A. Background 1. Statutory Authority

Section 104(b)(1)(B) of the Consumer Product Safety Improvement Act (CPSIA), also known as the Danny Keysar Child Product Safety Notification Act, requires the Commission to promulgate consumer product safety standards for durable infant or toddler products. The law requires these standards to be “substantially the same as” applicable voluntary standards or more stringent than the voluntary standards if the Commission concludes that more stringent requirements would further reduce the risk of injury associated with the product.

The CPSIA also sets forth a process for updating CPSC's durable infant or toddler standards when the voluntary standard upon which the CPSC standard was based is changed. Section 104(b)(4)(B) of the CPSIA provides that if an organization revises a standard that has been adopted, in whole or in part, as a consumer product safety standard under this subsection, it shall notify the Commission. In addition, the revised voluntary standard shall be considered to be a consumer product safety standard issued by the Commission under section 9 of the Consumer Product Safety Act (15 U.S.C. 2058), effective 180 days after the date on which the organization notifies the Commission (or such later date specified by the Commission in the Federal Register ) unless, within 90 days after receiving that notice, the Commission notifies the organization that it has determined that the proposed revision does not improve the safety of the consumer product covered by the standard and that the Commission is retaining the existing consumer product safety standard.

On February 29, 2012, the Commission published a final rule issuing a mandatory standard for portable bed rails that incorporated by reference the standard in effect at that time, ASTM F2085-12, Standard Consumer Specification for Portable Bed Rails. 77 FR 12182. The ASTM standard for portable bed rails, ASTM F2085, Standard Consumer Safety Specification for Portable Bed Rails, applies to portable bed rails intended to be installed on an adult bed to prevent children from falling out of bed. These bed rails are intended for children who can get in and out of an adult bed unassisted (typically from 2 to 5 years of age). The standard was codified in the Commission's regulations at 16 CFR part 1224. Since publication of ASTM F2085-12, the current mandatory standard, ASTM has published one revision to ASTM F2085. ASTM F2085-19 was approved and published in November 2019. ASTM officially notified the Commission of this revision on November 22, 2019. The rule is incorporating ASTM F2085-19 as the mandatory standard.

Under section 104(b)(4)(B) of the CPSIA, unless the Commission determines that ASTM's revision of a voluntary standard that is a CPSC mandatory standard “does not improve the safety of the consumer product covered by the standard,” the revised voluntary standard becomes the new mandatory standard. As discussed below, the Commission determines that the changes made in ASTM F2085-19 are neutral with respect to the safety of portable bed rails. Therefore, the Commission will allow the revised voluntary standard to become effective as a mandatory consumer product safety standard under the statute, effective May 20, 2020.

ASTM has published only one revision since the 2012 version. However, in May 2019, ASTM passed a reapproval ballot that made minor editorial revisions. This reapproved standard, ASTM F2085-12R19, included the following changes:

• In section, 1.7 “safety and health” was changed to “safety, health, and environmental.”

• Section 1.8 was added, stating that ASTM developed the standard in accordance with principles recognized by the World Trade Organization.

• Title of D3359 was updated from “Test Methods for Measure Adhesion by Tape Test” to “Test Methods for Rating Adhesion by Tape Test.”

• In subsection 9.3, “san” was changed to “sans” (for “sans serif”).

These changes all constitute minor editorial changes that do not have any impact on the safety of portable bedrails.

In November 2019, ASTM revised ASTM F2085-12R19. The resulting standard, ASTM F2085-19, includes the revisions listed above, as well as the changes below:

• Two of the footnotes that were in Section 7, which provide explanatory information, such as how to measure thickness and the definition of the “indentation load,” have been moved to Notes within the text. Notes and footnotes are both considered to be nonmandatory text, for information only. ASTM's form and style guidelines say that the distinction is that footnotes are meant only for availability information (references, sources of supply) while notes are meant to provide additional (nonmandatory) information. Therefore, the ASTM editor moved the footnotes.

• Changes to unit expressions to bring the standard into accordance with ASTM form and style guidelines. For example, the revision added a repeater unit when expressing a range—1 in. to 2 in., instead of 1 to 2 in.

All of the non-substantive changes made in ASTM F2085-19 are neutral regarding safety for portable bed rails because they are editorial in nature.

The revisions that resulted in ASTM F2085-19 made one substantive change. This change affects test platform 2, which is a standard, twin size, innerspring, thick mattress covered by a sheet. The mattress was chosen to assess the influence of mattress thickness on bedrail performance. The sheet simulates common use patterns. ASTM F2085-12 specified the fiber content of the sheet as a white, 50/50 cotton/polyester blend. Reports from test labs have indicated difficulty sourcing a sheet that is marketed as a 50/50 blend and can be verified to be a 50/50 blend. Test labs requested that the sheet content change to 60/40 cotton/polyester, a blend more consistent with twin sheets on the consumer market, and therefore, easier to source. Before ASTM balloted this change, Engineering Sciences consulted with staff of the Laboratory Sciences Division of Mechanical Engineering (LSM), regarding the availability of 50/50 blend sheets. LSM staff concurred with the difficulty of sourcing a 50/50 blend sheet and reported no objections to the change.

CPSC does not anticipate that the change will affect safety. LSM staff notes that the standard continues to specify the thread count of the sheet as 100 to 300 threads per inch, and staff assesses the thread count range contributes more to friction than the specified change in fiber content. LSM staff has not observed any differences in testing qualitatively. Thus, staff believes that changing the sheet source from a 50/50 blend to a 60/40 blend would not affect how a technician performs the test or alter the results of the testing. Therefore, we conclude that this change is neutral regarding safety while increasing the ease of sourcing the test materials.

The Office of the Federal Register (OFR) has regulations concerning incorporation by reference. 1 CFR part 51. Under these regulations, agencies must discuss, in the preamble to the final rule, ways that the materials the agency incorporates by reference are reasonably available to interested persons and how interested parties can obtain the materials. In addition, the preamble to the final rule must summarize the material. 1 CFR 51.5(b).

In accordance with the OFR's requirements, section A of this preamble summarizes the major provisions of the ASTM F2085-19 standard that the Commission incorporates by reference into 16 CFR part 1224. The standard is reasonably available to interested parties, and interested parties may purchase a copy of the standard from ASTM International, 100 Barr Harbor Drive, P.O. Box C700, West Conshohocken, PA 19428-2959 USA; phone: 610-832-9585; www.astm.org. A copy of the standard can also be inspected at CPSC's Division of the Secretariat, U.S. Consumer Product Safety Commission, Room 820, 4330 East West Highway, Bethesda, MD 20814, telephone 301-504-7923.

Section 14(a) of the CPSA requires that products subject to a consumer product safety rule under the CPSA, or to a similar rule, ban, standard, or regulation under any other act enforced by the Commission, be certified as complying with all applicable CPSC requirements. 15 U.S.C. 2063(a). Such certification must be based on a test of each product, or on a reasonable testing program, or, for children's products, on tests on a sufficient number of samples by a third party conformity assessment body accredited by the Commission to test according to the applicable requirements. As noted, standards issued under section 104(b)(1)(B) of the CPSIA are “consumer product safety standards.” Thus, they are subject to the testing and certification requirements of section 14 of the CPSA.

Because portable bed rails are children's products, samples of these products must be tested by a third party conformity assessment body whose accreditation has been accepted by the Commission. These products also must comply with all other applicable CPSC requirements, such as the lead content requirements in section 101 of the CPSIA, the phthalates prohibitions in section 108 of the CPSIA and 16 CFR part 1307, the tracking label requirement in section 14(a)(5) of the CPSA, and the consumer registration form requirements in section 104(d) of the CPSIA.

In accordance with section 14(a)(3)(B)(iv) of the CPSIA, the Commission has previously published a notice of requirements (NOR) for accreditation of third party conformity assessment bodies for testing portable bed rails (77 FR 31102, May 24, 2012). The NOR provided the criteria and process for our acceptance of accreditation of third party conformity assessment bodies for testing portable bed rails to 16 CFR part 1224. The NORs for all mandatory standards for durable infant or toddler products are listed in the Commission's rule, “Requirements Pertaining to Third Party Conformity Assessment Bodies,” codified at 16 CFR part 1112.

The revision to the test platform 2 provision (Section 7.1.2.1) changes the fiber content and color of the sheet covering the mattress, but does not require a new test or any changes to the test methodology. Testing laboratories that are currently CPSC-accepted, have demonstrated competence for testing in accordance with ASTM F2085-12, and will have the competence to source a new sheet and conduct the testing to the new standard under the revised standard ASTM F2085-19. Therefore, the Commission considers the existing CPSC-accepted laboratories for testing to ASTM F2085-12 to be capable of testing to ASTM F2085-19 as well. Accordingly, the existing NOR for this standard will remain in place, and CPSC-accepted third party conformity assessment bodies are expected in the normal course of renewing their accreditation to update the scope of the testing laboratories' accreditation to reflect the revised standard.

The Commission is issuing this rule as a direct final rule. Although the Administrative Procedure Act (APA) generally requires notice and comment rulemaking, section 553 of the APA provides an exception when the agency, for good cause, finds that notice and public procedure are “impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. 553(b)(B). The Commission concludes that when the Commission updates a reference to an ASTM standard that the Commission has incorporated by reference under section 104(b) of the CPSIA, notice and comment are not necessary.

Under the process set out in section 104(b)(4)(B) of the CPSIA, when ASTM revises a standard that the Commission has previously incorporated by reference as a Commission standard for a durable infant or toddler product under section 104(b)(1)(b) of the CPSIA, that revision will become the new CPSC standard, unless the Commission determines that ASTM's revision does not improve the safety of the product. Thus, unless the Commission makes such a determination, the ASTM revision becomes CPSC's standard by operation of law. The Commission is allowing ASTM F2085-19 to become CPSC's new standard. The purpose of this direct final rule is merely to update the reference in the Code of Federal Regulations (CFR) so that it reflects accurately the version of the standard that takes effect by statute. The rule updates the reference in the CFR, but under the terms of the CPSIA, ASTM F2085-19 takes effect as the new CPSC standard for portable bedrails, even if the Commission did not issue this rule. Thus, public comment will not impact the substantive changes to the standard or the effect of the revised standard as a consumer product safety standard under section 104(b) of the CPSIA. Under these circumstances, notice and comment are not necessary. In Recommendation 95-4, the Administrative Conference of the United States (ACUS) endorsed direct final rulemaking as an appropriate procedure to expedite promulgating rules that are noncontroversial and that are not expected to generate significant adverse comment. See 60 FR 43108 (August 18, 1995). ACUS recommended that agencies use the direct final rule process when they act under the “unnecessary” prong of the good cause exemption in 5 U.S.C. 553(b)(B). Consistent with the ACUS recommendation, the Commission is publishing this rule as a direct final rule because we do not expect any significant adverse comments.

Unless we receive a significant adverse comment within 30 days, the rule will become effective on May 20, 2020. In accordance with ACUS's recommendation, the Commission considers a significant adverse comment to be one where the commenter explains why the rule would be inappropriate, including an assertion challenging the rule's underlying premise or approach, or a claim that the rule would be ineffective or unacceptable without change. As noted, this rule merely updates a reference in the CFR to reflect a change that occurs by statute.

Should the Commission receive a significant adverse comment, the Commission would withdraw this direct final rule. Depending on the comments and other circumstances, the Commission may then incorporate the adverse comment into a subsequent direct final rule or publish a notice of proposed rulemaking, providing an opportunity for public comment.

The Regulatory Flexibility Act (RFA) generally requires that agencies review proposed and final rules for their potential economic impact on small entities, including small businesses, and prepare regulatory flexibility analyses. 5 U.S.C. 603 and 604. The RFA applies to any rule that is subject to notice and comment procedures under section 553 of the APA. Id. As explained, the Commission has determined that notice and comment are not necessary for this direct final rule. Thus, the RFA does not apply. We also note the limited nature of this document, which merely updates the incorporation by reference to reflect the mandatory CPSC standard that takes effect under section 104 of the CPSIA.

The standard for portable bed rails contains information-collection requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The revisions made no changes to that section of the standard. Thus, the revisions will have no effect on the information-collection requirements related to the standard.

The Commission's regulations provide a categorical exclusion for the Commission's rules from any requirement to prepare an environmental assessment or an environmental impact statement where they “have little or no potential for affecting the human environment.” 16 CFR 1021.5(c)(2). This rule falls within the categorical exclusion, so no environmental assessment or environmental impact statement is required.

Section 26(a) of the CPSA, 15 U.S.C. 2075(a), provides that where a consumer product safety standard is in effect and applies to a product, no state or political subdivision of a state may either establish or continue in effect a requirement dealing with the same risk of injury unless the state requirement is identical to the federal standard. Section 26(c) of the CPSA also provides that states or political subdivisions of states may apply to the CPSC for an exemption from this preemption under certain circumstances. Section 104(b) of the CPSIA deems rules issued there under “consumer product safety rules.” Therefore, once a rule issued under section 104 of the CPSIA takes effect, it will preempt in accordance with section 26(a) of the CPSA.

Under the procedure set forth in section 104(b)(4)(B) of the CPSIA, when a voluntary standard organization revises a standard upon which a consumer product safety standard was based, the revision becomes the CPSC standard within 180 days of notification to the Commission, unless the Commission determines that the revision does not improve the safety of the product, or the Commission sets a later date in the Federal Register . The Commission has not set a different effective date. Thus, in accordance with this provision, this rule takes effect 180 days after we received notification from ASTM of revision to this standard. As discussed in the preceding section, this is a direct final rule. Unless we receive a significant adverse comment within 30 days, the rule will become effective on May 20, 2020.

The Congressional Review Act (CRA; 5 U.S.C. 801-808) states that, before a rule may take effect, the agency issuing the rule must submit the rule, and certain related information, to each House of Congress and the Comptroller General. 5 U.S.C. 801(a)(1). The submission must indicate whether the rule is a “major rule.” The CRA states that the Office of Information and Regulatory Affairs (OIRA) determines whether a rule qualifies as a “major rule.” Pursuant to the CRA, this rule does not qualify as a “major rule,” as defined in 5 U.S.C. 804(2). To comply with the CRA, the Office of the General Counsel will submit the required information to each House of Congress and the Comptroller General.

For the reasons stated above, the Commission amends 16 CFR part 1224 as follows:

• A clear definition of the metric and how it is calculated;

• A statement indicating the reasons why the metric provides useful information to investors; and

• A statement indicating how management uses the metric in managing or monitoring the performance of the business.

The company should also consider whether there are estimates or assumptions underlying the metric or its calculation, and whether disclosure of such items is necessary for the metric not to be materially misleading.

If a company changes the method by which it calculates or presents the metric from one period to another or otherwise, the company should consider the need to disclose, to the extent material: (1) The differences in the way the metric is calculated or presented compared to prior periods, (2) the reasons for such changes, (3) the effects of any such change on the amounts or other information being disclosed and on amounts or other information previously reported, and (4) such other differences in methodology and results that would reasonably be expected to be relevant to an understanding of the company's performance or prospects. Depending on the significance of the change(s) in methodology and results, the company should consider whether it is necessary to recast prior metrics to conform to the current presentation and place the current disclosure in an appropriate context.

Additionally, we remind companies of the requirement to maintain effective disclosure controls and procedures. 12 Effective controls and procedures are important when disclosing material key performance indicators or metrics that are derived from the company's own information. When key performance indicators and metrics are material to an investment or voting decision, the company should consider whether it has effective controls and procedures in place to process information related to the disclosure of such items to ensure consistency as well as accuracy. 13

The “Codification of Financial Reporting Policies” announced in Financial Reporting Release 1 (April 15, 1982) [47 FR 21028] is updated by adding new Section 501.16, captioned “Additional Guidance on Key Performance Indicators and Metrics” to the Financial Reporting Codification and under that caption including the text in Section I of this release.

The Codification is a separate publication of the Commission. It will not be published in the Federal Register or Code of Federal Regulations.

Pursuant to the Congressional Review Act, 14 the Office of Information and Regulatory Affairs has designated this guidance as not a “major rule,” as defined by 5 U.S.C. 804(2).

For the reasons set forth above, the Commission is amending title 17, chapter II, of the Code of Federal Regulations as set forth below:

Comment: Some commenters asserted that the fact that work opportunities for the population with LEP expanded is irrelevant, because the “inability to communicate in English” education category only includes the LEP population that speaks no English. Commenters pointed out that the “LEP” rubric includes individuals who speak English “well,” “not well,” and “not at all,” so the LEP population is too broad to represent those individuals who are “unable to communicate in English.” These commenters contended that the appropriate proxy for individuals with an “inability to communicate in English” would be only those individuals with LEP who speak no English. Further, some of these commenters asserted that the labor force participation for individuals who speak no English has, in their opinions, not improved much.

Response: We disagree. The “inability to communicate in English” education category can apply to a range of individuals with varying levels of English communication ability. This is because our agency uses the “inability to communicate in English” category to include all individuals who are unable to do one or more of the following in English: (1) Read a simple message; (2) write a simple message; or (3) speak or understand a simple message. 22 In other words, we currently find as “unable to communicate in English” individuals who cannot speak English but who have some, or even higher, capacity to read and understand English. Similarly, we find as “unable to communicate in English” individuals who cannot read or write English, but who can speak some English. Therefore, while not an exact match, the LEP population is an appropriate proxy for the population we deem “unable to communicate in English” under our current rules.

In response to the commenters' assertion that the LFPR for this group has not increased, we note that the data we cited indicates that individuals who speak no English are participating in the labor force in increased numbers. Between 1980 and 2016, the LFPR for those who speak no English rose from 54.7% to 61.5% (approximately from 373,000 to 1.7 million in absolute numbers). 23 24 25 The proportion of the working age population who do not speak English to the total labor force nearly tripled, that is, from approximately 373,000 out of 78.3 million to approximately 1.7 million out of 131 million over the same period. 26

Moreover, the 2016 data shows that the LFPR of the individuals who spoke no English increased more than any other group at the High School Diploma, Some College, and College Graduate levels. 27 At the Less than High School Diploma level, even though the increase in the LFPR of those individuals who spoke no English was not the highest among all groups, the LFPR of the no English group (60.5%) was still higher than that of only English group (48.9%). 28 29 In 1980, the reverse was true. 30

Comment: Some commenters raised the concern that the work opportunities for individuals with LEP are not the same throughout the U.S. A few commenters noted that the region in which an individual with LEP lives and the number of people in that individual's region of residence who speak the same language as the individual could affect job prospects. One commenter stated that no one speaks anything other than English in his region, so he believed that an inability to communicate in English would be a significant barrier to working where he lives. Another commenter said that even though a substantial number of LEP persons live in his region, he doubted that employers would hire them, because a large number of English proficient workers are available in his region. Another commenter asserted that, for non-English speaking individuals, the language the individuals speak might affect their work opportunities. This commenter opined that an individual with LEP who speaks Spanish might have better work prospects than an individual with LEP who speaks another language.

Response: Our disability programs are national in scope. According to the Act, it does not matter whether work “exists in the immediate area in which [a claimant] lives” as long as sufficient work exists in the “national economy.”  31 The Act defines the “national economy” as “the region where [a claimant] lives” or “several regions of the country.”  32 The existence of jobs for individuals with LEP may vary depending on the immediate area in which the individual resides. The Act, however, requires us to consider the existence of jobs in the overall national economy (defined as an entire region or several regions of the country).

As to the concern that an individual with LEP may not be hired because employers may prefer a person who is proficient in English, the Act prohibits us from considering “whether a specific job vacancy exists for [a claimant], or whether he would be hired if he applied for work.”  33 Consistent with the Act, our regulations explain that when we determine whether a claimant can adjust to other work, we do not consider the hiring practices of employers. 34 Again, we are required to consider only whether a claimant could engage in work that exists in significant numbers in the national economy, not how likely claimants are to be hired by certain employers.

Comment: Some commenters expressed the view that an increase in the size of the population with LEP does not translate to greater work opportunities for those individuals with LEP. These commenters contended that increased linguistic diversity in the economy might actually make finding work more difficult for workers with LEP, because they would have a harder time finding other workers who speak the same language.

Response: The available data does not support the assertions made in this comment. Both the LEP population as a percentage of the U.S. population and their LFPR increased considerably between 1980 and 2016. In fact, during this period, the LFPR of the LEP population increased more than that of the individuals who spoke only English. The LEP population's LFPR increased by 5.5 percentage points (from 66.7% to 72.2%) while the LFPR of the population that spoke only English increased by 4.1 percentage points (from 73.4% to 77.5%). 35 The increase is notable considering the change in the make-up of the U.S. population. In 1980, the LEP individuals made up only 5.1% (5.4 million) of the population. 36 In 2016, LEP individuals made up 10.5% (17.8 million) of the U.S. population. 37 Further, the Brookings Institution's 2014 study (the Brookings analysis) that evaluated the LEP population in 89 metropolitan areas (home to 82% of nation's LEP population) in 43 States and the District of Columbia showed that a majority of working-age individuals with LEP are in the labor force. 38 While the LFPR increase for the LEP population could theoretically be attributed to multiple factors, the data suggests that there are job opportunities for those with LEP.

Comment: One commenter asserted that our reliance on the Brookings analysis was inappropriate because the study did not examine LEP individuals with disabilities, but rather focused on the general LEP population.

Response: Under the Act, we find a person disabled if the person cannot do his or her past relevant work or any other work that exists in the national economy in significant numbers. This means that a person found disabled under our rules would not be working, absent special circumstances. Therefore, we examined data about the LFPR of individuals in the general LEP population, rather than focusing on the data about LEP individuals who are disabled. Examining statistics on persons with impairments who are in the labor force would not have been directly relevant to this rulemaking, because if such persons were able to engage in work in the national economy, their impairments would not have been severe enough to meet the Act's definition of “disability” in the first place.

Comment: A few commenters cited Social Security Ruling (SSR) 85-15, 39 which says that we will find an individual disabled if his or her mental capacity is insufficient to meet the demands of unskilled work due to a mental impairment. These commenters equated the effects of “inability to communicate in English” with the effects of having a mental impairment that severely limits the potential work capacity. These commenters stated that our rules should treat similarly the effects of the “inability to communicate in English” and those of severely limiting mental impairments. One of these commenters also cited listing 2.09, which addresses “loss of speech,”  40 and said that it is implausible that the “inability to communicate in English” would be completely vocationally irrelevant when we find an individual who is unable to speak disabled under listing 2.09.

Response: We disagree with these comments, because the loss of speech under listing 2.09 and an inability to communicate in English (or in any one particular language) are different and cannot be conflated. SSR 85-15 addresses primarily the loss of functional capacity that results from a medically determinable impairment(s) (MDI). Under the Act, an MDI “results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.”  41 The “inability to communicate in English” is not an MDI; rather, it is a subset of the Act's vocational factor of education. Our rules treat MDIs differently from vocational factors in determining disability. Specifically, we consider the effects of an MDI or a combination of MDIs to determine an individual's residual functional capacity (RFC). 42 We do not include the effects of vocational factors— i.e., age, education, and work experience —when determining an RFC. Under this final rule, how we assess an RFC remains the same, but we will no longer consider an “inability to communicate in English” as a subset of the vocational factor of education for the reasons we explain here and in the NPRM. We note that persons who are unable to communicate due to an MDI would be evaluated under the criteria for that MDI; the inability to communicate generally (presumably in any language, not just English) would be considered in that context, and not as a “symptom” in isolation.

The comparison of the “inability to communicate in English” to “loss of speech” under listing 2.09 can be similarly distinguished. Listing 2.09 deals with individuals who due to a MDI have an “inability to produce by any means speech that can be heard, understood, or sustained.”  43 We find individuals who satisfy the listing requirements disabled at step 3 of the sequential evaluation process, with no consideration of whether they are able to communicate in English or in another language. 44 An inability to communicate in English was a category of education that we considered at step 5  45 and was not a functional limitation. Equating an “inability to speak” to an “inability to communicate in English” due to a lack of English proficiency draws a false equivalency between two groups of individuals who are fundamentally dissimilar. Our program experience and common understanding make it clear that individuals who are unable to produce by any means of speech that can be heard, understood, or sustained because of a severe MDI are substantially more limited than those without such an impairment who merely lack facility with the English language.

Comment: One commenter opined that an individual's ability to communicate in English should remain a relevant vocational factor because every vocational expert  46 would say that language proficiency affects job placement. The commenter reasoned that if that were not the case, the Dictionary of Occupational Titles (DOT) would not have included a language component in their job descriptions.

Response: The commenter asserted that because the DOT has a language component in their job descriptions, the ability to communicate in English must be a relevant vocational factor. We note that even under our current rules, the inability to communicate in English has no impact on disability determinations for claimants under age 45. 47 This underscores that the ability to communicate in English is not an influencing factor as a matter of general principle.

Further, we did not state the ability to communicate in English is irrelevant to job placement. Through this rule, we are simply acknowledging the changes that have occurred in the labor market and the workforce in the last four decades. The data we presented in the NPRM demonstrated that individuals with LEP, including those who speak no English, are participating in the U.S. labor force at considerably higher levels than previously. This indicates that more jobs are present in the national economy for the LEP population. We are not legally bound to establish disability determination criteria based on every possible influencing vocational factor. Rather, we are required to determine that jobs exist in the national economy for disability applicants and recipients (if they are determined to no longer be qualified for payments based on medical factors).

Comment: Multiple commenters disagreed with the statement from the NPRM that English language proficiency has the least significance for unskilled work, because most unskilled jobs involve working with things rather than with data or people. 48 They contended that even unskilled jobs require some level of training, which would include verbal or written instructions. Several commenters also said that many unskilled jobs require public contact and the ability to communicate in English. These commenters noted that unskilled jobs like a “fast food worker” include duties such as taking customer orders and communicating the orders to the kitchen. Some commenters noted that the Occupational Information Network (O*NET) does not list any job for which knowledge of the English language is unnecessary or unimportant.

Response: The data we cited does not support the commenter's view. A large number of individuals with LEP, including those who speak no English, participate in the labor force in a variety of occupations. The Brookings analysis cited in the NPRM shows that over 1 million individuals with LEP, including those who speak no English, are represented in each of the following occupations: Building and grounds cleaning and maintenance; production; construction and extraction; food preparation and serving; transportation and material moving; sales and related occupations; and office and administrative support. 49 This data indicates that, contrary to the commenters' assumptions, employers do find a way to communicate with LEP employees, indicating that LEP is not a barrier to all types of employment.

Comment: In the NPRM, we noted that the work history of those claimants found disabled under Rule 201.17 or Rule 202.09 (the two main grid rules that we used for the inability to communicate in English)  50 included the following ten occupations: Laborer, machine operator, janitor, cook, maintenance, housekeeping, driver, housekeeper, truck driver, and packer. 51 Pointing to this list, several commenters contended that only physically demanding work is available to individuals who speak no English, because the DOT classifies these jobs as “medium” and “heavy” work. These commenters further argued that this list underscores how difficult it would be for older, severely impaired individuals who are unable to communicate in English to adjust to other work available in the national economy.

Response: The occupations cited are not all as physically demanding as characterized by the commenters. These occupations are types of work that many claimants whom we found “unable to communicate in English” had previously done, and many of them exist as unskilled, light exertional level work. In a supplemental document, “Table of example entries of `cook,' `machine operator' and `housekeeping' jobs in the Dictionary of Occupational Titles,”  52 we list multiple examples of “cook,” “machine operator,” and “housekeeping” occupations with their corresponding strength requirement and specific vocational preparation. 53 As shown in our table, the DOT has multiple entries of various “cook” occupations that range in exertional level from light to medium. As well, the DOT lists numerous entries for “machine operator” occupations that range from sedentary to very heavy exertional levels. “Housekeeping” occupations exist at the light exertional level. Moreover, the ten occupations listed above do not represent all jobs that a person who may be found “unable to communicate in English” can do. Finally, English language proficiency has the least significance for unskilled work because most unskilled jobs involve working with things rather than with data or people. From our adjudicative experience, we know that a significant number of unskilled jobs exist at the sedentary and light exertional levels in the national economy.

In fact, in the NPRM we also said that the Brookings analysis shows that over 1 million individuals with LEP, including those who speak English “not at all,” are represented in each of the following occupations: Building and grounds cleaning and maintenance; production; construction and extraction; food preparation and serving; transportation and material moving; sales and related occupations; and office and administrative support. These occupations represent seven of 22 major occupation groups that exist in the national economy. 54 Each major group contains numerous jobs that exist at varying exertional levels. As well, we note that sales and related occupations and office and administrative support are not physically taxing by nature.

Comment: Several commenters contended that we should not eliminate a rule that affects only a very small group of people who are age 45 or older, are restricted to sedentary or light work, and are without skills.

Response: Our goal in publishing this rule is to ensure we use the most accurate, current criteria possible when determining if someone is disabled. The data we cited in the NPRM and here, indicating the existence of jobs in the national economy for individuals with LEP, supports our decision to remove the inability to communicate in English. It is the supportability and applicability of the criteria used, not the number of people affected, that drives this policy. The increase in the LFPR and employment rate in the LEP population apply to both the LEP individuals who are under 45 and the LEP individuals who are 45 or older. We also note that the two groups' LFPR and employment rate in 2017 were comparable, as shown in Table 6, below. 55

Comment: Some commenters contended that we offered no meaningful evidence that the nationwide job prospects for “older, severely disabled workers with very limited functional capacity who are unable to communicate in English” have improved. They asserted that we did not establish that a sufficient occupational base of jobs exists for this narrow group of individuals.

Response: In the NPRM and this final rule, we presented data demonstrating that the national workforce has changed, and that individuals who are unable to communicate in English are working in much greater numbers than previously. Further, the inability to communicate in English is just one of multiple factors that we consider under the sequential evaluation process. Thus, workers who are “severely disabled” are likely to qualify for Social Security disability payments based on medical or other factors, rather than on their inability to communicate in English. Because this final rule removes only one category of several from our consideration of education, and education is just one of many factors that we consider under the sequential evaluation process, it does not follow that removal of this factor would lead to “severely disabled” people no longer being able to receive disability payments. For example, at step 3 of the sequential evaluation, we will continue to determine whether a claimant is disabled based solely on “medical severity” of a claimant's impairments, without considering age or English language proficiency. 56 Similarly, at step 5 of the sequential evaluation process, we will still consider the factors of age, education, and work experience to determine if the individual can adjust to other work in the national economy.

Comment: Many commenters asserted that claimants who are unable to communicate in English have fewer vocational opportunities than the claimants with the same level of education who can communicate in English.

Response: The Act does not require us to consider whether the individuals who are unable to communicate in English and individuals who are able to communicate in English have equivalent vocational opportunities when assessing disability. Under the Act, the issue of whether an individual is disabled is determined based on whether an individual, with his or her RFC, age, education, and work experience, is able to perform any substantial gainful work that exists in significant numbers in the national economy. 57 We believe the data cited in the NPRM and in this final rule supports our position that there is such work available.

Comment: Several commenters supported the proposal, including one commenter who noted that an individual's actual formal education is the best preparation for future jobs, and that assessing an individual's education category based solely on communication skills was “unreasonable.” The commenter also indicated that our current rule might have the effect of stigmatizing as illiterate those people who cannot communicate in English. Another commenter stated that the “inability to communicate in English” category is outdated, because it suggests that only a person who speaks English is educated enough to hold a job. Similarly, one commenter indicated that disregarding education simply because a person has limited English proficiency did not make sense, noting that many of her family members who know little English hold advanced degrees from their home country.

Response: We acknowledge the support provided by the commenters, and reiterate that we no longer consider English proficiency to be the best proxy for assessing an individual's education level as part of our disability determination process. We therefore anticipate the revision we are making in this final rule will help us better assess the vocational impact of education in the disability determination process, in a manner consistent with the current national economy.

Comment: One commenter, citing to research and to the U.S. Census Bureau's 2014 American Community Survey data, asserted that immigrants have difficulty transferring their foreign education, foreign credentials, and overseas job experience to the U.S. job market. Another commenter, also pointing to the 2014 American Community Survey data, said that a significant number of immigrants are working in jobs for which they are educationally overqualified, and this demonstrates that they are not able to make full use of their educational background in the U.S. job market. One commenter described working with immigrants who were physicians in their native country but who could only qualify as low-paid home health aides in the U.S. because of their poor English (and various licensing requirements).

Response: The standard applied at step 5 to determine disability is not whether an individual is able to find work that maximizes the individual's education and work experience. Rather, the standard is whether an individual who cannot do his or her previous work is able to engage in “any other kind of substantial gainful work” which exists in the national economy, given his or her RFC, age, education, and work experience. 58 The phrase “any other kind of substantial gainful work” makes clear that we are not required to identify work that maximizes an individual's education and work experience. Thus, finding a claimant not disabled because he or she has a capacity to adjust to work that is less than his or her education and skill level is entirely consistent with the Act. This is the case even for claimants who have the ability to fully communicate in English.

Comment: One commenter claimed that we did not show how foreign formal education, coupled with the inability to communicate in English, provides any vocational advantage. The commenter contended that we did not demonstrate that workers with a foreign formal advanced education are affected by this rule. The commenter opined that workers with the inability to communicate in English frequently lack a formal education.

Response: The Act requires us to consider an individual's education in some cases when we make disability determinations. We clarify that we are not making conclusions about the numbers of workers with foreign advanced education who are affected by our current rules. Similarly, we acknowledge that individuals with an inability to communicate in English have various education levels, and we will continue to assign individuals to the most appropriate of the remaining education categories (illiteracy, marginal education, limited education, and high school education and above). 59 Our final rule simply no longer prioritizes English skills over formal education.

Comment: Some commenters expressed that having formal education might not lead to a vocational advantage. One of these commenters noted that, even within the U.S., the quality of education varies significantly, and that many American high school graduates, especially those from low-income families, may have failed to develop reading skills beyond elementary levels due to differences in education funding. In this context, the commenter noted that if there were such variability among American educational institutions, correctly assessing formal education attained from another country would be even more difficult. Further, this commenter and several others noted that formal education from a non-English speaking country might not be helpful if the individual is unable to communicate in English.

Response: We disagree. Because we have never assessed the quality of education that a particular school has provided, and that will not change in this rule. When we determine an individual's education category, we consider the numerical grade level an individual completed if there is no other evidence to contradict it. We will adjust the numerical grade level if other factors suggest it would be appropriate, such as past work experience, the kinds of responsibilities an individual may have had when working, daily activities, hobbies, or the results of testing showing intellectual ability. 60

We also disagree with the comment that formal education from a non-English speaking country might not be helpful if the individual is unable to communicate in English. Our current rules explain that educational abilities consist of reasoning, arithmetic, and language skills. 61 An individual's actual educational attainment (reflecting those three areas, among others), not the specific language the individual speaks, generally determines the individual's educational abilities. Thus, lack of English language proficiency does not diminish an individual's actual educational abilities, nor does it negate educational abilities attained through formal education.

Comment: Several commenters said we should maintain our current rules because the effects of illiteracy and inability to communicate in English on an individual's ability to work would be similar. One commenter, for example, said that those individuals who are illiterate and those who are unable to communicate in English would have a similar inability to read basic safety signs and supervisory instructions. Another commenter expressed that keeping the “illiteracy” education category while eliminating the “inability to communicate in English” education category is inconsistent and biased. The commenter said someone who can read and write in another language, but cannot do so in English, faces the same hardships and challenges in a work place as an illiterate individual.

Response: We disagree. Even though we treated illiteracy and inability to communicate in English similarly before this final rule, we maintained two distinct education categories for these situations, demonstrating that they are not the same. Individuals with LEP can have varying levels of education, ranging from none to post-secondary education, while an illiterate individual likely has no or minimal education. 62 Further, from a practical standpoint, people with LEP do not experience the disadvantages that people with illiteracy do. For example, the commenter raised the issue of being unable to read safety warning signs. In that circumstance, someone who was illiterate would have no way of knowing what he or she were reading, and no way to find out other than asking someone. Someone with LEP, however, might be able to use a free online translator program on a personal handheld electronic device to find out the meaning of the sign's message.

Regarding the comment that reading documents and following instructions in a workplace may be challenging for some individuals who have no English language proficiency, the data cited in the NPRM and here indicate that many of these individuals are in fact participating in the workforce and are employed, despite the language barrier.

Comment: One commenter suggested an alternative to our proposed rule. The commenter suggested that we revise the “illiteracy” education category to include the inability to read or write in any language, not just in English. The commenter contended that, with this revision, older individuals who cannot read or write in any language would be found disabled under the current grid rules that include “Illiterate or Unable to Communicate in English.”

The commenter also suggested that we revise the “inability to communicate in English” category. The commenter recommended that we consider education in another language, particularly at the high school level or above, when determining whether a claimant's inability to communicate in English has an impact on finding work in the national economy. The commenter further suggested that, for claimants with a considerable amount of education in a language other than English living in the U.S. territories, we should heavily weigh the effects of their education. The commenter noted that, due to complexities involved in determining availability of jobs in the national economy, we must use a vocational expert in such cases.

Response: Regarding the commenter's suggestion about revising the illiteracy category, we note that our current regulations at 20 CFR 404.1564 and 416.964 describe the illiteracy education category without reference to a specific language. As to the other suggestions, as the commenter noted, the options recommended would require our adjudicators to undertake complex analyses of even greater subjectivity, likely leading to inconsistent results. Further, if we were to adopt the suggestion of considering education differently in the U.S. territories, we would create a different set of rules for those living in places where English is not the dominant language. This would not be consistent with the intent of the Act that we apply our rules with national uniformity and consistency. 63

Comment: Some commenters asserted that the proposed rule would be too burdensome for us to administer. Specifically, they said our adjudicators would have difficulty assessing education attained in another language or in another country.

Response: We acknowledge that evaluating education completed in another country could be complex at times. However, we already do this under our current rules. For claimants who are proficient in English, we assess foreign schooling if they attended school in another country. Under our current regulations, we use the highest numerical grade an individual completed to determine the individual's educational abilities unless there is evidence to contradict it. 64 This will not change under the final rule. We will provide training to our adjudicators about how we will assess education under the new framework of the remaining four education categories. We do not anticipate that the evaluation process will become more burdensome.

Comment: A commenter supported our proposal, stating that evaluating disability claims based on an individual's ability to communicate in English is no longer appropriate considering the international expansion of the Social Security agreements (also known as totalization agreements). 65

Response: We acknowledge the commenter's support for the rule. We agree that the international reach of our disability program has steadily expanded, and we anticipate further expansion. As explained in the NPRM, in 1978 we had a totalization agreement with only one country. In contrast, we now have totalization agreements with 30 countries, and English is the dominant language in only four of those countries. The increasingly global scope of our programs is also illustrated by the fact that, during the public comment period for the proposed rule, two new totalization agreements (with Slovenia and Iceland) went into effect. 66

Comment: Several commenters claimed that our proposal appeared to be based on our experience adjudicating claims from individuals in the U.S. territories and outside of the U.S. These commenters asserted that we should not change nationwide policy based on a small number of “uncommon cases” in these areas. One commenter referenced data stemming from an OIG report. 67 This data seemed to indicate that during calendar year 2011-2013, there were an average of 122 disability allowances per year in Puerto Rico in which “inability to communicate in English” was a deciding factor.

Response: We disagree that we based our proposal on “uncommon cases.” The Puerto Rico data referenced by the commenter was only one source of support cited in the NPRM. As previously noted in this document, one of the reasons for the proposal is the expansion of the population with LEP as a portion of the U.S. population and the increase in their LFPR and employment rate, demonstrating that a lack of English proficiency is no longer the work barrier that it used to be. As stated previously, other reasons for the change include research and data related to English language proficiency, work, and education; the expansion of the international reach of our disability programs; and public comments we received on them in support of our NPRM.

Comment: Another commenter expressed that because individuals living in Puerto Rico and other U.S. territories can and do move to one of the 50 States, and because many individuals receiving disability benefits while living abroad have a right to live in the U.S., current rules based on the dominant language of the U.S. should be retained.

Response: We note that regardless of the individual's country of origin, residence or language, we administer the program based on uniform rules, because this is a national program.

Comment: Some commenters suggested that we revise the “inability to communicate in English” category to distinguish the areas with more diverse labor markets, such as foreign language enclaves, from the rest of the U.S., where the ability to communicate in English may be more important vocationally.

Response: We are required to administer a national disability program that applies rules uniformly across the nation, which means we must apply the same rules regardless of where a claimant resides. Thus, adopting this suggestion would be contrary to the Act, which prohibits us from considering work that exists only in very limited numbers or in relatively few geographic locations as work that exists in the “national economy.”  68 The intent of the Act was to “provide a definition of disability which can be applied with uniformity and consistency throughout the Nation, without regard to where a particular individual may reside, to local hiring practices or employer preferences, or to the state of the local or national economy.”  69 The language of the Act clearly reflects this principle. 70 Accordingly, our rules must remain national in scope. Removing the category of “inability to communicate in English” and considering actual educational attainment for all claimants keeps our program in line with its national scope, and promotes accurate assessment of disability throughout the 50 States, the District of Columbia, the U.S. territories, and abroad.

Comment: One commenter asserted that they perceived us to be concerned about whether “inability to communicate in English” should be considered for the claimants currently living in Puerto Rico or internationally, and that this assumed concern is misplaced. According to the commenter, because we administer a Federal program with a national scope, the Act requires that we consider jobs in the “national economy,” and whether work exists in the “immediate area in which [the claimant] lives”  71 is irrelevant.

Response: We disagree with the commenter's assertion that we proposed this rule based solely, or even primarily, on concerns about limited regions. As we stated above, the examples of Puerto Rico and claimants living outside the U.S. were only part of our justification for this rule. We wanted our rules in this area to reflect the increased existence of jobs in the national economy for LEP workers; the research and data related to English language proficiency, work, and education; the expansion of the international reach of our disability programs; and in response to public comments we received on them in support of our NPRM.

However, we do note that the Act does not prohibit us from considering if work exists in significant numbers in the “immediate area” where a claimant lives. 72 While we do not require that the work exists in the immediate area in which the claimant lives, we do require that the work exists in significant numbers either in the region where the individual lives (an area larger than the immediate area in which the claimant lives and which may or may not include jobs in the immediate area) or in several regions of the country.

Comment: One commenter requested that we share more data to enable the public to better assess whether issues with “inability to communicate in English” are national in scope. The commenter asked for data on allowances under “inability to communicate in English,” and the educational attainment of those claimants by State. The commenter opined that this would confirm either that there is a national problem in the application of “inability to communicate in English,” or that the problem is a local one based in the unique characteristics of Puerto Rico as a territory.

Response: We believe the data we have provided already about some State allowance rates under Rule 201.17 and 202.09 in the NPRM's supporting material is sufficient to demonstrate that this rule is based on more than just information from Puerto Rico. Because we are administering a national program, providing more state-by-state data is out of context. As we discussed in the NPRM and this final rule, the data we cited indicates there have been changes in the national workforce since we published our current rules over 40 years ago. These changes demonstrate that the “inability to communicate in English” education category is no longer a useful indicator of an individual's educational attainment or of the vocational impact of an individual's education.

Comment: One commenter suggested that we should not disregard this rule in its entirety, but apply it in limited circumstances. As an example, the commenter said that we should codify the U.S. First Circuit Court of Appeals' decision in Crespo v. Secretary of Health and Human Services. 73 This suggestion would allow us to continue to apply the current rule where English is the predominant language.

Response: The commenter asked us to apply this final rule disparately in different regions. In the Crespo case example cited by the commenter, the court found it acceptable to consider, during our disability evaluation process, the claimant's ability to communicate in Spanish in place of the ability to communicate in English, because the claimant was a resident of Puerto Rico. In recommending that we apply Crespo nationally, the commenter is therefore suggesting that we should only proceed with the final rule for areas in which our beneficiaries may reside, but English is not the primary spoken language ( e.g., Puerto Rico; foreign countries with whom we have totalization agreements). The commenter, therefore, is recommending that we maintain the current rule in the 50 States.

Regarding the specific example of Crespo, as even the commenter noted, the court explicitly declined to apply the rationale outside of this specific case. 74 As well, we administer a national disability program that applies rules uniformly across the nation, regardless of where a claimant resides.

Comment: One commenter said that our employees believe the proposed rules would lead to inefficient and unfair resolutions of claims. The commenter stated that he had spoken with one former and one current SSA employee about the proposal.

Response: We disagree with this comment. We decide each claim fairly and always strive to provide timely decisions. As part of our implementation of this final rule, we will provide comprehensive training to our staff to ensure we continue to meet the obligation of providing timely, accurate, and consistent decisions. We will also continue to monitor for quality in the decisionmaking process to ensure our adjudicators apply the rules correctly.

Comment: In the NPRM, we proposed to apply this rule for “new applications, pending claims, and continuing disability reviews (CDR), as appropriate, as of the effective date of the final rule.”  75 Several commenters opposed the proposed implementation process. These commenters said that using the new rules for claims pending at the time this final rule goes into effect is inefficient.

Some commenters asked that we not apply this final rule to claims filed prior to the effective date. They expressed concern that claimants may experience a delay in receiving their decisions because we may need to hold supplemental hearings for claims that are in post-hearing status as of the effective date of this final rule.

Another commenter asked that we clarify whether the proposed changes would apply to new applicants only, and whether current recipients of disability benefits would need to re-apply when this final rule becomes effective. The commenter noted that a non-English speaking individual whom we previously found disabled may have a reliance interest. This commenter suggested we should allow that person to retain payments if our medical review process reveals that his or her medical condition remained unchanged.

Response: Our standard practice is to implement the final rule as of the effective date for all pending claims, CDRs, and new applications. We will do the same for this regulation. 76 We disagree that this implementation process will be inefficient and note that, in general, it will not require us to hold supplemental hearings. Because we already ask for education information as part of our standard disability determination process (at the time of initial application filing and again at the reconsideration and hearing levels), and this information is not dependent on the claimant's ability to communicate in English, we will be able to use that existing information when we implement the final rule. For example, we ask all claimants to provide the highest grade of school completed; to specify whether they received special education in school; and to disclose if they completed vocational school. We therefore do not anticipate needing more education information than what we already have as part of our existing processes. Further, as discussed above, we will provide training to adjudicators to ensure accurate, effective, and timely adjudication of claims.

Current beneficiaries will not need to reapply. However, we will use this final rule when we review their cases under our CDR process. This change in the rule will only affect those who experience medical improvement and were previously assigned to the inability to communicate in English education category. For these individuals only, we will redetermine their education category and assign one of the four remaining education categories based on their level of education. Because we use the Medical Improvement Review Standard to determine if an individual's disability continues or ceases in a CDR, this final rule will not affect a beneficiary whose medical condition has not changed since he or she was last found disabled.

Comment: Multiple commenters asserted that the proposed rule would require us to obtain the testimony of vocational experts at the hearing level to assess whether specific jobs require the ability to communicate in English. Some commenters stated that the proposed rule would delay favorable decisions for many claimants unable to communicate in English, because vocational expert testimony is available only at the hearing level.

One commenter said that because language limitations affect individuals' RFCs, the hypothetical questions presented to vocational experts at hearings should include the effects of an inability to communicate in English. Another commenter said that the proposed rules would lengthen the hearings, because vocational experts would need to respond to additional hypothetical questions about whether certain jobs require the ability to communicate in English.

Response: We disagree with these comments. The same rules will apply at all adjudicatory levels. Therefore, even at the hearing level where a vocational expert may testify about the demands and existence of jobs in the national economy, adjudicators will not consider the effects of inability to communicate in English. With regard to the comment that we would need to incorporate the effects of language into a hypothetical RFC posed to vocational experts, as we noted previously, under our current rules and this final rule, we do not consider the effects of an inability to communicate in English when we assess an individual's RFC. We consider only the effects of an MDI or a combination of MDIs to determine an individual's RFC. 77 “Inability to communicate in English” is not an MDI. When the final rule takes effect, we will not consider whether an individual can communicate in English at any step of the sequential evaluation process. Thus, if claimants or their representatives raise the issue of the inability to communicate in English in a hypothetical question posed to a vocational expert during a hearing, we will find it to be out of scope for the purposes of determining disability.

Comment: Several commenters asserted that this rule would cause more appeals, would increase the disability hearings backlog, and would increase our administrative costs.

Response: The changes in this final rule are straightforward, and represent an incremental change to our larger disability evaluation process. An estimated increase of 22,382 hearings spread over the 10-year period of fiscal years (FY) 2020-2029 is small relative to the number hearings we hold annually (for example, we made over 700,000 hearing decisions in FY 18). 78 Therefore, we do not anticipate difficulty administering the changes with current resources. We have not seen evidence to indicate that the proposed rule, as implemented, would substantially increase the number of pending hearings, or that it would impose unmanageable administrative costs. See the “E.O. 12866” section of the preamble, further below, for our specific estimates of administrative costs associated with this rule.

Comment: Some commenters expressed that they supported the proposed rules because they believed the rules would allow us to more fairly assess education and account for increased diversity in the U.S. One commenter said that the proposed rules would allow us to adjudicate disability claims more equitably. Another commenter criticized the current rules, opining that the rules may impose social and political stigmas upon non-English speaking individuals. One commenter asserted that measuring English abilities is neither an effective, nor a culturally sensitive way to assess an individual's ability to work.

Response: We acknowledge and note the commenters' support for the rule. As stated above, we expect that the revisions will help us better assess the vocational impact of education in the disability determination process.

Comment: Many commenters said the proposed rules would have a negative effect on vulnerable populations, such as immigrants, older people, women, refugees, individuals with low-income, and individuals with LEP. Some commenters expressed the proposed rules would have a disparate impact and discriminatory effect on thousands of older, non-English-speaking citizens. Other commenters were concerned that the proposed rules would result in the denial of benefits to a large number of claimants.

One commenter said that denial and loss of benefits would cause economic harm to the affected claimants. Another commenter noted that the proposed rules could contribute to “generational poverty.” One commenter, citing Dorsey v. Bowen, 828 F.2d 246, (4th Cir. 1987), noted that the “Social Security Act is a remedial statute to be broadly construed and liberally applied in favor of beneficiaries.” This commenter asserted that we are strictly construing the Act against the most vulnerable of our citizens.

Another commenter said that the Supreme Court has interpreted that discrimination based on language or English proficiency is a form of national origin discrimination. Another commenter said that we should undertake an analysis of the potential discriminatory impact of the proposed rules.

One commenter said discrimination by government against taxpayers because of their race or national origin is strictly prohibited under the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. Some commenters said the proposed rules discriminate against individuals based on their national origin, race, or immigration status. One such commenter contended that the proposed rules demonstrate a hostility towards non-native born Americans.

Response: We disagree with the commenters' statements that this rule will have a negative effect on vulnerable populations; is discriminatory in intent or effect; or that it is motivated by hostility towards a certain group of people. We have not seen any evidence (nor did the commenters present any) that the proposed rules, as implemented, would negatively affect vulnerable populations, because we will continue to assess other eligibility criteria for such populations besides the ability to communicate in English.

In response to claims that the rule is discriminatory, we note that the new rule, once implemented, will apply the same standards for evaluating educational level to all claimants, regardless of country of origin or residence and primary language. Similarly, we strongly disagree with the statement that our rule was motivated by hostility towards a certain group of people. Like all Federal agencies, we are obligated to serve all members of the public equally. We take that responsibility seriously, and we do not discriminate against individuals based on race, age, gender, language, national origin, immigration status, or for any other reason. We intend for this rule to help us better assess the vocational factor of education in the contemporary work environment for all claimants and beneficiaries.

The proposed rule also does not violate the equal protection component of the Due Process Clause of the Fifth Amendment. In the NPRM, we articulated a basis for no longer distinguishing between those who are unable to communicate in English and those who are able to communicate in English at step 5 of the sequential evaluation process. Further, under this final rule, we will apply the same standard in assessing education for all claimants. This final rule does not categorize individuals based on any particular identities, nor does it deprive an individual of a protected property interest. Our regulations provide due process to individuals with appropriate procedural protections. This final rule is consistent with the constitutional principles of equal protection.

Finally, the principle that the Act should be “broadly construed” in favor of beneficiaries does not mean that we should not, or may not, revise our rules to account for changes in the national workforce. The quoted statement is an interpretative standard sometimes applied by the courts in the judicial review of agency decisions; it does not mean that we are required to develop rules that only favor beneficiaries, or that do not result in any program and administrative savings.

Comment: Some commenters asserted that the proposed rules are “arbitrary and capricious.”

Response: The commenters appear to be referring to the standard that courts apply when they review rules promulgated after informal rulemaking. 79 Under this standard, the agency must examine the relevant data and articulate a satisfactory explanation for its action, including a rational connection between the facts found and the choice made. A rule may be arbitrary and capricious, for example, if an agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. 80 None of that is true here. In this rulemaking, the final rule is supported by the objective data we have provided, and we have explained our justifications for the proposed change in the NPRM and this final rule in detail. The final rule is not inconsistent with the Act or any other Federal law, and we have considered and responded to the significant concerns raised by the commenters. Our rule therefore cannot be considered “arbitrary or capricious” under the law.

Comment: Some commenters asserted that our proposed rules conflicted with various legal authorities. A few commenters opined that the NPRM conflicted with Federal laws that protect the rights of persons with LEP, who experience discrimination in health care, employment, and public services, under Title VI of the Civil Rights Act of 1964 and implementing regulations. One commenter stated that the NPRM violated Executive Order 13166, which directs Federal agencies to ensure that all persons with LEP should have meaningful access to federally-conducted and federally-funded programs and activities.

Response: This final rule does not violate the Civil Rights Act of 1964, its implementing regulations, Executive Order 13166, or any other provision of Federal law. We are eliminating a rule that reflected the existence of jobs in the economy for certain individuals who were unable to communicate in English at the time we issued it in 1978. The final rule we are adopting today simply reflects the changes in the national workforce since 1978, and the greater existence of jobs for individuals with LEP. When the final rule takes effect, we will no longer consider an individual's English proficiency when determining an individual's education. Such a rule does not preclude individuals with LEP from having meaningful access to our programs; it merely updates our rules to reflect that an inability to communicate in English is no longer a useful indicator of an individual's educational attainment or of the vocational impact of an individual's education.

We remain committed to fulfilling our responsibilities and obligations towards individuals with LEP, and this final rule is fully consistent with Federal laws that protect the rights of persons with LEP. We have a longstanding commitment to ensure that individuals with LEP have equal access to our programs. For example, we provide free interpreter services, 81 and Social Security information is publicly available in several languages. 82 This final rule has no effect on these services, which ensure that all individuals with LEP will continue to have meaningful access to our programs.

Comment: Multiple commenters asserted that our NPRM does not align with DHS's NPRM, “Inadmissibility on Public Charge Grounds,” published on October 10, 2018. 83 Specifically, these commenters cited the following excerpt from the DHS NPRM: “an inability to speak and understand English may adversely affect whether an alien can obtain employment. Aliens who cannot speak English may be unable to obtain employment in areas where only English is spoken. People with the lowest English speaking ability tend to have the lowest employment rate, lowest rate of full-time employment, and lowest median earnings.”  84 The commenters also noted Census data research DHS had cited to support this assertion. Commenters expressed that the two proposed rules were not in accordance with each other because the DHS proposal stated that an ability to speak English directly affects the ability to find work, whereas our proposal stated that an ability to speak English is irrelevant for an individual's ability to find employment.

Response: Because we administer different programs with different legal mandates than DHS does, our proposed rule explored different aspects of job availability and English proficiency data than DHS did. For the purposes of our programs and the population we are examining, we believe the data we reviewed and presented supports our final rule consistent with our statutory mandate to consider, among other things, an individual's education and the existence of work in the national economy. DHS's legal mandate is to determine whether an alien (that is, a non-citizen, non-U.S. national person) seeking admission to the United States or adjustment of status to that of a lawful permanent resident is likely at any time in the future to become a public charge. We are not projecting the likelihood of LEP individuals being hired for particular types of jobs, i.e. those that would make the alien more likely to be self-sufficient. We are only stating that jobs exist in the national economy that LEP individuals perform. Finally, some of the commenters inaccurately characterized our NPRM as stating that the ability to speak English is irrelevant to finding work. We did not make this assertion. Rather, we stated that, as a result of changes in the national workforce over the last 40 years, we no longer consider English proficiency to be an appropriate proxy for assessing an individual's education level as part of our disability determination process.

Comment: Some commenters supported this proposal based on their assumption that it would improve Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) program integrity and save money. One commenter expressed the view that we would prevent an estimated 10,500 adults  85 with “manageable work limitations” from receiving SSDI or SSI disability benefits, keeping more resources for those who are “truly needy.”

Response: The purpose of this final rule is not to save money or to make it more difficult for individuals to qualify for disability benefits. Rather, we anticipate that this final rule will allow us to better assess the vocational impact of an individuals' education on their ability to work in the contemporary work environment. Finally, we note that our standard for determining disability is based on the criteria in the Act and our regulations, and not whether an individual has “manageable work limitations” or whether the individual is “truly needy.”

Comment: Some commenters asserted that the criteria for qualifying for disability benefits are already strict enough, and that we should not impose additional restrictions or barriers to qualifying for benefits.

Response: The rule does not create additional restrictions or barriers to qualifying for benefits; rather, it is modifying the way in which we assess educational level achieved, which is an existing category we examine. As discussed above and in the NPRM, since 1978, the national workforce has become more linguistically diverse, and employment rate and LFPR have expanded considerably for individuals with LEP. This final rule thus recognizes that English proficiency is no longer an appropriate proxy for assessing education as part of our disability determination process.

Comment: Some commenters said that the inability to communicate in English is not a disability, suggesting our rules equated it with being disabled.

Response: We note that inability to communicate in English is one of many factors we consider in determining disability under the current rules. An inability to communicate in English by itself is not a determinative factor when determining whether an individual is disabled under our current rules.

Comment: One commenter stated that we should not pursue a final rule because we had not completed a full Regulatory Impact Analysis (RIA) for the regulation. Other commenters opined that the NPRM did not account for significant and foreseeable costs to society. These commenters asserted that burdens created by this rule would increase costs to state and local governments and community organizations, because they would likely spend more on things such as general assistance and homelessness assistance to meet the needs of those harmed by this rule.

Response: As we report below and as we reported in the NPRM, we expect this final rule will have a financial impact on the Social Security trust fund of over $100 million a year. 86 Regulations that have annual effect on the economy of $100 million or more are deemed economically significant and have additional analytical requirements under E.O. 12866, such as requiring an RIA. Our Office of the Chief Actuary estimated this rule would technically meet this threshold: For the period of FY 2020 through FY 2029, they estimated a reduction of $4.5 billion in Federal Old Age, Survivors, and Disability Insurance (OASDI) benefit payments and a reduction of $0.8 billion in Federal SSI payments. However, we have adequately accounted for the direct effects of this rulemaking through our analysis of transfer impacts and administrative costs. While not a separate RIA document, we believe the evaluations completed in the NPRM and this final rule fulfill our obligation to review the direct effects of the rulemaking. Some of the costs mentioned by commenters, such as money spent on homelessness assistance, are out of the scope of our rulemaking and associated analysis.

A Regulatory Flexibility Act (RFA) analysis is also required for rules that have a significant economic impact on a substantial number of small entities (SISNOSE); the commenters allude to this requirement with their assertion that this rule will “increase costs to state and local governments and community organizations.” Specifically, the RFA  87 requires an RFA analysis under the following circumstances: “[w]henever an agency is required . . . to publish general notice of proposed rulemaking for any proposed rule, . . . the agency shall prepare and make available for public comment an initial regulatory flexibility analysis.” That analysis must “describe the impact of the proposed rule on small entities.” In addition, when the agency subsequently publishes a final rule, it must “prepare a final regulatory flexibility analysis.” The requirement to prepare an initial or final regulatory flexibility analysis, however, “shall not apply to any proposed or final rule if the head of the agency certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” The agency must publish such certification in the Federal Register when it publishes its notice of proposed rulemaking or final rule, “along with a statement providing the factual basis for such certification.” The agency must provide a copy of its certification and accompanying statement to the Chief Counsel for Advocacy of the Small Business Administration. Because this final rule only directly affects individuals, it will not impose any direct costs on small entities, including small government jurisdictions. We consider the potential costs commenters cited to be indirect, and as such they would be outside the scope of our SISNOSE determination.

Comment: One commenter indicated that we should not require individuals to speak English to receive disability benefits. Another commenter opposed the proposed rules because, according to the commenter, we may deny benefits to people who cannot speak because of a medical impairment.

Response: The comment implies that this final rule would require individuals to speak English to receive disability benefits. Neither the current rule nor this final rule requires individuals to be able to communicate in English to obtain benefits. When this final rule becomes effective, whether or not an individual is able to communicate in English will be irrelevant for the purposes of disability determination.

This final rule does not affect people who cannot speak because of a medical impairment. As we explained earlier, we will continue to evaluate medical impairment-related speech difficulties under our rules to determine whether these limitations meet a listing or preclude the individual from performing substantial gainful work.

Comment: Several commenters opposed the proposed rule, contending that LEP individuals with disabilities face barriers to learning English. They noted that the assumption underlying the proposed rule is that LEP individuals with disabilities can learn English in order to work. They argued that we did not acknowledge that cognitive and physical disabilities might interfere with their ability to learn a new language. Other commenters opposed the proposal on the grounds that many individuals with LEP may not have the resources ( e.g., time, money, access to classes) to learn a new language. Other commenters opined that an inability to learn a new language might indicate that the person has challenges in adjusting to new work. These commenters argued that difficulty in learning to communicate in English can therefore be a proxy for difficulty learning the duties of a job, and for this reason, we should retain “inability to communicate in English.”

Response: Many of these comments are outside the scope of our proposal and disability program. We do not consider whether an individual is able to learn English under the current rules. We also do not need the factor “inability to communicate in English” to determine whether an individual is likely to have difficulty learning the duties of a job. We already consider an individual's cognitive and physical limitations related to MDIs that may interfere with an individual's ability to perform basic work activities. This final rule does not change this.

Comment: One commenter said we should not apply the proposed rules to individuals who may otherwise be eligible for disability under the “arduous unskilled work” medical-vocational profile. 88 To be found disabled under the profile, an individual must possess no more than a marginal education and must have spent 35 years performing arduous unskilled work. The commenter expressed that even if such an individual has had more than a marginal education in another country, it did not allow him or her to do anything other than the arduous unskilled work. The commenter argued that we should not penalize such an individual for having an education that does not serve him or her in the U.S.

Response: Under our final rule, inability to speak English will no longer be a proxy for education. For individuals who fall under the arduous unskilled physical labor profile, we will still examine their years of history performing solely arduous unskilled physical labor. As well, we will more closely examine the actual education level attained. Since we will still look at education and work history, individuals who fall under the profile will not be disadvantaged.

Comment: One commenter found it problematic that the proposed rules would bar an adjudicator from lowering an individual's education category based on “inability to communicate in English.” The commenter also noted that claimants who participated in an English learner program but remain unable to communicate in English likely did not attain the level of reasoning, arithmetic, and language abilities that the person was supposed to have gained. The commenter reasoned that such individuals could not have developed educational abilities due to inability to communicate in English, and we should therefore consider this in our proposal.

Response: We agree that in cases where individuals receive elementary or secondary education in a language other than their primary language, the language learning process may or may not affect their actual educational attainment. Our current regulations acknowledge that the numerical grade level completed in school may not represent an individual's actual educational abilities, which may be higher or lower. 89 Therefore, to the extent supported by individual case evidence, we will continue to consider the related impact on educational abilities when assigning an education category in these cases.

Comment: One commenter opposed the proposed rule, citing a decline in American high school graduates' foreign language skills as a reason. The commenter said that only 20 percent of today's high school graduates have taken a foreign language class, and that colleges have closed 651 foreign language programs between 2013 and 2016. The commenter cited this data to support the assertion that many future employers would be unable to communicate even simple statements with foreign language-speaking employees. The commenter implied that this would affect the workforce, and that we failed to consider such effects in our rulemaking.

Response: The evidence we cited in the proposed rule and repeated here, demonstrates that many individuals with LEP are currently in the labor force; this indicates that their employers' potential inability to converse with them in their primary language is not a barrier to employment. 90 Further, our rulemaking (and rulemaking in general) can only contemplate evidence that actually exists; it is outside the scope of rulemaking to consider an assumption about whether future employers will be able to communicate in a foreign language to accommodate their employees with LEP.

Comment: We received comments that we should retain the “inability to communicate in English” for health and work safety reasons. Some commenters asserted that individuals with LEP in the national workforce are at a greater risk for occupational injuries and illnesses, most often due to language barriers. They claimed the proportion of fatal and nonfatal workplace injuries experienced by immigrants has been increasing. 91

Similarly, another commenter said we should not adopt the proposed rules because some employers may require English language proficiency for safety reasons. The commenter further noted that employers might prefer to hire those who can communicate in English to avoid workers' compensation claims from accidents due to an inability to understand safety instructions.

Response: While we acknowledge the importance of safety in the workplace, it is outside the scope of our program to assess safety concerns associated with jobs a worker may be able to perform. As discussed above, in determining whether a claimant can adjust to other work, we do not consider the hiring practices of employers or whether the individual is likely be hired to do particular work, among other things. 92 As we stated above, the Act requires us only to determine whether a claimant can perform any substantial gainful work which exists in the national economy.

Comment: Some commenters said we should wait to adopt the proposed rules because we may propose additional revisions to other rules relating to disability determinations in the near future. The commenters said there will be more changes to the disability determination process because of a forthcoming new information system and vocational tool and they asked that we not incorporate revisions to current rules in a piecemeal or a premature manner.

Response: The possibility that we may propose other revisions in the future is not a reason to delay revisions that are currently warranted (based on the reasons we have articulated in the NPRM and here).

Comment: One commenter opined that this final rule would undermine the current occupational base that has served as the basis for the grid rules. As an example, the commenter noted that SSA has taken administrative notice of approximately 1,600 sedentary and light occupations in the national economy at the unskilled level. Based on this fact, the commenter asserted that the grid rules assume that a person with either light or sedentary work capacity, but who would be classified as “unable to communicate in English,” would not actually be able to perform the 1,600 unskilled light and sedentary occupations. The commenter stated that, accordingly, we would now need to reassess all of our work categories, and document evidence that a significant number of jobs are actually available for individuals who cannot communicate in English.

Response: We disagree with the commenter's conclusions, as the commenter's foundational statements reflect incorrect assumptions. While the current grid rules do reflect the “inability to communicate in English” as a factor to consider, they are not, in fact, based on the assumption that full English proficiency is required to engage in all of the 1,600 sedentary and light occupations in the national economy at the unskilled level. The existing occupational base does not distinguish between jobs that require or do not require English proficiency. Rather, the occupational base reflects the existence of unskilled sedentary, light, medium, and heavy jobs that exist in the national economy.

Comment: One commenter asserted that we withdrew a 2005 NPRM that proposed to revise the vocational factor of age  93 due to insufficient evidentiary support. The commenter drew a parallel between that NPRM and this rule, recommending that we withdraw this rule because, in the commenter's stated opinion, we had failed to provide conclusive supporting research for this rule and the 2005 NPRM.

Response: We disagree with this comment, because our decision not to finalize the 2005 NPRM that proposed revising the rules on the vocational factor of age was not due to a lack of adequate justification. As well, the commenter did not provide any evidence demonstrating that we had failed to provide sufficient supporting research for the 2005 NPRM. For this final rule, as explained previously, we presented sufficient supporting evidence to justify our changes, both in the NPRM and again here.

Comment: A few commenters asserted that we incorrectly claimed that the education level of non-English speakers in the workforce has increased over time.

Response: We did not claim that the education level of individuals who are unable to communicate in English in the workforce has increased over time. We clarify that in the NPRM, we noted that out of all claimants who reported an inability to read, write, or speak English in FY 2016, 49% (58,175) of title II claimants and 39% (49,943) of title XVI claimants completed a high school education or more. 94 We cited this data to show that many people who reported an inability to read, write, or speak English do have a high school education or more. We do not suggest that this data shows that educational attainment increased over the years for individuals who are unable to communicate in English.

We will begin to apply this final rule to new applications, pending claims, and CDRs, as appropriate, as of the effective date of this final rule. 95

We consulted with OMB and determined that this final rule meets the criteria for an economically significant regulatory action under Executive Order 12866, as supplemented by Executive Order 13563. Therefore, OMB reviewed the rule. Details about the economic impacts of our rule follow.

Our Office of the Chief Actuary estimates, based on the best available data, that this final rule will result in a reduction of about 6,000 OASDI beneficiary awards per year and 3,800 SSI recipient awards per year, on average, for the period FY 2020-29, with a corresponding reduction of $4.5 billion in OASDI benefit payments and $0.8 billion in Federal SSI payments for the total period of FY 2020-29.

The Office of Budget, Finance, and Management estimates administrative costs of $90 million (840 work years)  96 for the 10-year period from FY 2020 through FY 2029. Although we included administrative cost estimates for the disability determination services (DDS) in our NPRM, we are now using a revised cost estimate methodology that does not allow us to calculate the total administrative costs for SSA and DDS separately. Administrative costs include considerations such as system enhancements, potential appeals, and additional time needed to process initial disability claims and CDRs.

As mentioned above, the rule will result in a $90 million administrative cost to the government for the 10-year period from FY 2020 through FY 2029. However, we believe the qualitative benefits of ensuring the disability determination criteria we use are up-to-date and reflective of the current economy (specifically, for this rule, the criteria we use to determine an individual's education level) justifies this one-time cost. This final rule will also help us to fulfill our statutory obligation to be the best possible stewards of the Social Security programs.

We also determined that this final rule meets the plain language requirement of Executive Order 12866.

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), OMB designated this rule as a major rule, as defined by 5 U.S.C. 804(2).

We analyzed this final rule in accordance with the principles and criteria established by Executive Order 13132, and determined that it will not have sufficient Federalism implications to warrant the preparation of a Federalism assessment. We also determined that the final rule will not preempt any State law or State regulation or affect the States' abilities to discharge traditional State governmental functions.

Based upon the criteria established in Executive Order 13771, we have identified the anticipated administrative costs as follows: The final rule is anticipated to result in administrative costs of $90 million and 840 work years for the period of FY 2020 through FY 2029. See the E.O. 12866 section above for further details on these costs.

This rule is designated a 13771 “regulatory” action.

We certify that this final rule will not have a significant economic impact on a substantial number of small entities because it affects individuals only. Therefore, the Regulatory Flexibility Act, as amended, does not require us to prepare a regulatory flexibility analysis.

This final rule contains public reporting requirements in the regulation sections listed below, or will require changes in the forms listed below, which we did not previously clear through an existing Information Collection Request.

Below is a chart showing current burden estimates (time and associated opportunity costs) for all ICRs due to the implementation of the regulation. None of the burdens associated with these ICRs will change as a result of this final rule.

We are submitting an Information Collection Request for clearance to OMB. We are soliciting comments on the burden estimate; the need for the information; its practical utility; ways to enhance its quality, utility, and clarity; and ways to minimize the burden on respondents, including the use of automated techniques or other forms of information technology. If you would like to submit comments, please send them to the following locations:

You can submit comments until March 26, 2020, which is 30 days after the publication of this notice. To receive a copy of the OMB clearance package, contact the SSA Reports Clearance Officer using any of the above contact methods. We prefer to receive comments by email or fax.

For the reasons stated in the preamble, we are amending 20 CFR part 404, subpart P, and part 416, subpart I, as set forth below:

On October 21, 2019 (84 FR 56156), the EPA proposed to approve the following rule into the California SIP.

We proposed to approve this rule because we determined that it complies with the relevant CAA requirements. Our proposed action contains more information on the rule and our evaluation.

The EPA's proposed action provided a 30-day public comment period. During this period, we received 2 comments supporting EPA's approval of Rule 67.21 for the protection of human health and the environment.

No comments were submitted that change our assessment of the rules as described in our proposed action. Therefore, as authorized in section 110(k)(3) of the Act, the EPA is fully approving this rule into the California SIP.

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the SDCAPCD rule described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these documents available through www.regulations.gov and at the EPA Region IX Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the 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);

• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;

• 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 Clean Air Act; and

• Does not provide the 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, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this 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 April 27, 2020. 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 may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows: