevented achieving optimum yield based on the most recent assessment information for this stock and would likely have unnecessarily disadvantaged smaller quota shareholders. The small increase implemented in this action balances the need to achieve optimum yield, while still minimizing variability and providing stability for the fishery.

Comment 2: One comment opposed the 8-fish recreational bag limit and recommended a lower bag limit of 4-6 fish as tilefish grow slowly and anglers rarely catch the current limit.

Response: The Monitoring Committee considered changing the bag limit, but opted not to because recreational landings are not included in the stock assessment model and because we did not change the bag limit when the quota dropped a few years ago. The bag limit is expected to help the fishery achieve the quota, and these measures are expected to maintain catch within the quota. The recreational bag limit also has not changed since it was first implemented by Amendment 1. In the final rule for Amendment 1, 8 fish was selected as the upper range of the mean effort in 1996-2005. Since that time, the mean effort numbers have tended to be in the range of 3-4 fish per angler, which indicates the 8-fish bag limit is not generally achieved and reducing it might not result in increased conservation. In addition, the 8-fish limit is valuable to party/charter owners who are trying to attract patrons for these long-duration trips offshore and the potential to take home 8 fish.

The proposed rule inadvertently omitted the amendatory language to update the definition of `Fishing Year' at 50 CFR 648.2 to reflect the corresponding proposed change to the golden tilefish fishing year. This final rule corrects this oversight. There are no other changes from the proposed rule.

Pursuant to section 304(b)(3) of the Magnuson Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), the NMFS Assistant Administrator (AA) has determined that this final rule is consistent with Framework Adjustment 7 to the Tilefish FMP,

There is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effective date and make the rule effective upon filing with the Office of the Federal Register. This rule changes the end of the fishing year to December 31 and extends the 2022 fishing year. Making this rule effective upon filing will allow additional time for IFQ permit holders to fully use the additional quota they will receive as a result of increasing their 2022 allocations. For these reasons, NMFS finds that a 30-day delay in effectiveness would be contrary to the public interest.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification. As a result, a regulatory flexibility analysis was not required and none was prepared.

This final rule contains no information collection requirements under the Paperwork Reduction Act of 1995.

For the reasons set out in the preamble, NMFS amends 50 CFR part 648 as follows:

NMFS manages the groundfish fishery in the BSAI according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The 2022 Atka mackerel ICA for the BS/EAI is 800 metric tons (mt) and the 2022 Atka mackerel total allowable catch allocated to the Amendment 80 cooperative for the BS/EAI is 21,083 mt as established by the final 2022 and 2023 harvest specifications for groundfish in the BSAI (87 FR 11626, March 2, 2022).

The Administrator, Alaska Region, NMFS, has determined that 609 mt of the Atka mackerel ICA for the BS/EAI will not be harvested. Therefore, in accordance with § 679.91(f), NMFS reallocates 609 mt of Atka mackerel from the BS/EAI ICA to the BS/EAI Amendment 80 cooperative allocation in the BSAI. In accordance with § 679.91(f), NMFS will reissue cooperative quota permit for the reallocated Atka mackerel following the procedures set forth in § 679.91(f)(3).

The harvest specifications for Atka mackerel included in the harvest specifications for groundfish in the BSAI (87 FR 11626, March 2, 2022) are revised as follows: 191 mt of Atka mackerel for the BS/EAI ICA and 21,692 mt of Atka mackerel for the Amendment 80 cooperative allocation for the BS/EAI. Table 6 is revised and republished in its entirety as follows:

This will enhance the socioeconomic well-being of harvesters dependent upon Atka mackerel in this area. The Regional Administrator considered the following factors in reaching this decision: (1) the current catch of Atka mackerel ICA in the BS/EAI, (2) the harvest capacity and stated intent on future harvesting patterns of the Amendment 80 cooperative that participates in this BS/EAI fishery.

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR part 679, which was issued pursuant to section 304(b), and is exempt from review under Executive Order 12866.

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest, as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion, and would delay the harvest of Atka mackerel in the BE/EAI fishery. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of November 4, 2022.

The Assistant Administrator for Fisheries, NOAA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice.