The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2024-1002; Project Identifier MCAI-2022-01574-R” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this proposal because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to regulations.gov, including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this NPRM.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Dan McCully, Aviation Safety Engineer, FAA, 1600 Stewart Ave., Suite 410, Westbury, NY 11590; telephone (404) 474-5548; email william.mccully@faa.gov. Any commentary that the FAA receives that is not specifically designated as CBI will be placed in the public docket for this rulemaking.

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2022-0246, dated December 12, 2022 (EASA AD 2022-0246), to correct an unsafe condition for all Airbus Helicopters Model AS 350 B, AS 350 BA, AS 350 B1, AS 350 B2, AS 350 BB, AS 350 D, AS 355 E, AS 355 F, AS 355 F1, AS 355 F2, and AS 355 N helicopters.

This proposed AD was prompted by reports of debonding on the stainless steel leading edge protection of certain part-numbered MRBs. The FAA is proposing this AD to address the debonding of the MRB leading edge protection. The unsafe condition, if not detected and corrected, could lead to significant unbalance of the main rotor, a high level of vibration, failure of the main rotor, failure of the main gearbox, and subsequent loss of control of the helicopter.

EASA AD 2022-0246 requires repetitively tap inspecting affected MRBs and, depending on findings, either repairing or replacing the MRB. For certain helicopters, EASA AD 2022-0246 prohibits installing an affected MRB unless it is a serviceable part as defined within and is inspected following installation. For other certain helicopters, EASA AD 2022-0246 prohibits installing an affected MRB.

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

The FAA also reviewed Airbus Helicopters Alert Service Bulletin No. AS350-05.01.07 and No. AS355-05.00.91, both Revision 0 and dated December 6, 2022. This service information specifies procedures for tap inspecting the stainless steel leading edge protection of the MRB and, depending on the results, repairing or sending the MRB for repair to Airbus Helicopters. The service information also specifies sending certain information to Airbus Helicopters.

These helicopters have been approved by EASA and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the European Union, EASA has notified the FAA about the unsafe condition described in its AD. The FAA is proposing this AD after evaluating all known relevant information and determining that the unsafe condition described previously is likely to exist or develop on other helicopters of these same type designs.

This proposed AD would require accomplishing the actions specified in EASA AD 2022-0246, described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this proposed AD and except as discussed under “Differences Between this Proposed AD and the EASA AD.”

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, the FAA proposes to incorporate EASA AD 2022-0246 by reference in the FAA final rule. This proposed AD would, therefore, require compliance with EASA AD 2022-0246 in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Using common terms that are the same as the heading of a particular section in EASA AD 2022-0246 does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2022-0246. Service information referenced in EASA AD 2022-0246 for compliance will be available at regulations.gov under Docket No. FAA-2024-1002 after the FAA final rule is published.

EASA AD 2022-0246 applies to Model AS350BB helicopters, whereas this proposed AD would not because that model is not FAA-type certificated.

The FAA estimates that this AD, if adopted as proposed, would affect 405 helicopters of U.S. Registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates the following costs to comply with this proposed AD.

Tap inspecting affected MRBs for disbonding would take up to approximately 1 work-hour (up to three MRBs per helicopter) for an estimated cost of up to $85 per helicopter and $34,425 for the U.S. fleet, per inspection cycle. Replacing a blade would take approximately 6 work-hours and parts would cost up to approximately $84,000 for an estimated cost of up to $84,510 per MRB. The FAA has no data to determine the cost of or the number of helicopters that might need the MRB repaired.

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

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

The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this proposed regulation:

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

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

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

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend the airway structure as necessary to preserve the safe and efficient flow of air traffic within the National Airspace System.

The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should submit only one time if comments are filed electronically, or commenters should send only one copy of written comments if comments are filed in writing.

The FAA will file in the docket all comments it receives, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, the FAA will consider all comments it receives on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. The FAA may change this proposal in light of the comments it receives.

Privacy: In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.

An electronic copy of this document may be downloaded through the internet at www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Operations office (see ADDRESSES section for address, phone number, and hours of operations). An informal docket may also be examined during normal business hours at the office of the Western Service Center, Federal Aviation Administration, 2200 South 216th St., Des Moines, WA 98198.

United States Area Navigation Routes are published in paragraph 6011 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document proposes to amend the current version of that order, FAA Order JO 7400.11H, dated August 11, 2023, and effective September 15, 2023. These updates would be published in the next update to FAA Order JO 7400.11. That order is publicly available as listed in the ADDRESSES section of this document.

FAA Order JO 7400.11H lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

On December 29, 2022, the FAA expanded Restricted Area R-2206 in the vicinity of Clear, AK. The expansion of this restricted area impeded the airway structure in the area at the time. Due to these impediments, the FAA amended several airways and established others to provide routing around the expanded restricted area. RNAV route T-399 was one of these routes and was established on December 29, 2022. Although the current design of T-399 does provide the appropriate separation between the route and R-2206, air traffic controllers at the Anchorage Air Route Traffic Control Center (ZAN ARTCC) have identified that additional lateral separation is needed, especially during periods when the ARTCC surveillance radar is limited. The SEAHK, AK, waypoint (WP) on T-399 is a turn point where northbound aircraft change from a northern flight path to a northeastern flight path and where southbound aircraft change from a southwest path to south. At times, aircraft initiate this turn prior to the SEAHK WP, causing air traffic controllers to intervene to ensure proper separation is maintained. This proposed amendment would relocate the SEAHK waypoint approximately 2.3 nautical miles (NM) to the west. Doing so would increase this segment of T-399s lateral spacing from R-2206, providing a 5 NM buffer from all areas of R-2206. This proposed route amendment would also require the inclusion of the EVIEE, AK, WP in the route description. The waypoint EVIEE is currently on T-399 but due to it not being a turning point, it is not included in the route description. This proposed amendment would make the EVIEE WP a turning point, thus requiring its inclusion in the route description. The EVIEE WP would be added to the route description between the PAWWW, AK, WP and the SEAHK, AK, WP.

The FAA is proposing an amendment to 14 CFR part 71 to amend RNAV Route T-399 in the vicinity of Clear, AK. This proposed amendment would increase the lateral separation between the RNAV route and Restricted Area R-2206. Specifically, the SEAHK, AK, WP would be relocated approximately 2.3 NM west from its current location. The SEAHK WP would be renamed to the WHYTT, AK, WP.

T-399: T-399 currently extends between the Talkeetna, AK (TKA), Very High Frequency Omnidirectional Range/Distance Measuring Equipment (VOR/DME) and the Nenana, AK (ENN), VOR/Tactical Air Navigation (VORTAC). The FAA proposes to move the SEAHK, AK, WP approximately 2.3 NM to the west and rename the route point to the WHYTT, AK, WP. Additionally, the FAA proposes to include the EVIEE, AK, WP in the route description. The EVIEE WP would be added between the PAWWW, AK, WP and the SEAHK, AK, WP.

The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

The Federal Trade Commission issues this notice of proposed rulemaking (“NPRM”) to invite public comment on a proposed amendment to the TSR that would require inbound technical support (“tech support”) calls to comply with the Rule. 1 The Rule is currently framed to exempt from its requirements: (1) calls initiated by a customer in response to an advertisement through any medium, and (2) calls initiated by a customer in response to a direct mail solicitation. 2 The proposal would specifically exclude tech support calls from these inbound call exemptions. The NPRM also explains the Commission's decision to refrain from proposing changes to the TSR that would: (1) require a notice and cancellation mechanism with negative option sales or (2) further address business to business (“B2B”) calls. 3

This NPRM invites written comments on all issues raised by the proposed amendment, including answers to the specific questions set forth in Section IV of this Notice. The Commission has issued a final rule—published elsewhere in this same issue of the Federal Register —that, among other things, will require telemarketers and sellers to maintain additional records of their telemarketing transactions and prohibit material misrepresentations and false or misleading statements in B2B telemarketing calls.

Congress enacted the Telemarketing and Consumer Fraud and Abuse Prevention Act (“Telemarketing Act” or “Act”) in 1994 to curb deceptive and abusive telemarketing practices and provide anti-fraud and privacy protections for consumers receiving telephone solicitations to purchase goods or services. 4 The Telemarketing Act directed the Commission to adopt a rule prohibiting deceptive or abusive telemarketing practices, including prohibiting telemarketers from undertaking a pattern of unsolicited calls that reasonable consumers would consider coercive or abusive of their privacy, restricting the time of day telemarketers may make unsolicited calls to consumers, and requiring telemarketers to promptly and clearly disclose that the purpose of the call is to sell goods or services. 5 The Act also directed the Commission to address in its rule other acts or practices that it found to be deceptive or abusive, including acts or practices of entities or individuals that assist and facilitate deceptive telemarketing, and to consider including recordkeeping requirements. 6 Finally, the Act authorized State Attorneys General, or other appropriate State officials, and private litigants to bring civil actions in federal district court to enforce compliance with the FTC's rule. 7

Pursuant to the Act's directive, the FTC promulgated the TSR on August 23, 1995. 8 Since then, the Commission has amended the Rule's substantive provisions on four occasions: (1) in 2003 to, among other things, create the National Do Not Call Registry and extend the Rule to telemarketing calls soliciting charitable contributions;  9 (2) in 2008 to prohibit calls playing a recorded message (“robocalls”) selling a good or service or soliciting charitable contributions;  10 (3) in 2010 to ban the telemarketing of debt relief services requiring an advance fee;  11 and (4) in 2015 to bar the use in telemarketing of certain novel payment mechanisms widely used in fraudulent transactions. 12

On June 3, 2022, the Commission issued an advance notice of proposed rulemaking (“ANPR”) and a separate notice of proposed rulemaking (“June NPRM”)  13 concerning several potential changes to the TSR. The June NPRM proposed amending the TSR's recordkeeping requirements and requiring B2B calls to comply with the TSR's prohibitions on several types of misrepresentations. 14 The TSR currently excludes most B2B calls from the Rule's coverage. 15 The ANPR sought comment on: (1) whether to further modify the TSR's treatment of B2B calls including removing the exemption entirely; (2) whether the Rule should require sellers of negative option products to provide consumers notice before they are billed and a simple mechanism to cancel the negative option; and (3) whether to extend the Rule to apply to inbound tech support calls.

The Commission received seven comments that addressed whether the Rule should require a notice and cancellation mechanism with negative option sales. 16 Six of the comments supported creating additional protections for negative option sales, and one opposed any changes.

The Professional Association for Customer Engagement (“PACE”) opposed any changes to the Rule to address negative options. PACE claimed many consumers “embrace negative option offers” and regularly check their bank statements to identify and stop unwanted recurring charges. 17 PACE also argued requiring sellers or telemarketers to give notice to consumers before they are billed for recurring payments would “amount to yet another nuisance.”  18

The other six commenters supported amending the Rule to create greater protections for negative option sales. Three of those comments expressed general support for the Rule requiring notice and a simple cancellation method for negative options sales. 19 The National Association of Attorneys General (“NAAG”), and the Electronic Privacy Information Center, along with thirteen other consumer organizations (“EPIC”), observed that negative options continue to grow in popularity. 20 NAAG's comment “echoes sentiments expressed by State AGs for more than a decade,” though those sentiments were directed to negative options generally as opposed to the specific benefits or risks of negative options sold by telemarketing. 21 NAAG noted negative option plans have become “increasingly prevalent” over the past decade “especially as home delivery became more popular during the COVID-19 pandemic.”  22 EPIC cited a prediction made by UBS that the “subscription economy” will more than double by 2025, and it noted the rise of a “cottage industry” to help consumers manage and cancel their subscriptions. 23

Commenters also expressed concern for rules that would create inconsistent regulation of negative options. The Third Party Payments Association (“TPPA”) urged the FTC to use its rule making authority to “promulgate consistent requirements across its various rules, regardless of sales channel, means of communication and/or method of obtaining payment authorization.”  24 EPIC also noted Visa and Mastercard require sellers to provide advance notice before the end of a trial period, and it cautioned “leaving these safeguards up to individual companies will create a patchwork of different policies.”  25

At the same time the Commission has been considering amendments to the Rule, it has also been considering a broader rule that would address negative option sales regardless of the method through which the sale is made. On October 2, 2019, the Commission issued an advance notice of proposed rulemaking regarding the need for a “Rule Concerning the Use of Prenotification Negative Option Plans,”  26 and on April 24, 2023, the Commission issued a notice of proposed rulemaking (“Negative Option NPRM”). 27 The Negative Option NPRM would apply to sales calls made by telephone. It proposes a rule that would, among other things: require a clear and conspicuous disclosure of the negative option feature and its conditions; require sellers to obtain consumers' express informed consent to the negative option transaction; and require sellers to provide a simple mechanism to cancel the negative option that is at least as easy as the method used to initiate the transactions. Because the proposed Negative Option Rule addresses the commenters' suggestions including the preference for a rule that would apply to all transactions, instead of potentially creating different regulatory regimes depending on the sales channel, the Commission will not amend the TSR to address negative option transactions at this time.

The Commission received fifteen comments addressing the ANPR's question of whether the Commission should modify the TSR's B2B provision beyond the proposal in the June NPRM that would subject B2B calls to the TSR's prohibitions on misrepresentations. Ten comments supported removing the B2B exemption entirely, and five comments opposed making any changes. Eight of the ten comments supporting removing the B2B provision were made by consumers. 28 Two of the consumers referred to the B2B exemption as a “loophole,” and one complained about receiving unwanted B2B telemarketing calls. 29

NAAG and EPIC supported removing the B2B exemption entirely. NAAG called the exemption a “relic of a bygone era.”  30 NAAG cited data showing that: in 2020 more than 62% of U.S. households did not have a landline; in 2020 only 26% of employees have employer-provided mobile phones; and in 2018 36% of workers participated in the gig economy in some capacity. 31 EPIC noted the “operational realities of work have changed” and the TSR should be amended to better reflect those realities. 32

Several commenters who opposed making any changes to the Rule argued the Commission lacks the legal authority to remove the B2B exemption because the Telemarketing Act is focused on harms to consumers. 33 Three commenters supported keeping the B2B exemption without modification. The Chamber of Commerce asserted the B2B exemption “has proven beneficial to the business community.”  34 The Revenue Based Finance Coalition (“RBFC”) argued additional regulation of business activities is unwarranted “given the sophistication of the parties to the transaction” and regulation could “increase the cost of capital available to small businesses.”  35 TPPA also noted its members use telemarketing to engage with and acquire potential customers. 36

The Commission is persuaded that it is appropriate to modify the B2B exemption to require compliance with the TSR's prohibitions on misrepresentation and false or misleading statements but not to require compliance with all other TSR requirements. The comments do not provide sufficient support to warrant modifying the B2B exemption beyond the proposal in the ANPR that would require all B2B calls to comply with the TSR's prohibitions on misrepresentations. The ANPR sought information about the market for B2B telemarketing generally, including whether businesses appreciate B2B telemarketing as a way to sell or buy products. The ANPR also sought comment on whether businesses believe they are harmed by B2B telemarketing or subject to unwanted B2B calls. The Commission noted it is “particularly interested in seeking comment on the number of sellers or telemarketers who engage in telemarketing to businesses”  37 and it asked about the kinds of goods or services that are sold through B2B telemarketing, as well as how often businesses receive B2B telemarketing calls. 38 Only three comments addressed these broader questions. TPPA claimed its members rely on telemarketing to sell their products, and two anonymous commenters claimed they receive an excessive volume of B2B telemarketing calls. 39 As NAAG and EPIC described, the Commission recognizes the increasing interchangeability of personal and business phones. But, as a whole, these comments do not adequately address the nature or scope of relevant problems, and they do not enable the Commission to assess related harm flowing from B2B telemarketing in order to craft proposed changes that would mitigate or address such harm. The Commission will consider further modifications to the B2B exemption at a later date if the record demonstrates any modifications may be warranted.

The Commission received ten comments addressing whether the TSR should require inbound tech support calls to comply with the TSR. Nine comments supported the proposal: six filed anonymously or by consumers and three filed by organizations. 40 NAAG “wholeheartedly” agreed with the proposal and believed that amending the TSR will have a “substantial effect” on tech support scams. 41 NAAG stated the scams “have become one of the most prevalent scams in the nation over the past few years.”  42 EPIC also supported the proposal and noted the “serious nature of this fraud is comparable to that in the transactions already singled out for coverage of inbound calls.”  43 USTelecom—The Broadband Association (“USTelecom”) also supported the proposal, noting tech support scams are a “significant menace for both consumers and businesses.”  44

TPPA opposed “prohibiting inbound telemarketing calls.”  45 TPPA acknowledged these scams disproportionately affect older adults, but it contended those problems will “diminish over time” as consumers become more familiar with technology. 46 TPPA also cautions that “prohibiting” inbound tech support calls could raise conflicts with the FTC's Policy Statement on Repair Restrictions, create confusion for consumers and businesses, and “unduly burden legitimate business activity by prohibiting Inbound telemarketing of technical support services.”  47

As explained below, the scope and severity of injury from tech support scams, including their impact on older adults, warrants amending the TSR. 48 The Commission is mindful of concerns the proposed amendment may unduly burden businesses, and the Commission seeks comment on whether the proposed Rule will burden businesses and how any undue burdens can be ameliorated.

Tech support scams can begin in a variety of ways. Sometimes the scammer places outbound calls to consumers warning them their computers have been infected. 49 Other scammers use deceptive computer pop-up messages that claim the consumer's computer has a problem and direct the consumer to call a phone number to fix the errors. 50 Still other scammers place advertisements with search engines that appear when consumers search for their computer company's tech support telephone number. 51 And sometimes, scammers pay computer security software companies so that when consumers call to activate their service, they reach the scammer and are pitched additional and unnecessary products and services. 52 Once consumers connect with the scammer, whether through outbound telemarketing or inbound telemarketing, the scammers deceive consumers about a variety of problems with their computers and dupe consumers into purchasing subscription tech support services or software they do not need. 53

Although tech support scams have typically targeted consumers looking for help with computers, tech support scams also target consumers looking for help with other electronic devices, such as cellular phones and smart home devices. News stories report on consumers encountering tech support scams when they search for help with their iPhones  54 or look for support for their Kindle tablets. 55 In August 2022, Amazon filed a lawsuit alleging a tech support operation targeted consumers who were seeking help with their smart home doorbells and streaming video services. 56

Consumer complaints about tech support scams have increased dramatically over the last few years, ranging from approximately 40,000 complaints in 2017 to nearly 115,000 complaints in 2021. 57 In 2018, consumers reported losing more than $55 million to these scams, with an average individual loss of approximately $400, and an average individual loss of approximately $500 for consumers over the age of 60. 58

Moreover, tech support scams disproportionately harm older consumers, with consumers 60 years of age and older being five times more likely to report a financial loss to tech support scams compared to younger consumers. 59 Data shows tech support scams have consistently caused such disproportionate harm to older consumers. From 2015 to 2018, older consumers filed more reports on tech support scams than on any other fraud category. 60

The Commission has responded to tech support scams through consumer education and law enforcement actions. For consumer education, the Commission has issued guidance to consumers including “How to Spot, Avoid, and Report Tech Support Scams,”  61 and “Keep tech support strangers out of your computer.”  62 The Commission has also responded to particular tech support campaigns with consumer education such as “Fake Calls from Apple and Amazon Support: What you need to know,”  63 “No gift cards for tech support scammers,”  64 and “FTC asking for access to your computer? It's a scam.”  65 Other government agencies and consumer organizations have also issued guidance on tech support scams. 66

In addition to consumer education, the Commission and other State and Federal law enforcement partners have brought a multitude of actions against tech support scams. For example, on May 12, 2017, the Commission announced “Operation Tech Trap” which consisted of 29 law enforcement actions brought by the Commission and other law enforcement agencies against tech support schemes. 67 On March 7, 2019, the Department of Justice announced the largest-ever elder fraud sweep, which focused on tech-support scams and involved actions against “more than 260 defendants from around the globe who victimized more than two million Americans.”  68 The Commission has filed numerous tech support cases outside the scope of the sweeps. 69

While the Commission has sued tech support scams for engaging in deceptive practices under the TSR where applicable, the Commission has brought cases under the FTC Act alone if the telemarketer's practices could arguably fall within an exception to the TSR. In FTC v. PCCare247, for example, the Commission used the FTC Act to seek monetary relief from a tech support operation that placed deceptive online advertisements to induce consumers to place inbound calls. 70 The calls at issue in PCCare 247 may have fallen outside of the Rule to the extent they were telephone calls initiated by a consumer in response to an advertisement. 71 Similarly in FTC v. Vylah Tec LLC, the Commission used the FTC Act to seek monetary relief from a tech support operation that lured consumers by placing deceptive pop up messages warning consumers their computers had been infected with viruses. 72 The calls at issue in Vylah Tec may have fallen outside the Rule if a court were to determine that pop-up messages are a form of advertisement or a direct mail solicitation under the Rule. 73

In April 2021, the Supreme Court's decision in AMG Capital Management, LLC v. FTC overturned forty years of precedent from the U.S. Circuit Courts of Appeal that held the Commission could take action under the FTC Act to return money unlawfully taken from consumers through deceptive practices. 74 As a result, the Commission is now limited in its ability to obtain monetary relief from tech support scams whose business practices, in some cases, arguably place the scams beyond the reach of the Rule. Amending the Rule will clarify all tech support scams are potentially subject to the Rule.

The proposed rule would define “technical support service” and amend the exemptions for calls in response to advertisements and calls in response to direct mail solicitations, to add technical support services to the categories of calls excluded from the exemptions.

The proposed rule defines technical support services as “any plan, program, software or service that is marketed to repair, maintain, or improve the performance or security of any device on which code can be downloaded, installed, run, or otherwise used, such as a computer, smartphone, tablet, or smart home product.” This definition is broad enough to encompass a wide range of electronic devices.

A broad definition is necessary because, in the Commission's experience, tech support scams have shown an ability to evolve with changes in consumer behavior and technology. The Commission's first actions against tech support scams involved telemarketers making outbound calls to consumers in which the telemarketer claimed to be a Microsoft technician who had identified a virus on the consumer's computer. 75 As consumers learned that Microsoft does not call consumers to warn them about viruses on their computers, tech support scams began relying on intrusive popup messages that claimed the computers had been infected with viruses. 76 As web browsers began blocking popup messages, tech support scammers have taken other means to reach consumers, including placing advertisements that solicit inbound calls from consumers looking for tech support. 77 The techniques scammers use to alarm consumers have also evolved. Early tech support scams relied on “red x's” in a computer's event viewer while later scams have instructed consumers to download software programs that run diagnostics of computers and exaggerated the risks the diagnostics reveal. 78 Scammers have also evolved from targeting computers to also targeting a variety of electronic devices. 79

The unifying characteristic of tech support scams is that scammers attempt to profit from consumers' problems with technology and potential lack of familiarity with complicated electronic devices. As technology changes, tech support scams are likely to change as well, and the definition of tech support in the proposed rule is intended to be broad enough to encompass these changes.

The definition of tech support also excludes “any plan, program, software, or services in which the person providing the repair obtains physical possession of the device being repaired.” In the Commission's experience, tech support scams have not involved situations where the repair includes physical interaction with the device, such as replacing a computer hard drive or repairing a broken phone screen. 80 Whether this interaction involves face-to-face contact between the consumer and the person providing the repair or the consumer shipping the device to the repair person and waiting for a return shipment, the Commission believes tech support scams rarely involve physical repair of electronic devices. 81 The Rule currently exempts calls in which payment is not required until “after a face-to-face sales or donation presentation by the seller.”  82 In creating that exemption, the Commission explained the “occurrence of a face-to-face meeting limits the incidence of telemarketing deception and abuse” because the “paradigm of telemarking fraud involves an interstate telephone call in which the customer has no other direct contact with the caller.”  83 Here too, the “paradigm” of tech support scams are consumers speaking with third parties with whom they have limited contact and often at a time when they have been misled to believe they have a problem with their electronic device. Physical in-person repair does not involve the same pressures as remote tech support, and it is less conducive to scams. The Commission seeks comment on the proposed definition of tech support.

The proposed rule would add “tech support services” to the categories of calls excluded from the TSR's exemptions for inbound calls “in response to an advertisement through any medium” and inbound calls in response to “a direct mail solicitation,” including email. 84 The Commission created these exemptions in the original Rule based on its consideration of four factors: whether Congress intended certain types of sales activity to be exempt under the Rule; whether the conduct or business in question “already is regulated extensively by Federal or State law”; whether the conduct “lends itself easily to the forms of deception or abuse that the Act is intended to address”; and whether requiring business to comply the Rule would be “unduly burdensome weighed against the likelihood that sellers or telemarketers engaged in fraud would use an exemption to circumvent Rule coverage.”  85

The Commission decided to create exemptions from the rule for calls in response to advertisements and direct mail solicitation because, in the Commission's experience, calls in response to these solicitations “do not typically involve the forms of deception and abuse the Act seeks to stem.”  86 At the same time, the Commission recognized “some deceptive sellers or telemarketers use mass media or general advertising to entice their victims to call, particularly in relation to the sale of investment opportunities, specific credit-related programs” and other areas. 87 The Commission decided to exclude certain categories of calls from the exemptions given its “experience with the marketing of these deceptive telemarketing schemes.”  88 The Commission's experience with tech support schemes also supports excluding tech support calls from the exemptions for inbound calls in response to advertisements and direct mail solicitations.

The Commission is mindful of the potential burden the proposed amendment may have on tech support businesses that do not engage in deceptive practices. The proposed amendment has been drafted in an attempt to minimize the burden on these businesses, and the Commission seeks comment on whether the burden would be undue or can be further reduced.

Two features of the proposed amendment would minimize the burden on legitimate tech support businesses. First, tech support calls “that are not the result of any solicitation by a seller, charitable organization, or telemarketer” would still be exempt under § 310.6(b)(5). As the Commission recognized when it created this exemption, these type of calls are not “part of a telemarketing `plan, program, or campaign * * * to induce the purchase of goods or services' under the Act.”  89 The Commission further explained: “This exemption covers incidental uses of the telephone that are not in response to a direction solicitation, e.g., calls from a customer . . . to obtain information or customer technical support.”  90 Under this exemption, as long as the call is not solicited, a consumer calling their computer manufacturer for technical support or a home security company about a disruption to their service would not be subject to the Rule unless, as part of that transaction, the company also engaged in an upsell. 91

Second, excluding tech support where the person providing the service takes physical possession of the device will also limit the breadth of the rule. Consumer calls to a local repair shop or to the manufacturer of their device seeking physical repairs will not be subject to the Rule. The Commission seeks comment on whether it should consider other approaches to reduce any burden imposed by the Rule.

The Commission seeks comments on all aspects of the proposed regulation. The Commission also seeks comments on the estimated burden that compliance with the proposed regulations will impose on sellers and telemarketers. In their replies, commenters should provide any available evidence and data that supports their position, such as empirical data on the costs of complying with the proposed amendment.

You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before June 17, 2024. Write “Telemarketing Sales Rule (16 CFR 310—NPRM) (Project No. R411001)” on your comment. Your comment including your name and your State will be placed on the public record of this proceeding, including, to the extent practicable, on the https://www.regulations.gov website.

Because of the agency's heightened security screening, postal mail addressed to the Commission will be subject to delay. We strongly encourage you to submit your comment online through the https://www.regulations.gov website. To ensure the Commission considers your online comment, please follow the instructions on the web-based form.

If you file your comment on paper, write “Telemarketing Sales Rule (16 CFR 310—NPRM) (Project No. R411001)” on your comment and on the envelope, and mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW, Mail Stop H-144 (Annex T), Washington, DC 20580. If possible, please submit your paper comment to the Commission by overnight service.

Because your comment will be placed on the publicly accessible website, https://www.regulations.gov, you are solely responsible for making sure your comment does not include any sensitive or confidential information. In particular, your comment should not include any sensitive personal information, such as your or anyone else's Social Security number; date of birth; driver's license number or other State identification number, or foreign country equivalent; passport number; financial account number; or credit or debit card number. You are also solely responsible for making sure your comment does not include any sensitive health information, such as medical records or other individually identifiable health information. In addition, your comment should not include any “trade secret or any commercial or financial information which . . . is privileged or confidential.” 15 U.S.C. 46(f); see FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2). In particular, your comment should not include competitively sensitive information such as costs, sales statistics, inventories, formulas, patterns, devices, manufacturing processes, or customer names.

Comments containing material for which confidential treatment is requested must be filed in paper form, must be clearly labeled “Confidential,” and must comply with FTC Rule 4.9(c), 16 CFR 4.9(c). In particular, the written request for confidential treatment that accompanies the comment must include the factual and legal basis for the request and must identify the specific portions of the comment to be withheld from the public record. See FTC Rule 4.9(c), 16 CFR 4.9(c). Your comment will be kept confidential only if the General Counsel grants your request in accordance with the law and the public interest. Once your comment has been posted publicly at www.regulations.gov, as legally required by FTC Rule 4.9(b), 16 CFR 4.9(b), we cannot redact or remove your comment from the FTC website, unless you submit a confidentiality request that meets the requirements for such treatment under FTC Rule 4.9(c), 16 CFR 4.9(c), and the General Counsel grants that request.

Visit the FTC website to read this document and the news release describing it. The FTC Act and other laws the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. The Commission will consider all timely and responsive public comments it receives on or before June 17, 2024. For information on the Commission's privacy policy, including routine uses permitted by the Privacy Act, see https://www.ftc.gov/site-information/privacy-policy.

In addition to the issues raised above, the Commission solicits public comment on the list of questions below regarding the costs and benefits of the proposed amendment. The Commission requests that comments provide the factual data upon which they are based. These questions are designed to assist the public and should not be construed as a limitation on the issues on which a public comment may be submitted.

1. Should the Commission finalize the proposed rule as a final rule? Why or why not? How, if at all, should the Commission change the proposed rule in promulgating a final rule?

2. Is the definition of “technical support service” clear and understandable? It is ambiguous in any way? How, if at all, should it be improved?

3. Is the definition of “technical support service” appropriately tailored? Is it overinclusive or underinclusive in any way? How, if at all, should it be improved?

4. Do you support excluding from the definition of technical support instances in which the person providing the repair obtains physical possession of the device being repaired? Why or why not?

5. Do you support the proposal to add technical support services to the list of calls that do not qualify for the exemptions for calls in response to advertisements and direct mail solicitations in § 310.6(b)(5) and § 310.6(b)(6)? Should the Commission consider other modifications to the Rule to address tech support scams?

6. Would the proposed rule place an undue burden on technical support operations that do not engage in deceptive acts or practices? If so, what burden would it impose and how can the burden be reduced?

7. Do you agree with the estimates in the Paperwork Reduction Analysis? Why or why not?

8. How many new calls would be subject to the TSR if the proposed rule is adopted?

9. Would the proposed rule disproportionately benefit or burden original equipment manufacturers? If so, how should the proposed rule be changed?

The current Rule contains various provisions that constitute information collection requirements as defined by 5 CFR 1320.3(c), the definitional provision within the Office of Management and Budget (“OMB”) regulations implementing the Paperwork Reduction Act (PRA). 44 U.S.C. chapter 35. OMB has approved the Rule's existing information collection requirements through October 31, 2025 (OMB Control No. 3084-0097). The proposed amendment will newly require certain inbound tech support calls to comply with the Rule's recordkeeping and disclosure requirements. This will increase the PRA burden for sellers or telemarketers as detailed below. Accordingly, FTC staff is simultaneously submitting this notice of proposed rulemaking and the associated Supporting Statement to OMB for review under the PRA. 92

The Commission estimates the PRA burden of the proposed amendment based on its knowledge of the telemarketing industry and data compiled from the Do Not Call Registry. The annual hours of burden for sellers or telemarketers will consist of two components: the time required to make disclosures and the costs of complying with the Rule's recordkeeping requirements.

First the Commission estimates that the disclosure burden will take 19,566 hours. Calculating the disclosure burden requires estimating the number of inbound tech support calls that will now be subject to the TSR if the proposed amendment goes into effect. The Commission uses the same methodology it has used in the past to calculate the disclosure burden for categories of calls that are excluded from the TSR's exemptions for inbound calls. 93

As it has in the past, the Commission estimates that there are 1.8 billion inbound telemarketing calls that result in sales, that consumer injury from telemarketing fraud is $40 billion a year, and that it takes seven seconds to make the disclosures required by the Rule in inbound calls. 94 The Commission estimates the disclosure burden for particular categories of calls that are excluded from the TSR's exemptions by extrapolating a percentage of those calls based on their complaint rates in the FTC's Consumer Sentinel system. 95 The resulting percentage of total fraud complaints must be adjusted to reflect the fact that only a relatively small percentage of telemarketing calls are fraudulent. To extrapolate the percentage of fraudulent telemarketing calls, staff divides a Congressional estimate of annual consumer injury from telemarketing fraud ($40 billion)  96 by available data on total consumer and business-to-business telemarketing sales ($310.0 billion projected for 2016), 97 or 13%. The two percentages are then multiplied together to determine the percentage of the 1.8 billion annual inbound telemarketing calls represented by each type of fraud complaint. That number is then rounded to the nearest ten. In 2022, there were 2,369,527 fraud complaints and 89,158 complaints about tech support. 98 Thus, the general sales disclosure burden is 19,566 hours (1.8 billion inbound calls ×the percentage of fraud complaints for tech support (89,158/2,369,527) ×the percentage of telemarketing calls that are estimated to be fraudulent (.13) ×the length of the disclosures (8 seconds per disclosure, ÷ 3,600 to convert to hours).

Second, the estimated recordkeeping burden is 104,250 hours. Estimating this burden requires estimating how many new telemarketing entities will be subject to the TSR if the proposed amendment goes into effect. To create this estimate, staff first estimates the number of existing telemarketing entities that engage in tech support sales. In calendar year 2022, 10,804 telemarketing entities accessed the Do Not Call Registry; however, 549 were “exempt” entities obtaining access to data. 99 Of the non-exempt entities, 6,562 obtained data for a single State. Staff assumes that these 6,562 entities are operating solely intrastate, and thus would not be subject to the TSR. Therefore, staff estimates that approximately 3,693 telemarketing entities (10,804—549 exempt—6,562 intrastate) are currently subject to the TSR. To estimate the percentage of those entities that sell tech support products and services, staff again relies on the percentage of fraud complaints for tech support out of the total fraud complaints. (89,158/2,369,527) which is multiplied by the number of telemarketing entities, (3,693) to produce the estimate that 139 telemarketing entities receive tech support calls.

If the proposed amendment goes into effect, additional businesses will likely be covered by the TSR. For example, tech support companies that advertise their products through general advertisements and do not engage in upselling may be subject to the Rule for the first time. 100 On the other hand, companies that market through a combination of advertisements and outbound telemarketing are already subject to the Rule. Companies that receive inbound calls from consumers with questions about their products who then engage in upsells of technical support services are also already subject to the Rule. The Commission estimates that the Proposed amendment will increase the number of telemarketing entities that receive inbound tech support calls by a factor of 5, which would mean that an additional 695 entities will be covered by the Rule.

The Commission estimates that after implementation of the separate Final Rule proceeding which, among other things, requires telemarketers and sellers to maintain additional records of their telemarketing transactions, complying with the TSR's current recordkeeping requirements requires 150 hours for new entrants to develop recordkeeping systems that comply with the TSR, for a total annual recordkeeping burden of 104,250 hours. 101

The Commission estimates annual labor costs by applying appropriate hourly wage rates to the burden hours described above. The Commission estimates that the annual labor cost for disclosures will be $315,991. This total is the product of applying an assumed hourly wage of $16.15 for 19,566 hours of disclosures. 102 The Commission estimates that the annual labor cost for recordkeeping will be $3,228,623. This is calculated by applying a skilled labor rate of $30.97/hour  103 to the estimated 150 burden hours for the estimated 695 entities that will now be covered by the Rule ($30.97 × 150 × 695).

The final rule published in this same issue of the Federal Register estimates that the annual non-labor costs are $55 a year, derived from $5 for electronically storing audio files, and $50 for storing the required records. The Commission thus estimates that the annual non-labor costs will be $38,255 (695 entries × $55).

The Commission invites comments on the accuracy of the FTC's burden estimates, including whether the methodology and assumptions used are valid. Specifically, the Commission invites comments on: (1) whether the proposed collection of information is necessary for the proper performance of the functions of the FTC, including whether the information will have practical utility; (2) the accuracy of the FTC's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of collecting information on those who respond.

Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to www.reginfo.gov/public/do/PRAMain. Find this particular information collection by selecting “Currently under Review—Open for Public Comments” or by using the search function. The reginfo.gov web link is a United States Government website produced by OMB and the General Services Administration (GSA). Under PRA requirements, OMB's Office of Information and Regulatory Affairs (OIRA) reviews Federal information collections.

The Regulatory Flexibility Act (“RFA”), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, requires that the Commission conduct an analysis of the anticipated economic impact of the proposed amendment on small entities. 104 The RFA requires that the Commission provide an Initial Regulatory Flexibility Analysis (“IRFA”) with a proposed rule unless the Commission certifies that the rule will not have a significant economic impact on a substantial number of small entities. 105

The Commission believes that the proposed amendment would not have a significant economic impact upon small entities, nor will it affect a substantial number of small businesses. In the Commission's view, the proposed amendment should not significantly increase the costs of small entities that are sellers or telemarketers. Therefore, based on available information, the Commission certifies that amending the Rules as proposed will not have a significant economic impact on a substantial number of small entities, and hereby provides notice of that certification to the Small Business Administration (“SBA”). Nonetheless, the Commission has determined that it is appropriate to publish an IRFA to inquire into the impact of the proposed amendment on small entities. The Commission invites comment on the burden on any small entities that would be covered and has prepared the following analysis.

The Commission proposes amending the TSR to explicitly exclude tech support calls from the exemptions for inbound calls by consumers in response to advertisements and direct mail solicitations from tech support services. As described in Section IV, the proposed amendment is intended to address the widespread harm caused by deceptive tech support services, which disproportionately impact older consumers compared to younger ones.

The objective of the proposed amendment is to lessen the harm caused by deceptive tech support scams. The legal basis for the proposed amendment is the Telemarketing Act, which authorizes the Commission to issue rules to prohibit deceptive or abusive telemarketing practices.

The proposed amendment to the Rule affects sellers and telemarketers that sell technical support services through inbound telemarketing calls that are made in response to advertisements and direct mail solicitations. As noted above, staff estimates that there are 695 such entities that would be covered by the Rule. For telemarketers, a small business is defined by the SBA as one whose average annual receipts do not exceed $25.5 million. 106 It is not possible to identify how many of these entities would be a small business as defined by the SBA. Commission staff are unable to determine a precise estimate of how many sellers or telemarketers constitute small entities as defined by SBA. The Commission invites comment and information on this issue.

The proposed amendment would require sellers and telemarketers that sell technical support services through inbound telemarketing calls that are made in response to advertisements and direct mail solicitations to comply with the TSR's disclosure and recordkeeping requirements. The small entities potentially covered by the proposed amendment will include all such entities subject to the Rule. The Commission has described the skills necessary to comply with these recordkeeping requirements in Section VI above on the Paperwork Reduction Act.

The Commission has not identified any other Federal statutes, rules, or policies currently in effect that may duplicate, overlap or conflict with the proposed amendment. The Commission invites comment and information regarding any potentially duplicative, overlapping, or conflicting Federal statutes, rules, or policies.

The Commission believes that there are no significant alternatives to the proposed amendment but is seeking comment on whether the proposed rule places an undue burden on technical support operations that do not engage in deceptive acts or practices and, if so, how can the burden be reduced. The Commission has over many years pursued alternatives to the proposed amendment in the form of law enforcement and consumer outreach. The continued injury caused by these scams shows that the proposed amendment to the Rule is necessary.

Written communications and summaries or transcripts of oral communications respecting the merits of this proceeding, from any outside party to any Commissioner or Commissioner's advisor, will be placed on the public record. 107

The United States Patent and Trademark Office proposes new rules governing the process for the review of Patent Trial and Appeal Board decisions in AIA proceedings by the Under Secretary of Commerce for Intellectual Property and Director  1 of the United States Patent and Trademark Office.

This Notice of Proposed Rulemaking (NPRM) provides that a party to an AIA proceeding may request Director Review in that AIA proceeding of any decision on institution, any final written decision, or any decision granting rehearing of a decision on institution or a final written decision. The NPRM also sets forth the timing and format of a party's request for Director Review. In addition, the NPRM provides that the Director may initiate a review of any decision on institution, any final written decision, or any decision granting rehearing of a decision on institution or a final written decision on the Director's own initiative.

The NPRM addresses the impact of Director Review on the underlying proceeding at the PTAB, as well as the time by which an appeal to the U.S. Court of Appeals for the Federal Circuit must be filed.

On September 16, 2011, Congress enacted the AIA (Pub. L. 112-29, 125 Stat. 284 (2011)). The AIA established the PTAB, 2 which is made up of administrative patent judges (APJs) and four statutory members, namely the Director, the Deputy Director, the Commissioner for Patents, and the Commissioner for Trademarks. 35 U.S.C. 6(a). The Director is appointed by the President, by and with the advice and consent of the Senate. 35 U.S.C. 3(a)(1). APJs are appointed by the Secretary of Commerce in consultation with the Director. Id. 6(a). The PTAB hears and decides ex parte appeals of adverse decisions by examiners in applications for patents, applications for reissue, and reexamination proceedings, and proceedings under the AIA, including inter partes reviews (IPRs), post grant reviews (PGRs), covered business method (CBM) patent reviews, 3 and derivation proceedings, all in panels of at least three members. Id. 6(b), (c). Under the statute, the Director designates the members of each panel. Id. 6(c). The Director has delegated that authority to the Chief Judge of the PTAB. See PTAB Standard Operating Procedure 1 (Rev. 15) (SOP 1), Assignment of Judges to Panels, available at www.uspto.gov/sites/default/files/documents/SOP%201%20R15%20FINAL.pdf.

35 U.S.C. 6(c) states that “[o]nly the Patent Trial and Appeal Board may grant rehearings” of Board decisions. In United States v. Arthrex, Inc. (“ Arthrex” ), the Court held that the Appointments Clause of the Constitution (art. II, sec. 2, cl. 2) and the supervisory structure of the USPTO require the Director, a principal officer of the United States, to have the ability to review the PTAB's final written decisions in IPR proceedings. See United States v. Arthrex, Inc., 141 S. Ct. 1970, 1986 (2021). The Court determined that “35 U.S.C. 6(c) is unenforceable as applied to the Director insofar as it prevents the Director from reviewing the decisions of the PTAB on [the Director's] own.” Id. at 1987. The Court added that:

Id. The Court thus held that “the Director has the authority to provide for a means of reviewing PTAB decisions” in IPR proceedings and “may review final PTAB decisions and, upon review, may issue decisions [ ] on behalf of the Board.” Id. (citations omitted). Additionally, the Court in Arthrex made clear that “the Director need not review every decision of the PTAB,” nor did it require the Director to accept requests for review or issue a decision in every case. Id. at 1988. Instead, “[w]hat matters is that the Director have the discretion to review decisions rendered by APJs.” Id. See Arthrex, Inc. v. Smith & Nephew, Inc., 35 F.4th 1328, 1338 (Fed. Cir. 2022) (noting same); CyWee Group Ltd. v. Google LLC, 59 F.4th 1263, 1268 (Fed. Cir. 2023) (“ `[T]he Appointments Clause was intended to prevent unappointed officials from wielding too much authority, not to guarantee procedural rights to litigants, such as the right to seek rehearing from the Director.' ” (quoting Piano Factory Grp., Inc. v. Schiedmayer Celesta GmbH, 11 F.4th 1363, 1374 (Fed. Cir. 2021)).

Following the Arthrex decision, in June 2021 the USPTO implemented an interim process for Director Review of final written decisions in AIA proceedings and published Arthrex Questions and Answers (Q&As), which was available on a USPTO web page. On April 22, 2022, the USPTO published two web pages to replace the Arthrex Q&As. Specifically, the USPTO published an “Interim Process for Director Review” web page, 4 setting forth more details on the interim process and additional suggestions and guidance for parties who wish to request Director Review. The USPTO also published a web page providing the status of all Director Review requests, available at www.uspto.gov/patents/patent-trial-and-appeal-board/status-director-review-requests (status web page). The status web page includes a spreadsheet that is updated monthly and has information about the proceedings in which Director Review has been granted. The updated interim process guidance increased clarity as the Office continued to update and improve the interim Director Review process based on experience and initial stakeholder feedback.

On July 20, 2022, the USPTO issued an RFC  5 on Director Review, Precedential Opinion Panel (POP) review, 6 and the internal circulation and review of PTAB decisions. 87 FR 43249-52. 7 The RFC is discussed in detail below. The USPTO considered stakeholder comments to the RFC as it worked to formalize the proposed rules for Director Review. The Office has continued to revise the interim Director Review process while also pursuing rulemaking.

On July 24, 2023, the USPTO modified the interim Director Review process to allow parties to request Director Review of decisions on institution in AIA proceedings, and to introduce a process by which the Director may delegate review of a Board decision to a Delegated Rehearing Panel (DRP). See “Revised Interim Director Review Process” web page (available at www.uspto.gov/patents/ptab/decisions/revised-interim-director-review-process, also called the Director Review web page); “Delegated Rehearing Panel” web page (available at www.uspto.gov/patents/ptab/decisions/delegated-rehearing-panel ). These changes were based on the Office's experience with Director Review and stakeholder feedback. The USPTO made additional updates to the interim Director Review process on September 18, 2023, (updating processes related to Director Review of PTAB decisions on remand from the Director) and January 19, 2024 (updating processes related to requests for rehearing of Director Review decisions).

The rule proposed in this NPRM is consistent with the interim process. If the USPTO issues a final rule, the Director Review web page will be updated when the rule becomes effective. After the rule becomes effective, any further modifications to the Director Review process will be consistent with the rule and will be reflected on the Director Review web page.

As noted above, on July 20, 2022, the Office published an RFC on Director Review, POP review, and the internal circulation and review of PTAB decisions. 87 FR 43249-52. The RFC included the following questions pertinent to Director Review:

1. Should any changes be made to the interim Director Review process, and if so, what changes and why?

2. Should only the parties to a proceeding be permitted to request Director Review, or should third-party requests for Director Review be allowed, and if so, which ones and why?

3. Should requests for Director Review be limited to final written decisions in IPR and PGR? If not, how should they be expanded and why?

4. Should a party to a proceeding be able to request both Director Review and rehearing by the merits panel? If so, why and how should the two procedures interplay?

5. What criteria should be used in determining whether to initiate Director Review?

6. What standard of review should the Director apply in Director Review? Should the standard of review change depending on what type of decision is being reviewed?

7. What standard should the Director apply in determining whether or not to grant sua sponte Director Review of decisions on institution? Should the standard change if the decision on institution addresses discretionary issues instead of, or in addition to, merits issues?

8. Should there be a time limit on the Director's ability to reconsider a petition denial? And if so, what should that time limit be?

9. Are there considerations the USPTO should take with regard to the fact that decisions made on Director Review are not precedential by default, and instead are made and marked precedential only upon designation by the Director?

10. Are there any other considerations the USPTO should take into account with respect to Director Review?

11. Should the POP review process remain in effect, be modified, or be eliminated in view of Director Review? Please explain.

12. Are there any other considerations the USPTO should take into account with respect to the POP process?

Id. at 43252.

The RFC closed on October 19, 2022, and the Office received comments from intellectual property organizations, trade organizations, other organizations, and individuals. These comments are available at www.regulations.gov/docket/PTO-P-2022-0023/comments (collected responses to RFC). Responses to the specific questions asked in the RFC pertinent to Director Review or POP review are summarized briefly below.

In response to question 2, many commenters suggested that only parties to the proceeding should be permitted to request Director Review, consistent with the interim process. Some of these commenters suggested that limiting Director Review requests to the parties best promotes judicial economy and efficiency as the parties are best positioned to present the issues on review. Notably, some of these commenters also suggested that third parties could still participate when appropriate, either through amicus briefing or joinder. Other commenters suggested that allowing third-party requests would be preferred because PTAB decisions often have broad ramifications that affect non-parties.

In response to question 3, some commenters suggested that Director Review should be available for both final written decisions and decisions on institution, and especially for denials of institution. Some commenters argued that no other review mechanism existed for review of decisions on institution. 8 Other commenters suggested that Director Review should be available only for final written decisions, in part out of efficiency concerns. One commenter suggested that Director Review should be available for ex parte reexaminations and ex parte appeals. As discussed above, based on experience and in response to stakeholder feedback, the USPTO expanded the interim Director Review process to allow parties to request Director Review of decisions on institution in AIA proceedings.

In response to question 4, commenters were divided as to whether, consistent with the interim process, parties should be permitted to request either Director Review or panel rehearing, but not both. Those in favor of allowing parties to file requests for both types of rehearing argued that a decision may include some issues more appropriate for the original panel to reconsider, and other issues more appropriate for the Director to review. Those in favor of permitting parties to request only one form of rehearing argued that this reduces duplication, waste, inefficiency, and delay. Moreover, some argued that requiring a choice between panel rehearing and Director Review avoids potentially conflicting analyses between the Director and the panel.

In response to question 5, commenters did not agree on the criteria that should be used in determining whether to initiate Director Review. Some commenters suggested that Director Review should apply to issues of policy, while others suggested that policy should be made by formal rulemaking only. Similarly, some commenters stated that Director Review should be limited to important issues, such as policy, or statutory or regulatory interpretation, while others suggested that Director Review should consider all panel errors and abuses of discretion.

In response to question 6, some commenters suggested that the Director should apply de novo review for all issues on review. These commenters suggested that a standard that is deferential to the Board panel would not provide clear guidance. Other commenters favored de novo review on the basis that Arthrex requires the Director to substitute the Director's own judgment.

In response to question 7, commenters were divided on the appropriate standard for initiating sua sponte Director Review ( i.e., on the Director's own initiative). Some commenters suggested that the same standard of review should apply for all decisions, including sua sponte Director Review. The commenters also suggested that the same standard of review should apply to issues related to both the asserted merits of unpatentability and the Director's discretionary authority to institute an AIA proceeding. Several commenters suggested that sua sponte Director Review should be limited to extraordinary circumstances, including issues of exceptional importance to the USPTO or the patent community. One commenter suggested that sua sponte Director Review should be limited to extraordinary circumstances and only for decisions on institution.

In response to question 8, some commenters suggested that there should be a set time limit on the conclusion of Director Review, in particular when the Director reviews a denial of institution. The commenters generally suggested the need for certainty regarding timing and finality in both the grant of Director Review and the ultimate Director Review decision. One commenter suggested that no time limit would be necessary.

In response to question 9, all responsive commenters suggested that a Director Review decision should not be precedential by default. Some commenters suggested that decisions should be made precedential only when needed to ensure consistency and predictability, and only as applied to certain issues. Some commenters also suggested a clear process with objective criteria for determining when to make cases precedential. Other commenters suggested that a Director Review decision should never be precedential so as to not supplant rulemaking.

In response to questions 11 and 12, commenters were divided on the status of the POP review process. Commenters in favor of eliminating POP review suggested it was redundant with Director Review and that issues previously considered by the POP should be considered under Director Review instead. Commenters in favor of maintaining POP review suggested that it provides input and perspectives from other USPTO leaders, which are important for resolving issues of exceptional importance, policy, and PTAB procedure.

Some commenters provided additional considerations for Director Review and with respect to the interim process (see questions 1 and 10). Some suggested that the Director Review process should consider AIA and policy goals, for example: (1) promoting transparency, consistency, and fairness; (2) improving patent quality and litigation efficiency; and (3) broadening access to the patent system while safeguarding against low-quality patents and abusive behavior. Others suggested that Director Review decisions should explain the basis for granting Director Review and provide a reasoned rationale for each decision. Still others suggested that the USPTO should clarify the criteria used to determine whether to grant Director Review and eliminate overlapping and redundant reviews and rehearing.

The USPTO appreciates the public input provided in response to the RFC and has reviewed the individual responses thoroughly. In view of the comments, the USPTO's experience with the interim Director Review process, and public support for rulemaking with respect to Director Review, and in the interest of providing greater clarity, certainty, and predictability to parties participating in proceedings before the Board, the Office now issues this notice of proposed rulemaking (NPRM).

Under the Director Review process proposed in this NPRM, which is consistent with the current interim process, a party may only request Director Review of: (1) a decision on whether to institute an AIA trial, (2) a final written decision in an AIA proceeding, or (3) a panel decision granting a request for rehearing of a decision on whether to institute a trial or a final written decision in an AIA proceeding. In the course of reviewing such an institution decision, final written decision, or panel rehearing decision, the Director may review any interlocutory decision rendered in reaching that decision. The Director may also grant review of those same decisions sua sponte. Third parties may not request Director Review or communicate with the USPTO concerning the Director Review of a particular case unless the Director invites them to do so.

Under the interim process, as described on the Director Review web page, requests for Director Review of Board decisions on whether to institute an AIA trial, or decisions granting rehearing of such a decision, are limited to decisions presenting: (a) an abuse of discretion, or (b) important issues of law or policy. Issues related to both discretion and the asserted merits of unpatentability may be raised, subject to limitations (a) and (b) above. Under the interim process, requests for Director Review of PTAB final written decisions, or decisions granting rehearing of such decisions, are available for decisions presenting: (a) an abuse of discretion, (b) important issues of law or policy, (c) erroneous findings of material fact, or (d) erroneous conclusions of law.

The interim Director Review process generally follows existing PTAB rehearing procedures under 37 CFR 42.71(d). Similarly, as proposed in this NPRM, to request Director Review, a party to an IPR, PGR, or derivation proceeding must file a request for rehearing pursuant to § 42.71(d) and subject to any further instructions provided by the Director. The Director Review web page further explains that the Director has instructed that parties must both file their rehearing request in the Patent Trial and Appeal Case Tracking System and send an email to the Director at Director_PTABDecision_Review@uspto.gov .

Under the process proposed in this NPRM, a party must file a request for rehearing by the Director within the time prescribed for a request for rehearing under 37 CFR 42.71(d), as appropriate for the type of decision for which review is sought. The Director may choose to extend the rehearing deadline for good cause. A timely request for rehearing by the Director will be considered a request for rehearing under 37 CFR 90.3(b)(1) and will reset the time for appeal to the Federal Circuit as set forth in that rule until a time after which all issues on Director Review in the proceeding are resolved, including any ancillary issues.

As proposed in this NPRM, requests for rehearing by the Director are limited to 15 pages (see § 42.24(a)(1)(v)). A Director Review request may not introduce new evidence.

Moreover, under the process proposed in this NPRM, parties are limited to requesting either: (1) Director Review, or (2) rehearing by the original panel, but may not request both. Requests for both Director Review and panel rehearing of the same decision are treated as a request for Director Review only, as described on the Director Review web page. However, as explained above, parties may request Director Review of a decision by a panel granting rehearing of a prior PTAB decision. “[G]ranting rehearing” here means that the rehearing decision modifies the holding or result of the underlying decision in some fashion. For example, where a Board panel changes the determination of the Final Written Decision for certain claims from unpatentable to not unpatentable in a rehearing decision, the petitioner may file a Request for Director Review of that new determination as to those claims. Rehearing is not “granted,” and thus a Request for Director Review is not available, for purposes of this rule if the panel: (1) provides a decision addressing the arguments in the request for rehearing but does not modify the underlying holding or result, or (2) denies the request for rehearing without further explanation.

Under the interim process, as explained on the Director Review web page, each request for Director Review is considered by an Advisory Committee that the Director has established to assist with the process. The Advisory Committee has at least 11 members and currently includes representatives from various business units within the USPTO who serve at the discretion of the Director. The Advisory Committee currently is chaired by a Director Review Executive and comprises members from the Office of the Under Secretary (not including the Director or Deputy Director); the PTAB (not including members of the original panel for each case under review); the Office of the Commissioner for Patents (not including the Commissioner for Patents or any persons involved in the examination of the challenged patent); the Office of the General Counsel (which includes the Office of the Solicitor); and the Office of Policy and International Affairs. The Advisory Committee meets periodically to evaluate each request for Director Review. 9 Advisory Committee meetings may proceed with fewer than all members in attendance, as long as a quorum of seven members is present.

The Advisory Committee presents the Director with a recommendation. The recommendation includes either a consensus from the various members of the Advisory Committee, or notes differing views among the Advisory Committee members. The Director also receives each Director Review request, the underlying decision, and associated arguments and evidence. The Director determines whether to grant or deny the request for Director Review, or to delegate Director Review. 10 The Director may also consult others in the USPTO as needed, so long as those individuals consulted do not have a conflict of interest. Although the Advisory Committee and other individuals in the USPTO may advise the Director on whether a decision warrants review, the Director has sole discretion to resolve each request for Director Review. The Director's decision on each request will be communicated to the parties in the proceeding. Furthermore, Director Review grants and delegations will be posted on the PTAB website. Other determinations, such as Director Review denials, dismissals, and withdrawals, will be cataloged and posted on the PTAB website.

As proposed in this NPRM, in addition to allowing parties to request Director Review of certain decisions, the Director may order sua sponte Director Review. Under the interim process, as described on the Director Review web page, sua sponte Director Review is typically reserved for issues of exceptional importance, and the Director retains the authority to initiate review sua sponte of any other issue, as the Director deems appropriate. As explained in SOP 4, an internal post-issuance review team at the PTAB reviews issued decisions and, if warranted, flags certain AIA decisions as potential candidates for sua sponte Director Review. See PTAB SOP 4, at 1, 5. In addition, as described on the Director Review web page, the Director may also convene the Advisory Committee to make recommendations on decisions that the Director is considering for sua sponte Director Review. If the Director initiates a sua sponte review, the parties will be given notice and may be given an opportunity for briefing. The public will also be notified, and the Director may request amicus briefing. If briefing is requested, the procedures to be followed will be set forth.

As proposed in this NPRM, absent exceptional circumstances (which might include a remand from the Federal Circuit for the purpose of Director Review), the Director may initiate sua sponte review at any point within 21 days after the expiration of the period for filing a request for rehearing, pursuant to § 42.71(d), as appropriate to the type of decision ( i.e., a decision on institution or a final written decision) for which review is sought.

As proposed in this NPRM, a decision on institution, a final written decision, or a decision granting rehearing of such decision on institution of a final written decision shall become the decisions of the agency unless Director Review is requested or sua sponte review is initiated. Moreover, upon denial of a request for Director Review of a decision denying institution, a final written decision, or a decision granting rehearing of a final written decision, the Board's decision becomes the final agency decision.

As proposed in this NPRM, and consistent with the interim process, by default a request for Director Review or the initiation of sua sponte Director Review resets the time for appeal but does not stay or delay the time for the parties to take action in the underlying proceeding before the PTAB, unless the Director orders otherwise. As also proposed in this NPRM, if the Director grants a Director Review, the Director will issue an order or decision that will be made part of the public record, subject to any confidentiality requirements. A grant of Director Review that is not withdrawn will conclude with the issuance of a decision or order providing the Director's reasoning in the case.

As proposed in this NPRM, and consistent with the interim process, a party may appeal a Director Review decision of a final written decision, or rehearing thereof, to the United States Court of Appeals for the Federal Circuit using the same procedures for appealing other PTAB decisions under 35 U.S.C. 141(c), 319. Director Review decisions on decisions on institution are not appealable.

As proposed in this NPRM, and in consideration of the objectives of the Director Review process, the Director may, at their discretion, delegate the review of a Board decision in an AIA proceeding.

Under the interim process, decisions made on Director Review are not precedential by default, but may be designated as precedential by the Director. Additional implementation details of the interim process are provided on the Director Review web page. If a final rule issues and goes into effect, the Director Review web page will be updated or replaced with updated guidance on the effective date of such a final rule.

As of April 1, 2024, the USPTO had received 328 compliant requests for Director Review under the interim process. Of those requests, the Director Review process was completed for 316 requests. Of the 316 completed requests, 18 requests were granted, 2 requests were delegated to the DRP, 5 requests were withdrawn, and the remaining 291 requests were denied. Additionally, sua sponte Director Review was initiated in 35 cases.

Since July 24, 2023, when the interim process for Director Review was expanded to allow for requests of decisions on institution, the majority of requests received have been from decisions on institution. Specifically, between July 24, 2023, and April 1, 2024, 27 requests for review of final written decisions and 82 requests for review of decisions on institution were received.

The USPTO proposes to add § 42.75, as follows:

Section 42.75: Proposed § 42.75(a) would set forth the general availability of Director Review.

Proposed § 42.75(b) would set forth the availability of sua sponte Director Review.

Proposed § 42.75(c) would set forth the availability of requests for Director Review and request requirements.

Proposed § 42.75(d) would set forth the finality of decisions subject to Director Review.

Proposed § 42.75(e) would set forth the Director Review process.

Proposed § 42.75(f) would provide for the delegation of a review by the Director.

Proposed § 42.75(g) would set forth provisions regarding communications with the Office.

A. Administrative Procedure Act: The changes proposed by this NPRM involve rules of agency practice and procedure, and/or interpretive rules, and do not require notice-and-comment rulemaking. See Perez v. Mortg. Bankers Ass'n, 135 S.Ct. 1199, 1204 (2015) (explaining that interpretive rules “advise the public of the agency's construction of the statutes and rules which it administers” and do not require notice-and-comment rulemaking when issued or amended); Cooper Techs. Co. v. Dudas, 536 F.3d 1330, 1336-37 (Fed. Cir. 2008) (stating that 5 U.S.C. 553, and thus 35 U.S.C. 2(b)(2)(B), do not require notice-and-comment rulemaking for “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice”); and JEM Broadcasting Co. v. F.C.C., 22 F.3d 320, 328 (D.C. Cir. 1994) (explaining that rules are not legislative because they do not “foreclose effective opportunity to make one's case on the merits”).

Nevertheless, the USPTO is publishing this proposed rule for comment to seek the benefit of the public's views on the Office's proposed regulatory changes.

B. Regulatory Flexibility Act: For the reasons set forth in this notice, the Senior Counsel for Regulatory and Legislative Affairs, Office of General Law, USPTO, has certified to the Chief Counsel for Advocacy of the Small Business Administration that the changes set forth in this NPRM would not have a significant economic impact on a substantial number of small entities. See 5 U.S.C. 605(b).

The changes in this NPRM are to expressly set forth the rules governing Director Review. The changes do not create additional procedures or requirements or impose any additional compliance measures on any party beyond the interim process for Director Review, nor do these changes cause any party to incur additional costs. Therefore, any requirements resulting from these proposed changes are of minimal or no additional burden to those practicing before the Board.

For the foregoing reasons, the proposed changes in this NPRM would not have a significant economic impact on a substantial number of small entities.

C. Executive Order 12866 (Regulatory Planning and Review): This NPRM has been determined to be not significant for purposes of Executive Order 12866 (September 30, 1993), as amended by Executive Order 14094 (April 6, 2023).

D. Executive Order 13563 (Improving Regulation and Regulatory Review): The Office has complied with Executive Order 13563 (January 18, 2011). Specifically, and as discussed above, the Office has, to the extent feasible and applicable: (1) made a reasoned determination that the benefits justify the costs of the proposed rule; (2) tailored the proposed rule to impose the least burden on society consistent with obtaining the regulatory objectives; (3) selected a regulatory approach that maximizes net benefits; (4) specified performance objectives; (5) identified and assessed available alternatives; (6) involved the public in an open exchange of information and perspectives among experts in relevant disciplines, affected stakeholders in the private sector, and the public as a whole, and provided online access to the rulemaking docket; (7) attempted to promote coordination, simplification, and harmonization across Government agencies and identified goals designed to promote innovation; (8) considered approaches that reduce burdens and maintain flexibility and freedom of choice for the public; and (9) ensured the objectivity of scientific and technological information and processes.

E. Executive Order 13132 (Federalism): This NPRM pertains strictly to Federal agency procedure and does not contain policies with federalism implications sufficient to warrant the preparation of a Federalism Assessment under Executive Order 13132 (August 4, 1999).

F. Executive Order 13175 (Tribal Consultation): This NPRM will not: (1) have substantial direct effects on one or more Indian tribes; (2) impose substantial direct compliance costs on Indian tribal governments; or (3) preempt tribal law. Therefore, a tribal summary impact statement is not required under Executive Order 13175 (November 6, 2000).

G. Executive Order 13211 (Energy Effects): This NPRM is not a significant energy action under Executive Order 13211 because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects is not required under Executive Order 13211 (May 18, 2001).

H. Executive Order 12988 (Civil Justice Reform): This NPRM meets applicable standards to minimize litigation, eliminate ambiguity, and reduce burden as set forth in sections 3(a) and 3(b)(2) of Executive Order 12988 (February 5, 1996).

I. Executive Order 13045 (Protection of Children): This NPRM does not concern an environmental risk to health or safety that may disproportionately affect children under Executive Order 13045 (April 21, 1997).

J. Executive Order 12630 (Taking of Private Property): This NPRM will not affect a taking of private property or otherwise have taking implications under Executive Order 12630 (March 15, 1988).

K. Congressional Review Act: Under the Congressional Review Act provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq. ), prior to issuing any final rule, the USPTO will submit a report containing the rule and other required information to the United States Senate, the United States House of Representatives, and the Comptroller General of the Government Accountability Office. The changes in this NPRM are not expected to result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. Therefore, this NPRM will not be a “major rule” as defined in 5 U.S.C. 804(2).

L. Unfunded Mandates Reform Act of 1995: The changes set forth in this NPRM do not involve a Federal intergovernmental mandate that will result in the expenditure by State, local, and tribal governments, in the aggregate, of $100 million (as adjusted) or more in any one year, or a Federal private sector mandate that will result in the expenditure by the private sector of $100 million (as adjusted) or more in any one year, and will not significantly or uniquely affect small governments. Therefore, no actions are necessary under the provisions of the Unfunded Mandates Reform Act of 1995. See 2 U.S.C. 1501 et seq.

M. National Environmental Policy Act of 1969: This NPRM will not have any effect on the quality of the environment and is thus categorically excluded from review under the National Environmental Policy Act of 1969. See 42 U.S.C. 4321 et seq.

N. National Technology Transfer and Advancement Act of 1995: The requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) are not applicable because this NPRM does not contain provisions that involve the use of technical standards.

O. Paperwork Reduction Act of 1995: The Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3549) requires that the Office consider the impact of paperwork and other information collection burdens imposed on the public. This NPRM does not involve an information collection requirement that is subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995. In addition, this NPRM does not add any additional information requirements or fees for parties before the Board. Therefore, the Office is not resubmitting collection packages to OMB for its review and approval because the revisions in this NPRM do not materially change the information collections approved under OMB control number 0651-0069.

Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to, a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB control number.

P. E-Government Act Compliance: The USPTO is committed to compliance with the E-Government Act to promote the use of the internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes.

For the reasons set forth in the preamble, the Office proposes to amend 37 CFR part 42 as follows:

Throughout this document, “we,” “us,” and “our” refer to the EPA.

On September 13, 2017, and November 13, 2023, the Arizona Department of Environmental Quality (ADEQ) submitted to the EPA requests from MCAQD to act on a series of rules from the existing SIP, including the rescission of various local rules. Table 1 lists the SIP-approved rules proposed to be rescinded from the SIP by this proposed rule with the dates that they were adopted by the MCAQD and previously approved into the SIP. We are proposing action on the entire November 13, 2023 submittal (“2023 SIP Submittal”) and a portion of the September 13, 2017 submittal (“2017 SIP Submittal”). Portions of other rules from the 2017 SIP Submittal were addressed in other rulemakings (see Table 3 and 87 FR 42324 (September 15, 2022)), and the remaining portions of the 2017 SIP Submittal will be addressed in a future rulemaking. 1

Table 2 lists the submitted rule sections addressed by this proposal with the dates that they were adopted by the MCAQD and submitted by ADEQ on behalf of the MCAQD for inclusion into the SIP.

On December 4, 2023, the EPA determined that the submittal for MCAQD Rule 320, section 306 and section 307 from the 2023 SIP Submittal, met the completeness criteria in 40 CFR part 51 Appendix V. On March 13, 2018, the 2017 SIP Submittal was deemed by operation of law to meet the completeness criteria in 40 CFR part 51 Appendix V. SIP submittals must meet the completeness criteria before formal EPA review.

Since initial SIP approval in the 1970s, Maricopa County has revised many of its rules to comply with the CAA national ambient air quality standards (NAAQS) requirements, and to implement reasonably available control technology (RACT) for various source categories in nonattainment areas. These rules were submitted to the EPA for incorporation into the Arizona SIP at various times. In 2016, the EPA reformatted the Arizona SIP as codified in the Code of Federal Regulations (CFR) into a tabulated “notebook” format. While developing the updated SIP tables for that conversion, the EPA worked closely with the ADEQ and local air agencies to clarify what was in their applicable SIP, including older provisions that had not been updated or replaced to reflect local rulemakings. The result of that coordination was the MCAQD's 2017 SIP submittal that requests to rescind or replace many obsolete rules in the federally enforceable SIP in favor of rules that reflect their current locally enforceable rulebook. The MCAQD also submitted an updated request on November 13, 2023, to replace Rule 32, sections G and J with Rule 320 sections 306 and 307. The 2023 SIP Submittal request supersedes the 2017 SIP Submittal request with respect to Rules 32, sections G and J. What follows is a summary of the rules identified in Table 1 that we are proposing for rescission and/or replacement in this rulemaking.

Rule 22 states that the Control Officer shall deny or revoke an Installation Permit and an Operating Permit if the applicant does not show that every machine, equipment, incinerator, device or other article usage (units; with or without air pollution control equipment) does not eliminate or reduce air pollution. If the Control Officer finds that such units under an Operating Permit are constructed not in accordance with the Installation Permit, the Control Office shall not accept any further application for an Operating Permit for these units. If the units are reconstructed in accordance with the Installation Permit, they may be permitted an Operating Permit. All permits are non-transferable and must be affixed to the unit. Rule 22 was superseded by Rule 200, Rule 210, Rule 220, Rule 240, and Rule 241. 2

Rule 28 supplies the fees and fee schedules for Installation Permits and Annual Operating Permits. Rule 28 was included in the SIP to meet CAA section 110(a)(2)(L) that requires permitting fees under the new source review (NSR) preconstruction permitting program, until it is superseded by the fee requirement under the title V operating permits program (CAA sections 501-507). Since Maricopa County has an EPA approved title V operating permits program that includes a fee rule, permit fees are not required to be in the SIP. 3

The following sections of Rule 32 are the subject of this proposed rule. The remainder of Rule 32 (sections A, B, C, D, E, and F) were removed from the SIP on July 15, 2022 (87 FR 42324). Rule 32, section G states that no person shall discharge sulfur, sulfur dioxide (SO 2 ), or sulfur equivalent, into the atmosphere in excess of 10% of the sulfur entering the process as feed. Rule 32, section G is being rescinded and replaced by analogous requirements in Rule 320, section 206 (submitted on November 13, 2023). Rule 32, section H applies to an installation that operate steam power to produce electric power with a resulting discharge of SO 2 . With a two-hour maximum average, new sources shall not emit more than 0.80 pounds of SO 2 per million Btu, and existing sources shall not emit more than 1.0 pound of SO 2 per million Btu when coal or oil is fired. Existing sources firing on high sulfur oil shall not emit more than 2.2 pounds of SO 2 per million Btu in a two-hour average maximum. Issued permits prohibit the use of high sulfur oil unless the applicant demonstrates to the control office that a) sufficient quantities of low sulfur oil is not available for use, and b) that the SO 2 ambient air quality standards will not be violated. If an exemption is made, then the permittee must submit monthly reports to the bureau. The permit shall be modified when conditions justifying the use of high sulfur oil no longer exist. Rule 32, section H was superseded by Rule 322. 4 Rule 32, section J states that asphalt kettles shall be operated with good modern practices including, but not limited to: (1) maintain temperatures both below the asphalt flash point and the manufacture maximum recommended temperature, (2) except when charging, operate Kettles with a closed lid, (3) pump asphalt from the kettle, (4) draw asphalt through cocks without dipping, (5) fire kettle with clean burning fuel, and 6) maintain a clean, properly adjusted and good operating condition kettle. Rule 32, section J is being rescinded and replaced by analogous requirements in Rule 320, section 307 (submitted on November 13, 2023). Rule 32, section K states that the discharge of carbon monoxide (CO) from any process source shall be effectively controlled by secondary combustion. Rule 32, section K was superseded by Rule 322 and Rule 323. 5

Rule 41, section A requires owners, lessees, or operators to provide, install, maintain, and operate air contaminant monitoring devices that are required to determine compliance acceptable to the Control Officer. Owners, lessees, or operators shall also provide monitoring information in writing to the Control Office, with the devices available for inspection during all reasonable times. Rule 41, section A was superseded by Arizona Revised Statute 36-780. 6 Rule 41, section B requires owners or operators of fossil fuel-fired steam generators, fluid bed catalytic cracking unit catalyst regenerators, sulfuric acid and nitric acid plants to install, calibrate, operate, and maintain all monitoring equipment to continually monitor opacity, NO X , SO 2 , oxygen and CO 2 . The rule provides basic requirements for monitoring equipment and performance specifications as set forth in Title 40 CFR, Part 60, Chapter 1, Appendix B. SIP Rule 41, section B also provides requirements for the calibration of gases, cycling times, monitor location, combined effluents, span, and data reporting and recordkeeping. Sources of catalytic cracking unit catalyst regenerators, sulfuric acid and nitric acid plants that are applicable to Rule 41, section B are not currently located in Maricopa County. However, if a new source is constructed in the County for one of these categories, it will be subject to the New Source Performance Standards promulgated in 40 CFR part 60 and the New Source Review program, and would be exempted from Rule 41, section B. Therefore, Rule 41, section B is unenforceable or superseded by other requirements.

Rule 41, section B is being rescinded without replacement.

Rule 42 requires that an owner or operator test the openings in a system, stack, or the stack extension. If the facilities are not adequate for testing, the Control Office shall supply to the owner or operator, in writing, the necessary testing requirements for these facilities. Rule 42 does not specify emission limits or achieve any emission reductions, nor are any test methods specified in Rule 42. MCAQD rules now contain a section that identifies test methods for the rule and EPA reviews those methods when each rule is approved. Rule 42 is being rescinded without replacement.

Rule 74, section C states that the public shall have daily notifications for the concentrations of total suspended particles, CO, and ozone based on the Pollution Standard Index. Rule 74, section C was superseded by Rule 100. 7

Additionally, Table 3 identifies rules from the 2017 SIP submittal that were requested to be rescinded and/or replaced but have since been superseded by action on other SIP submittals that contained the same rules.

The EPA's technical support document (TSD) has more information about these rules.

Once a rule has been approved as part of a SIP, the rescission of that rule from the SIP constitutes a SIP revision. To approve such a revision, the EPA must determine whether the revision meets relevant CAA criteria for stringency, if any, and complies with restrictions on relaxation of SIP measures under CAA section 110(l), and the General Savings Clause in CAA section 193 for SIP-approved control requirements in effect before November 15, 1990.

Stringency: Generally, rules must be protective of the NAAQS, and must require RACT in nonattainment areas for ozone. Maricopa County is currently designated as nonattainment for ozone and classified as Moderate for the 2008 8-hour NAAQS (see 40 CFR 81.303, 81 FR 26699).

Plan Revisions: States must demonstrate that SIP revisions would not interfere with attainment, reasonable further progress or any other applicable requirement of the CAA under the provisions of CAA section 110(l) and section 193.

Guidance and policy documents that we used to evaluate enforceability, revision/relaxation and rule stringency requirements for the applicable criteria pollutants include the following:

1. “State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” 57 FR 13498 (April 16, 1992); 57 FR 18070 (April 28, 1992).

2. Letter dated February 12, 1990, from Johnnie L. Pearson, Chief Regional Activities Section, ROB, to Chief, Air Branch, Region I-X, Subject: “Review of State Regulation Recodifications.”

We have concluded that the rules in Table 1 are appropriate for rescission, and/or replacement. The rule sections to be rescinded from the SIP without replacement either have already been superseded in the SIP by requirements that are at least as stringent or are requirements that do not address any particular CAA requirements, do not include definitions that are not otherwise defined elsewhere, do not include provisions that are necessary to implement or protect any of the NAAQS and do not fulfill RACT requirements. For the rule sections to be rescinded and replaced, the requirements are being replaced with analogous requirements that are at least as stringent. As such, the removal and/or replacement of the rules covered by this proposed rulemaking would not impact the overall stringency of the Arizona SIP. The reasons for the rule rescissions, and/or replacements, can be summarized into the following categories:

Category 1—Rules that do not establish emission limits or enforce the NAAQS: Rule 42 and Rule 28.

Category 2—Rules that have been superseded and are no longer needed in the SIP: Rule 22, Rule 32 sections G, H, and J, Rule 41, section A, and Rule 74, section C.

Category 3—Unenforceable Rules: Rule 32, section K and Rule 41, section B.

Category 4—Rules that are being rescinded and replaced: Rule 32, sections G and J are being replaced by Rules 320, sections 306 and 307.

In sum, the rules being rescinded and/or replaced address local issues and are no longer needed for the purposes for which SIPs are developed and approved, namely the implementation, maintenance, and enforcement of the NAAQS.

The TSD has more information on our evaluation.

As authorized in section 110(k)(3) of the Act, the EPA proposes to fully approve the requested rescission of the rules listed in Table 1 above, and subsequent replacement of SIP-approved rules, because they fulfill all relevant requirements. We will accept comments from the public on this proposal until May 16, 2024. If we take final action to approve the rescission, and/or replacement, of the submitted rules, our final action will remove the rescinded rules from the federally enforceable SIP, and replace these rules in the federally enforceable SIP as described.

In this rule, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference Maricopa County Air Quality Department, Rule 320, Odors and Gaseous Air Contaminants, sections 306 and 307, revised on July 2, 2003, which regulate emissions of SO 2 from fossil fuel fired steam generators. In addition, the EPA is proposing to rescind Rule 22, Rule 28, Rule 32 sections H and K, Rule 41 sections A and B, Rule 42, and Rule 74 section C from the MCAQD SIP without replacement because the rules either have already been superseded in the SIP by requirements that are at least as stringent or are requirements that do not address any particular CAA requirements, do not include definitions that are not otherwise defined elsewhere, do not include provisions that are necessary to implement or protect any of the NAAQS and do not fulfill RACT requirements. The EPA has made, and will continue to make, these materials available through https://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 Clean Air Act, 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 Clean Air Act. Accordingly, this proposed action merely proposes to approve state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed 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 14094 (88 FR 21879, April 11, 2023);

• 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 subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it proposes to approve a state program;

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

• 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.

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).

Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, Feb. 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. The EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” The EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”

The State did not evaluate environmental justice considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. The EPA did not perform an EJ analysis and did not consider EJ in this action. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goal of Executive Order 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples.

Throughout this document, “we,” “us,” and “our” refer to the EPA.

Ground-level ozone is formed when oxides of nitrogen (NO X ) and volatile organic compounds (VOC) react in the presence of sunlight. 1 These two pollutants, referred to as ozone precursors, are emitted by many types of pollution sources, including on- and off-road motor vehicles and engines, power plants and industrial facilities, and smaller area sources such as lawn and garden equipment and paints.

Health effects associated with exposure to ground-level ozone include: reduced lung function, making it more difficult for people to breathe as deeply and vigorously as normal; irritated airways, causing coughing, sore or scratchy throat, pain when taking a deep breath and shortness of breath; increased frequency of asthma attacks; inflammation of and damage to the lining of the lung; increased susceptibility to respiratory infection; and aggravation of chronic lung diseases such as asthma, emphysema, and bronchitis. Ozone may continue to cause lung damage even when the symptoms have disappeared and breathing ozone may contribute to premature death, especially in people with heart and lung disease. 2

In 1979, under section 109 of the Clean Air Act (CAA), the EPA established primary and secondary NAAQS for ozone at 0.12 parts per million (ppm) averaged over a 1-hour period. 3 On July 18, 1997, the EPA revised the primary and secondary standards for ozone to set the acceptable level of ozone in the ambient air at 0.08 ppm, averaged over an 8-hour period (“1997 8-hour ozone standards”). 4 The EPA set the 1997 8-hour ozone standards based on scientific evidence demonstrating that ozone causes adverse health effects at lower concentrations and over longer periods of time than was understood when the previous 1-hour ozone standards were set. The EPA determined that the 1997 8-hour standards would be more protective of human health, especially for children and adults who are active outdoors, and individuals with a pre-existing respiratory disease, such as asthma. The 8-hour ozone standards were further strengthened in 2008 and 2015. 5 Although the 1979 1-hour ozone standards and the 1997 8-hour ozone standards have subsequently been revoked following the promulgation of more stringent ozone standards, certain requirements that had applied under the revoked standards continue to apply under the anti-backsliding provisions of CAA section 172(e), including an approved attainment plan. 6

Following promulgation of a new or revised NAAQS, the EPA is required by the CAA to designate areas throughout the nation as attaining or not attaining the standards. Effective June 15, 2004, the EPA designated nonattainment areas for the 1997 8-hour ozone standards. 7 The designations and classifications for the 1997 8-hour ozone standards for California areas are codified at 40 CFR 81.305. In a rule governing certain facets of implementation of the 1997 8-hour ozone standards (the “Phase 1 Rule”), the EPA classified the Coachella Valley as “Serious” nonattainment for the 1997 8-hour ozone standards, with an attainment date no later than June 15, 2013. 8 On November 28, 2007, the California Air Resources Board (CARB) requested that the EPA reclassify the Coachella Valley 1997 8-hour ozone nonattainment area from Serious to “Severe-15.” The EPA granted the reclassification, effective June 4, 2010, with an attainment date of not later than June 15, 2019. 9 On June 11, 2019, CARB requested another reclassification for the Coachella Valley, from Severe-15 to “Extreme” nonattainment, which the EPA granted in a final rule published July 10, 2019. 10 This reclassification to Extreme applied only to the portions of the Coachella Valley subject to state jurisdiction. At this time, areas of Indian country within the nonattainment area remain classified as Severe-15 for the 1997 8-hour ozone standards. 11 On January 15, 2020, we published a final rule setting a deadline of February 20, 2021, for the state to submit a SIP revision addressing the Extreme requirements of CAA section 182(e) and the revised title V and new source review rules for the Coachella Valley. 12

The EPA previously approved many elements of the Coachella Valley's Severe attainment plan in a final rule dated June 12, 2017, 13 including the reasonably available control measure (RACM) demonstration as meeting the requirements of CAA section 172(c)(1) and 40 CFR 51.1105(a)(1) and 51.1100(o)(17); the rate of progress (ROP) and reasonable further progress (RFP) demonstrations as meeting the requirements of CAA sections 172(c)(2) and 182(c)(2)(B) and 40 CFR 51.1105(a)(1) and 51.1100(o)(4); the attainment demonstration as meeting the requirements of CAA section 182(c)(2)(A) and 40 CFR 51.1105(a)(1) and 51.1100(o)(12); and the demonstration that the SIP submittal provides for transportation control strategies and measures sufficient to offset any growth in emissions from growth in vehicle miles travelled (VMT) or the number of vehicle trips, and to provide for RFP and attainment, as meeting the requirements of CAA section 182(d)(1)(A) and 40 CFR 51.1105(a)(1) and 51.1100(o)(10). The EPA did not act on the contingency measures submitted with the Severe-15 attainment plan, which were subsequently withdrawn by CARB, and we did not act on the motor vehicle emissions budgets, because the associated transportation conformity demonstration is not required for a revoked NAAQS. The EPA also approved the Enhanced motor vehicle inspection and maintenance (I/M) program for the Coachella Valley in a final rule published on July 1, 2010. 14

The Coachella Valley area is located within Riverside County. 15 The Coachella Valley is under the jurisdiction of the South Coast Air Quality Management District (SCAQMD or “District”), which also oversees air quality in the upwind South Coast Air Basin. The District and CARB are responsible for adopting and submitting plans to attain the 1997 8-hour ozone standards for nonattainment areas in their jurisdiction.

Ground level ozone in the Coachella Valley “is both directly transported from the [South Coast Air Basin] and formed photochemically from precursors emitted upwind and within the Coachella Valley.”  16 The South Coast Air Basin is home to a much larger population than Coachella Valley and, based on inventory data from 2018, emissions of NO X and VOC in the South Coast Air Basin are more than 20 times larger than those of Coachella Valley. 17 Therefore, attainment of the 1997 8-hour ozone standards in Coachella Valley is heavily dependent on upwind reductions in the South Coast Air Basin. The largest sources of precursors are at the coastal and central portions of South Coast Air Basin. The area's prevailing winds transport ozone precursors inland, forming ozone along the way. Maximum ozone concentrations occur “in the inland valleys of the Basin, extending from eastern San Fernando Valley through the San Gabriel Valley into the Riverside-San Bernardino area and the adjacent mountains.”  18 As pollution is further transported through the San Gorgonio Pass into the Coachella Valley, ozone concentrations typically decrease from dilution with cleaner air, but ozone standards are still exceeded.

Air quality in the Coachella Valley has steadily improved in recent years. Design values have declined from 0.108 ppm in 2003 to 0.087 ppm in 2022. 19 Design values are used to designate and classify nonattainment areas, as well as to assess progress towards meeting the air quality standards. 20

States must implement the 1997 8-hour ozone standards under Title 1, Part D of the CAA, which includes section 172, “Nonattainment plan provisions,” and subpart 2, “Additional Provisions for Ozone Nonattainment Areas” (sections 181-185).

To assist states in developing effective plans to address ozone nonattainment, the EPA issued an implementation rule for the 1997 8-hour ozone standards (“1997 Ozone Implementation Rule”). This rule was finalized in two phases. The first phase of the rule addressed classifications for the 1997 8-hour ozone standards; applicable attainment dates for the various classifications; the timing of emissions reductions needed for attainment; and identified applicable requirements, such as clean fuels for boilers. 21 The second phase addressed SIP submittal dates and the requirements for reasonably available control technology (RACT) and RACM, RFP, modeling and attainment demonstrations, contingency measures, and new source review. 22 The rule was codified at 40 CFR part 51, subpart X.

The EPA announced the revocation of the 1997 8-hour ozone standards and the anti-backsliding requirements that apply upon revocation in a rulemaking that established final implementation rules for the 2008 8-hour ozone NAAQS. 23 Under these anti-backsliding requirements, areas that were designated as nonattainment for the 1997 8-hour ozone standards at the time the standards were revoked continue to be subject to certain SIP requirements that had previously applied based on area classifications for the standards. 24 Thus, although the 1997 8-hour ozone standards have been revoked, the Coachella Valley remains subject to many requirements for these standards as applicable to “Extreme” nonattainment areas.

We discuss the CAA and regulatory requirements for 1997 8-hour ozone nonattainment plans in more detail in the following section of this proposed rulemaking.

On December 29, 2020, CARB submitted the “Final Coachella Valley Extreme Area Plan for the 1997 8-Hour Ozone Standard,” dated December 2020 (“Coachella Valley Ozone Plan” or “Plan”), to the EPA as a revision to the California SIP. 25 The Plan addresses many of the Extreme nonattainment area requirements for the Coachella Valley for the 1997 8-hour ozone standards.

The Coachella Valley Ozone Plan includes the District's resolution of approval for the Plan (District Board Resolution 20-22) and the executive order commemorating CARB's adoption of the Plan as a revision to the California SIP (Executive Order S-20-34). 26 The Plan addresses the requirements for emissions inventory; RACM demonstration and adopted control strategy; attainment demonstration; ROP and RFP demonstrations; and clean fuels for boilers.

The Plan is organized into an executive summary, seven sections, and three appendices. Section 1, “Introduction,” identifies the nonattainment area and the nonattainment status for all EPA ozone standards, including the 1997 8-hour ozone standards; provides a history of air quality planning for the 1997 8-hour ozone standards; and explains the purpose of the Plan. Section 2, “Air Quality Trends,” describes the formation of ground-level ozone generally and specific factors that contribute to ozone formation in the Coachella Valley, and provides historic monitoring data and related discussion. Section 3, “Base Year and Future Year Emissions,” describes the methodology used for the area's emissions inventories, citing to the “Final 2016 Air Quality Management Plan” (“2016 AQMP”)  27 where appropriate, and discusses the modeled inventories in detail. Section 4, “Control Strategy,” describes District and CARB rules that will achieve the emissions reductions relied upon in the Plan. Section 5, “Future Air Quality,” describes the modeling approach, including inputs, assumptions, methodology, and weight of evidence analysis (WOE). Section 6, “Other Clean Air Act Requirements” addresses various Extreme area requirements, including for RFP, RACT, RACM, contingency measures, offsetting of increases in VMT, NSR requirements, use of clean fuels or advanced control technology for boilers, and traffic control measures during heavy traffic hours. Sections 7 through 9 address various procedural requirements, including compliance with the California Environmental Quality Act, and notice and comment procedures. The Plan includes three supporting appendices, which describe the emissions inventories and existing District and CARB rules and regulations relied on in the Plan.

On March 18, 2021, 28 CARB submitted the “VMT Offset Demonstration.”  29 The VMT Offset Demonstration is intended to show compliance with the requirement at CAA section 182(d)(1) for nonattainment areas classified Severe or Extreme to adopt sufficient transportation control strategies (TCSs) and transportation control measures (TCMs) to offset any growth in VMT.

The VMT Offset Demonstration contains an Executive Summary, Introduction, Methodology, Staff Recommendations, and appendices. The appendices contain the following sections: “Sensitivity Test to Estimate Emissions for the 2023 Attainment Year with Motor Vehicle Control Program Frozen at 2002;” “EMFAC2014 Analysis;”  30 “EMFAC2011 Analysis;”  31 and “Summary.”

The VMT Offset Demonstration includes a base year emissions estimate and three different estimates for the 2023 attainment year. One estimate has 2023 on-road vehicle emissions controls frozen as the requirements existed in 2002. One estimate shows 2023 emissions freezing the VMT at the levels from 2002. The final estimate reflects expected emissions for 2023 based on the submitted control strategy, which, as described further in Section IV.E of this document, must be less than both previous estimates for 2023 for an adequate VMT offset demonstration.

As the VMT Offset Demonstration explains, several post-2002 emissions control measures are factored into EMFAC2017 (the latest CARB model for on-road emissions at the time the demonstration was prepared) and cannot be removed. To correct this, the VMT Offset Demonstration includes the results of a sensitivity analysis to determine the emissions reductions associated with CARB's Advanced Clean Cars program and the Truck and Bus Regulations (calculated using EMFAC2014), and the additional stringency of CARB's inspection and maintenance programs (calculated using EMFAC2011).

CAA sections 110(a)(1) and (2) and 110(l) require a state to provide reasonable public notice and opportunity for public hearing prior to the adoption and submittal of a SIP or SIP revision. To meet this requirement, every SIP submittal should include evidence that the state provided adequate public notice and an opportunity for a public hearing, consistent with the EPA's implementing regulations in 40 CFR 51.102.

The SCAQMD provided public notice of its intent to approve the Coachella Valley Ozone Plan on November 4, 2020. 32 The public comment period ended with a public hearing on December 4, 2020; no comments were submitted during the public hearing. 33 The SCAQMD responded to written comments in Section 9 of the Plan. The SCAQMD Governing Board documented the adoption of the Plan in Board Resolution 20-22, dated December 4, 2020. In addition to the comment period and hearing, the SCAQMD convened several steering committees and advisory groups beginning in August 2020. 34 As documented in Executive Order S-20-34, CARB determined that the Plan met the requirements of the Act, adopted the Plan, and ordered it to be submitted to the EPA for inclusion in the SIP.

The Plan includes proof of publication for the notice of the District public hearings, as evidence that all hearings were properly noticed. Therefore, we find the Coachella Valley Ozone Plan meets the procedural requirements of CAA sections 110(a) and 110(l).

CARB provided public notice of its intent to approve the VMT Offset Demonstration on January 21, 2021. The public comment period ended with a board meeting on February 25, 2021. One person commented during the public meeting, urging progress in addressing air pollution in the Coachella Valley without directly addressing the VMT Offset Demonstration. The CARB Governing Board documented the adoption of the VMT Offset Demonstration in Board Resolution 21-1, dated February 25, 2021.

CAA section 110(k)(1)(B) requires that the EPA determine whether a SIP submittal is complete within 60 days of receipt. This section of the CAA also provides that any plan that the EPA has not affirmatively determined to be complete or incomplete is deemed complete by operation of law six months after the date of submittal. The SIP submittal for the Coachella Valley Ozone Plan became complete by operation of law on June 28, 2021, and the submittal for the VMT Offset Demonstration became complete by operation of law on September 18, 2021.

CAA section 182(a)(1) requires each state with an ozone nonattainment area classified under subpart 2 to submit a “comprehensive, accurate, current inventory of actual emissions from all sources” of the relevant pollutants in accordance with guidance provided by the Administrator. While this inventory is not a specific requirement under the anti-backsliding provisions at 40 CFR 51.1105 and 51.1100(o), it provides support for demonstrations required under these anti-backsliding rules. Additionally, a baseline emissions inventory is needed for the attainment demonstration and for meeting RFP requirements. The 1997 Ozone Implementation Rule identifies 2002 as the baseline year for RFP purposes. 35 Emissions inventory guidance issued by EPA sets specific planning requirements pertaining to future milestone years for reporting RFP and to attainment demonstration years. 36 Key RFP analysis years in the RFP demonstration include 2008 and every subsequent 3 years until the attainment date.

We have evaluated the emissions inventories in the Coachella Valley Ozone Plan to determine if they are consistent with EPA guidance and adequate to support the Plan's RACM, RFP, ROP, and attainment demonstrations.

Chapter 3 and Appendix I of the Plan contain detailed emissions estimates. The District's process for developing these emissions estimates followed a similar methodology to the inventories in the 2016 AQMP. 37 In general, Appendix III of the 2016 AQMP includes a more detailed discussion of this methodology, and the Plan explains relevant differences between the two emissions estimates.

The Plan's emissions estimates are seasonally adjusted to summer emissions when ozone concentrations are highest. The Plan divides emissions into the four categories of “point,” “area,” “on-road,” and “off-road” sources, with point and area sources grouped as “stationary sources” in summary tables. The base year for the emissions estimates is 2018. As Chapter 3 of the Plan explains, that data was projected to 2020 and 2023. Appendix I also contains full emissions breakdowns projected back to 2002 (the baseline year for the RFP demonstration), and forward to 2020 (a milestone year in the RFP demonstration) and 2023 (the attainment year). Table 1 compares emissions for 2002, 2018, 2020, and 2023.

As described in the Plan, SCAQMD Rule 301 requires stationary sources emitting 4 tons per year (tpy) or more of NO X or VOC to report facility emissions directly to the District.

Sources with NO X and VOC emissions below these thresholds are classified as area sources. The area source category includes aggregated emissions data from processes that are individually small and widespread. CARB and SCAQMD jointly estimate emissions for more than 400 area source categories. Appendix I of the Plan includes aggregate categories, such as consumer products, but not every individual category ( e.g., hairspray). The Plan states that “emissions from these sources are estimated using specific activity information and emission factors. Activity data are usually obtained from survey data or scientific reports, e.g., Energy Information Administration reports for fuel consumption other than natural gas fuel, Southern California Gas Company for natural gas consumption, paint supplier data under SCAQMD Rule 314, `Fees for Architectural Coatings,' and District databases.”  38 Emission factors are values representing the amount of NO X or VOC per amount of fuel, hours of operation, or some other measurement. The Plan's emission factors are based on “rule compliance factors, source tests, manufacturer's product or technical specification data, default factors (mostly from AP-42, the EPA's published emission factor compilation), or weighted emission factors derived from the point source facilities' annual emissions reports.”  39 Area source emissions are based on emissions projections for 2018 and 2023 from the 2016 AQMP, “using growth and control factors derived from regulatory and socio-economic data.”  40

For on-road mobile source emissions, which consists of emissions from trucks, automobiles, buses, and motorcycles, the Plan uses the vehicle activity from the “2016-2040 Regional Transportation Plan/Sustainable Communities Strategy” (“2016-2040 RTP/SCS”) developed by the Southern California Association of Governments (SCAG). The Plan's mobile source emission factors come from CARB's 2017 emissions factor model, known as “EMFAC2017,” which was the latest model available for estimating on-road motor vehicle emissions in California at the time of its submission. 41

The Plan also contains off-road NO X and VOC inventories developed by CARB using category-specific methods and models. 42 The off-road mobile source category includes aircraft, trains, ships, and off-road vehicles and equipment used for construction, farming, commercial, industrial, and recreational activities. The 2016 AQMP provides the growth factors used to project base year emissions for the off-road sources. 43

Future emissions forecasts are primarily based on demographic and economic growth projections provided by SCAG, and control factors developed by the District in reference to the 2018 base year. Growth factors used to project these baseline inventories are derived mainly from data obtained from SCAG. 44

We have reviewed the emissions inventories in the Coachella Valley Ozone Plan and the inventory methodologies used by the District and CARB for consistency with CAA section 182(a)(1) and EPA guidance. We find that the base year and projected attainment year inventories are comprehensive, accurate, and current inventories of actual and projected emissions of NO X and VOC in the Coachella Valley as of the date of the submittal. Accordingly, we propose to find that these inventories provide an appropriate basis for the various other elements of the Coachella Valley Ozone Plan, including the RACM, ROP, RFP, and attainment demonstrations. The technical support document (TSD) accompanying this proposed rulemaking identifies SCAQMD rules submitted to the EPA for SIP approval after submittal of the Coachella Valley Ozone Plan and compares emissions in the Plan with emissions in the previously approved Severe attainment plan. 45

CAA section 172(c)(1) requires that each attainment plan provide for the implementation of all reasonable available control measures as expeditiously as practicable and provide for attainment of the NAAQS. The RACM demonstration requirement is a continuing applicable requirement for the Coachella Valley under the EPA's anti-backsliding rules that apply for revoked standards. 46

The EPA has previously provided guidance interpreting the RACM requirement in the “General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990” (“General Preamble”)  47 and in a memorandum entitled “Guidance on Reasonably Available Control Measures (RACM) Requirements and Attainment Demonstration Submissions for the Ozone NAAQS,” John Seitz, November 30, 1999 (“Seitz Memo”). In summary, EPA guidance provides that to address the requirement to adopt all RACM, states should consider all potentially reasonable control measures for source categories in the nonattainment area to determine whether they are reasonably available for implementation in that area and whether they would, if implemented individually or collectively, advance the area's attainment date by one year or more. 48

Any measures that are necessary to meet these requirements that are not already either federally promulgated, part of the SIP, or otherwise creditable in SIPs must be submitted in enforceable form as part of a state's attainment plan for the area. CAA section 172(c)(6) requires nonattainment plans to include enforceable emissions limitations, and such other control measures, means or techniques (including economic incentives such as fees, marketable permits, and auctions of emission rights), as well as schedules and timetables for compliance, as may be necessary or appropriate to provide for attainment of such standards in such area by the applicable attainment date. 49

The purpose of the RACM analysis is to determine whether or not control measures exist that are economically and technically reasonable and that provide emissions reductions that would advance the attainment date for nonattainment areas. The EPA defines RACM as any potential control measure for application to point, area, on-road, and non-road emission source categories that: (1) is technologically feasible; (2) is economically feasible; (3) does not cause “substantial widespread and long-term adverse impacts;” (4) is not “absurd, unenforceable, or impracticable;” and (5) can advance the attainment date by at least one year. 50

For ozone nonattainment areas classified as Moderate or above, CAA section 182(b)(2) also requires implementation of RACT for all major sources of VOC and for each VOC source category for which the EPA has issued a Control Techniques Guidelines document. CAA section 182(f) requires that RACT under section 182(b)(2) also apply to major stationary sources of NO X . In Extreme areas, a major source is a stationary source that emits or has the potential to emit at least 10 tpy of VOC or NO X . 51 Under the 1997 Ozone Implementation rule, states were required to submit SIP revisions meeting the RACT requirements of CAA sections 182(b)(2) and 182(f) no later than 27 months after designation for the 1997 8-hour ozone standards (September 15, 2006, for areas designated in April 2004) and to implement the required RACT measures no later than 30 months after that submittal deadline. 52 The EPA has approved the Severe area RACT SIP for the SCAQMD for the 1997 ozone standards, which included rules applicable to the Coachella Valley. 53 With the reclassification from Severe to Extreme nonattainment, the major source threshold shifts from 25 tpy to 10 tpy, changing the NO X and VOC sources subject to the RACT requirements. While this action does not address the Coachella Valley's RACT demonstration, we will consider the rules in relevant RACT demonstrations as potentially addressing RACM demonstration requirements.

The RACM demonstration begins on page 6-12 of the Coachella Valley Ozone Plan. The Plan's RACM demonstration builds on the SCAQMD's prior RACM demonstrations for the Coachella Valley and South Coast Air Basin for the 2008 ozone standards in the 2016 AQMP, which the EPA approved in 2020. 54 The Plan supplements this demonstration by evaluating as potential RACM new rules put in place after the 2016 AQMP and rules for area sources. The SCAQMD compared its rules with rules from other air districts within California ( i.e., the Sacramento Metropolitan Air Quality Management District, the San Joaquin Valley Air Pollution Control District, the Ventura County Air Pollution Control District, the Antelope Valley Air Quality Management District, and the Mojave Desert Air Quality Management District) and from air quality agencies in Delaware and Texas.

The evaluation of other districts' and states' rules for stationary and area sources did not identify any rules as potential RACM. In all but a few cases, SCAQMD rules were as stringent or more stringent than other rules. Where other rules were more stringent, the SCAQMD still determined that its rules provided RACM-level controls. For example, the VOC control efficiency of SCAQMD Rule 461, “Organic Liquid Loading,” is less stringent than another rule ( i.e., 90 percent vs. 95 percent), but actual operational control efficiency at SCAQMD facilities exceeded the higher (95 percent) limit. In another example, SCAQMD Rule 1162, “Polyester Resin Operations,” which regulates more than 15 different categories of wood product coatings, has a lower limit than another district for one category, high-solid stains (240 grams per liter vs. 350 grams per liter), but “for almost all categories, Rule 1136 is as stringent as the other agency's rule and provides RACM level of control for this source category.”  55

The Plan also highlights rules and programs revised since the completion of the 2016 AQMP that are anticipated to achieve additional reductions when fully implemented as planned. Table 4-1 of the Plan shows these measures have collectively further reduced emissions by 6.3 tons per day (tpd) of NO X and 2.3 tpd of VOC. 56 These reductions would occur primarily in the South Coast Air Basin; however, as the Plan explains, the ozone air quality problems of the Coachella Valley are primarily caused by transported emissions from within the South Coast Air Basin. The TSD for this proposed rulemaking supplements the District's analysis with a discussion of rules adopted by the SCAQMD since the completion of the Coachella Valley Ozone Plan.

The 2016 AQMP included several commitments for additional emissions reductions, such as for the applications of zero or near-zero NO X emissions appliances in the residential and commercial sectors (CMB-02), additional enhancement in reducing energy use in existing residential buildings (ECC-03), and co-benefits from existing residential and commercial building energy efficiency mandates (ECC-02). Collectively, these measures are expected to achieve 2.6 tpd of NO X reductions by 2023 in the South Coast Air Basin. 57 Consistent with the emissions reductions from new and recently revised rules, the benefits achieved are primarily expected in the South Coast Air Basin.

With respect to on-road mobile sources, we note that SCAG is the designated metropolitan planning organization (MPO) for a large portion of southern California, including Coachella Valley, and SCAG's membership includes local jurisdictions within the Coachella Valley. For the 2016 AQMP, SCAG evaluated a list of possible transportation control measures (TCMs) as one element of the larger RACM evaluation for the plan. TCMs are, in general, measures designed to reduce emissions from on-road motor vehicles through reductions in VMT or traffic congestion.

In our final actions on the Severe area RACM requirements for the Coachella Valley for the 1997 and 2008 8-hour ozone standards, 58 we concluded that the evaluation processes undertaken by SCAG were consistent with the EPA's RACM guidance and found that there were no additional RACM, including no additional TCMs that would advance attainment of the 1997 8-hour ozone standards in the South Coast Air Basin. 59 More recently, we came to the same conclusion with respect to RACM and TCMs for the South Coast in our action on the ozone portion of the SCAQMD's “Final 2012 Air Quality Management Plan.”  60

Although TCMs are implemented in the upwind South Coast Air Basin area to meet CAA requirements, neither the SCAQMD nor CARB rely on implementation of any TCMs in the Coachella Valley to demonstrate implementation of RACM in the Coachella Valley Ozone Plan. The SCAQMD and CARB justify the absence of TCMs in the Coachella Valley by reference to the significant influence of pollutant transport from the South Coast Air Basin on ozone conditions in the Coachella Valley. 61

Docket. The EPA has established a docket for this rulemaking under Docket ID No. EPA-HQ-OAR-2020-0408. 1 All documents in the docket are listed in https://www.regulations.gov. Although listed, some information is not publicly available, e.g., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy. With the exception of such material, publicly available docket materials are available electronically in https://www.regulations.gov.

Judicial review. Section 307(b)(1) of the CAA governs judicial review of final actions by the EPA. This section provides, in part, that petitions for review must be filed in the United States Court of Appeals for the District of Columbia Circuit: (i) when the Agency action consists of “nationally applicable regulations promulgated, or final actions taken, by the Administrator,” or (ii) when such action is locally or regionally applicable, but “such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination.” For locally or regionally applicable final actions, the CAA reserves to the EPA complete discretion to decide whether to invoke the exception in (ii). 2

This final action is “nationally applicable” within the meaning of CAA section 307(b)(1). In this final action, the Administrator is denying a petition to delist the entire Stationary Combustion Turbines source category under CAA section 112(c)(9)(B). This action results in the continued applicability of the National Emission Standards for Hazardous Air Pollutants (NESHAP) for Stationary Combustion Turbines to all turbines meeting the rule's applicability criteria located in any state in the nation. For these reasons, this final action is nationally applicable.

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 District of Columbia Circuit within 60 days from April 16, 2024. Filing a petition for reconsideration of this final action by the Administrator 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 must be filed and shall not postpone the effectiveness of such rule or action.

Under CAA section 307(b)(2) (42 U.S.C. 7607(b)(2)), the requirements established by this final action may not be challenged separately in any civil or criminal proceedings brought by the EPA to enforce the requirements.

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

The EPA has received, has reviewed, and is now denying a petition that requests the removal of a source category from the list of major source categories of HAP, under CAA section 112. In section I.A., we summarize the action we are taking today. In section I.B., we provide information about the NESHAP program set forth in CAA section 112 and the regulatory history and information for the source category at issue. In section II., we discuss the delisting criteria outlined in the CAA and the Agency's process for delisting a source category. Section III. discusses the EPA's residual risk review methodologies and findings in the 2020 Stationary Combustion Turbines NESHAP Risk and Technology Review (2020 RTR) as well as the CAA section 114 information request that the EPA issued subsequent to the 2020 RTR. Section IV. presents the details of the petition to delist and the Agency's technical evaluation of the petition. Finally, in section V., we discuss the EPA's response to the petition.

This action presents the Agency's decision to deny a petition requesting the removal of the Stationary Combustion Turbines source category from the list of categories of major sources of HAP subject to regulation under CAA section 112. The petition was submitted jointly by American Fuel & Petrochemical Manufacturers, the American Petroleum Institute, the American Public Power Association, the Gas Turbine Association, the Interstate Natural Gas Association of America, and the National Rural Electric Cooperative Association (“the petitioners”).

The EPA's decision is governed by CAA section 112(c)(9), which provides the EPA's discretionary authority to delist source categories and specifies the health risk criteria that must be met for a source category to be delisted. These criteria require the EPA to determine that no source in the category emits HAP in quantities which may cause a lifetime risk of cancer greater than 1-in-1 million to the individual in the population who is most exposed to emissions of such pollutants from the source and that HAP emissions from such source category would not result in adverse effects to human health or the environment before delisting a source category.

The EPA is denying the petition based on the EPA's determination that the petition is incomplete and because the petitioners did not present adequate information and analyses for each of the necessary subject areas, under CAA section 112(c)(9)(B). After receipt of the initial petition and the first supplement, the EPA requested that the petitioners provide information and data to support the stationary combustion turbine emission estimates provided by the petitioners; the requested information was not provided. As an additional and separate independent basis for the denial of the petition, the EPA has determined that the petitioners' requested conclusions are not supported by the evidence. The EPA is denying the petition with prejudice and will deny any future petition to delist as a matter of law unless such future petition is accompanied by substantial new information or analysis.

In this section, the EPA provides a brief overview of HAP regulation under CAA section 112, the regulatory history of the Stationary Combustion Turbines source category, information about the source category and its HAP emissions, and information about delisting petitions concerning this source category.

CAA section 112 establishes the framework for regulation of HAP. CAA section 112(c)(1) requires the EPA to publish a list of both categories and subcategories of major and area sources of HAP. A source category on the list is required to meet the specifically defined emission standards that depend on the HAP emitted and whether a source is a major source or an area source. Major sources of HAP are those stationary sources or group of stationary sources under common control ( e.g., facilities) that emit or that have the potential to emit 10 tons per year or more of any specific HAP or 25 tons per year or more of any combination of HAP. An area source is any source of HAP that is not a major source. CAA section 112(c)(2) further requires the EPA to promulgate standards under CAA section 112(d) for all listed source categories according to the schedule specified in CAA section 112(e). CAA section 112(d)(6) requires the EPA to review these standards and revise them as necessary, with consideration of developments in practices, processes, and control technologies, every 8 years (the “technology review”), and CAA section 112(f)(2) requires the EPA to assess the risk to public health remaining after application of the technology-based standards and revise the standards, if necessary, to provide an ample margin of safety to protect public health or to prevent, taking into consideration costs, energy, safety, and other relevant factors, an adverse environmental effect. When the two reviews are combined into a single rulemaking, it is commonly referred to as the “risk and technology review” (RTR).

On July 16, 1992, the EPA published the initial list of source categories, which included the Stationary Turbines source category (57 FR 31576). This source category was subsequently renamed the Stationary Combustion Turbines source category (64 FR 63025; November 18, 1999). CAA section 112(c)(2) further requires the EPA to promulgate standards under CAA section 112(d) for all listed source categories according to the schedule specified in CAA section 112(e). The EPA promulgated the NESHAP for Stationary Combustion Turbines on March 5, 2004 (69 FR 10512). The standards are codified at 40 CFR part 63, subpart YYYY and apply to stationary combustion turbines at major sources of HAP. There are no requirements under 40 CFR part 63, subpart YYYY for stationary combustion turbines located at area sources. The RTR for the Stationary Combustion Turbines NESHAP was proposed on April 12, 2019 (84 FR 15046) and finalized on March 9, 2020 (85 FR 13524). 3

The Stationary Combustion Turbines source category covered by the NESHAP includes approximately 1,015 turbines at 310 facilities. 4 Within the Stationary Combustion Turbines source category are the following eight subcategories: lean premix gas-fired turbines, lean premix oil-fired turbines, diffusion flame gas-fired turbines, diffusion flame oil-fired turbines, turbines which burn landfill or digester gas or gasified municipal solid waste, turbines of less than 1 megawatt (MW) rated peak power output, emergency turbines, and turbines operated on the North Slope of Alaska. Stationary combustion turbines are typically located at power plants, compressor stations, landfills, and industrial facilities such as chemical plants. These turbines are generally operated using natural gas, distillate oil, landfill gas, jet fuel, or process gas.

Emissions of HAP in the exhaust gases of turbines are the result of combustion of the gaseous and liquid fuels. The HAP present in these exhaust gases include formaldehyde, toluene, benzene, acetaldehyde, and metallic HAP ( e.g., cadmium, chromium, manganese, lead, and nickel). Of these HAP, benzene, nickel subsulfide, and hexavalent chromium are classified as known human carcinogens, and formaldehyde, acetaldehyde, lead, nickel carbonyl, and cadmium are classified as probable human carcinogens. Exposure to the various HAP emitted by stationary combustion turbines is associated with a variety of adverse health effects. These adverse health effects include chronic (long-term) health disorders ( e.g., effects on the central nervous system, damage to the kidneys, and irritation of the lung, skin, and mucus membranes); and acute health disorders ( e.g., effects on the kidney and central nervous system, alimentary effects such as nausea and vomiting, and lung irritation and congestion).

Mercury has been measured in the exhaust gas from landfill gas-fired turbines. Gaseous mercury emitted into the air eventually can be deposited into soil and water bodies, where microorganisms can convert it into methylmercury, a highly toxic form of mercury that bio-accumulates in fish tissue and in other aquatic creatures. People are primarily exposed to mercury by consuming contaminated fish. Methylmercury exposure is a particular concern for people of childbearing age, developing fetuses, and young children, because studies have linked exposure to high levels of methylmercury to damage to the developing nervous system. Children exposed to methylmercury while they are in the womb can have negative impacts to their cognitive thinking, memory, attention, language, fine motor skills, and visual spatial skills. Animals can absorb mercury through water, air, and soil or from eating certain plants. Mercury can harm an animal's ability to reproduce and to care for their young.

During the 2004 Stationary Combustion Turbines NESHAP rulemaking, the EPA received a petition from the Gas Turbine Association to delist two subcategories of stationary combustion turbines under CAA section 112(c)(9). 5 The petitioners requested the EPA to create and delist two subcategories—lean premix turbines firing natural gas with limited oil backup and a low-risk subcategory where facilities would make site-specific demonstrations regarding risk levels. On April 7, 2004, the EPA proposed to delist the following four subcategories: lean premix gas-fired turbines, diffusion flame gas-fired turbines, emergency turbines, and turbines located on the North Slope of Alaska (69 FR 18327). At the same time, the EPA proposed to stay the effectiveness of the NESHAP for new lean premix gas-fired and diffusion flame gas-fired turbines (69 FR 18338). On August 18, 2004, the EPA finalized the administrative stay of the effectiveness of the NESHAP for new lean premix gas-fired and diffusion flame gas-fired turbines, pending the outcome of the proposed subcategory delisting (69 FR 51184). The proposal to delist the four subcategories was never finalized in light of the 2007 decision in Natural Resources Defense Council v. EPA, 489 F.3d 1364 (D.C. Cir. 2007), which addressed limits on the EPA's ability to delist subcategories. This court decision is discussed in more detail in section II.A.

On August 28, 2019, the EPA received the petition being acted on here, which seeks to remove the Stationary Combustion Turbines source category from the list of categories of major sources under CAA section 112. The petitioners submitted a supplement to the source category delisting petition on November 21, 2019; a second supplement to the source category delisting petition on December 2, 2020; and a revised version of the second supplement to the delisting petition on March 15, 2021. The EPA has fully considered all the petitioners' submissions in this final decision to deny the petition. Delisting of the Stationary Combustion Turbines source category from the list of major sources would result in removal of the regulatory requirements specified in the NESHAP for Stationary Combustion Turbines in 40 CFR 63.6080-6175 of 40 CFR part 63, subpart YYYY.

In this section, the EPA sets out the specific criteria under the CAA that apply for removing a source category from the list of source categories. CAA section 112(c)(9)(B) specifies certain criteria that must be satisfied in order for the EPA to grant a petition to remove a source category from the list of source categories regulated for HAP emissions. The EPA's consideration of petitions to delist is bound by these criteria and informed by prior court decisions interpreting this provision of the CAA.

A source category delisting petition is a formal request to the EPA from an individual or group to remove a specific source category from the CAA section 112 list of categories of major sources and area sources under CAA section 112(c)(9)(B). The Administrator must grant or deny such a petition to delete a source category within 1 year after a petition is filed and is determined to be complete. 6 See CAA section 112(c)(9)(B). Delisting of a source category would result in the removal of applicable regulatory requirements under CAA section 112 for such source category. CAA section 112(c)(9)(B) contains the discretionary authority to delist a source category and provides in relevant part: “The Administrator may delete any source category from the list under this subsection, on petition of any person or on the Administrator's own motion, whenever the Administrator makes the following determination or determinations, as applicable: [. . .].”

CAA section 112(c)(9)(B) further specifies three criteria for deletion of a source category from the list. The first criterion is specific to carcinogenic HAP and is specified in CAA section 112(c)(9)(B)(i). The criterion states that, in the case of HAP emitted by sources in the category that may result in cancer in humans, a determination must be made that “no source in the category (or group of sources in the case of area sources) emits such hazardous air pollutants in quantities which may cause a lifetime risk of cancer greater than one in one million to the individual in the population who is most exposed to emissions of such pollutants from the source (or group of sources in the case of area sources).”

The second criterion is specific to non-carcinogenic HAP and the third criterion is specific to environmental effects. These criteria are specified in CAA section 112(c)(9)(B)(ii). In the case of HAP that may result in adverse health effects in humans other than cancer or adverse environmental effects, the second criterion states that a determination must be made that “emissions from no source in the category or subcategory concerned (or group of sources in the case of area sources) exceed a level which is adequate to protect public health with an ample margin of safety” and the third criterion states that a determination must be made that “no adverse environmental effect will result from emissions from any source (or from a group of sources in the case of area sources).”

Further, to assist the EPA in making judgments about whether a pollutant causes adverse environmental effects, CAA section 112(a)(7) defines an “adverse environmental effect” as “[A]ny significant and widespread adverse effect, which may reasonably be anticipated, to wildlife, aquatic life, or other natural resources, including adverse impacts on populations of endangered or threatened species or significant degradation of environmental quality over broad areas.”

For source categories that emit carcinogenic HAP, CAA section 112(c)(9)(B)(i) sets a lifetime cancer risk threshold for delisting of 1-in-1 million. This level differs from the acceptable risk determination used in other rulemakings under CAA section 112. For instance, for standards promulgated under CAA section 112(f)(2), an excess lifetime cancer risk to the most exposed individual of 100-in-1 million is ordinarily the upper bound of acceptability. This level was established in the Benzene NESHAP (54 FR 38044; September 14, 1989) and was incorporated into the 1990 CAA Amendments in CAA section 112(f)(2)(B). 7

When considering delisting decisions under CAA section 112(c)(9)(B), the EPA construes this provision as calling for a high level of confidence before a determination can be made that the criteria for delisting are satisfied. For example, for purposes of deleting the non-mercury cell chlorine production subcategory under CAA section 112(c)(9)(B)(ii), the EPA “obtained chlorine and HCl emission estimates from every known major source facility in the non-mercury cell chlorine production subcategory using our authority under section 114 of the CAA and conducted risk assessments for each facility.”  8

For source categories that emit HAP that may result in adverse health effects (non-cancer risks), CAA section 112(c)(9)(B)(ii) requires HAP emissions to be below a level providing an ample margin of safety. In the context of a source category delisting and CAA section 112(c)(9)(B)(ii), the EPA interprets an “ample margin of safety” as such that the chronic and acute concentrations that a person may be exposed to should be less than the concentrations that may elicit an adverse non-cancer health effect ( i.e., each of the ratios should be less than one). This interpretation has been applied in a prior subcategory delisting action under CAA section 112(c)(9)(B)(ii) for the non-mercury cell chlorine production subcategory (68 FR 70947).

For the purposes of determining whether the delisting criteria under CAA section 112(c)(9)(B) are satisfied, risk evaluations must be based on emission estimates that assume the controls required under CAA section 112 are not in place unless they are also known to be required under a different regulatory authority. This is because a final notice granting a delisting petition of, for example, the Stationary Combustion Turbines source category from the list of major sources would result in removal of the regulatory requirements specified in the NESHAP for stationary combustion turbines.

The EPA views CAA section 112(c)(9)(B) as providing discretionary authority for delisting source categories that satisfy the criteria contained therein. “The Administrator may delete any source category from the list under this subsection, on petition of any person . . . , whenever the Administrator makes the following determination or determinations, as applicable,” (CAA section 112(c)(9)(B) (Emphasis added)). The Agency reads this provision as allowing for delisting of a source category upon the Administrator determining that the statutory criteria are satisfied. However, it does not foreclose the exercise of the Administrator's discretion in forming a final decision on whether to delist. (“The Administrator may delete . . .” and not “The Administrator [ must ] delete . . .” (Emphasis supplied). The EPA interprets “may” in CAA section 112(c)(9)(B)(i) as being directional towards a determination that is based on reasonably health protective assumptions to account for uncertainties in any supporting analysis. The final decision involves the consideration and balancing of factors that are uniquely within the Administrator's expertise, including policy choices, and predictions on “the frontiers of scientific knowledge.” Nat'l Lime Ass'n v. EPA, 627 F.2d 416, 454 (D.C. Cir. 1980). 9

Questions as to whether pollutant emissions from a source category present adverse health and environmental effects and questions regarding the kinds of effects that can come from exposure to those emissions may, in certain instances, border on the frontiers of scientific knowledge and are given to be quite uncertain due to either insufficient or inconsistent data. 10 For example, there could be limited scientific knowledge of the effects of pollutant exposure on human health and the environment. There could also be limited emissions data from the source category. Further, some pollutants have no known safe level of exposure. 11 The Administrator is not required to base his determination solely on a single parameter or measure and has the discretion to weigh various factors or data differently. The Administrator's decision to delist (or to deny a petition to delist) a source category is made on a case-by-case basis and involve a thorough and comprehensive review of factual issues, scientific evidence, and data provided in support of a delisting petition.

The EPA also views CAA section 112(c)(9)(B) as allowing the Administrator to balance the likelihood of adverse health effects against limited scientific data and to err on the side of caution in making decisions considering uncertainties in scientific data. Any projections, assessments, and estimations must be reasonable and not based on conjecture. While use of the term “adequate”' further indicates that the Administrator must weigh the potential uncertainties and their likely significance, uncertainties concerning the risks of adverse health or environmental effects may be mitigated if the Administrator can determine that projected exposures are sufficiently low to provide reasonable assurance that adverse health effects will not occur. Similarly, uncertainties concerning the magnitude of projected exposures may be mitigated if the Administrator can determine that the levels which might cause adverse health or environmental effects are sufficiently high to provide reasonable assurance that exposures will not reach harmful levels. But as a part of the requisite demonstration called for by CAA section 112(c)((9)(B), a petitioner must present data that are adequate to support a delisting decision, and thus, resolve any uncertainties associated with missing information.

The Administrator will not remove a source category from the list of source categories covered under CAA section 112 merely because of the inability to conclude that HAP emissions from sources within that source category will cause adverse effects on human health or the environment. Thus, the EPA will not grant a petition to remove a source category if there are uncertainties relating to health effects or if the Administrator does not have sufficient information to make the requisite determination under CAA section 112(c)(9)(B). 12 We note that the Administrator's discretion is neither unbounded nor limitless, but rather constrained by the EPA's duty to protect human health and welfare. 13 This is because the CAA is a protective or preventive statute  14 considering that one of its stated purposes under CAA section 101(b)(1) is “to protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare.” Such statutes do not call for certitude of harm but rather accord a decision maker discretion and flexibility in taking regulatory action that is protective of both public health and the environment.

Further, when considering delisting petitions under CAA section 112(c)(9)(B), the EPA is guided by relevant decisions of the United States Court of Appeals for the District of Columbia (D.C. Circuit or court). Specifically, in 2007, the court held in Natural Resources Defense Council v. EPA, 489 F.3d 1364, 1373 (D.C. Cir. 2007) (vacating portions of the Plywood Maximum Achievable Control Technology (MACT) standards), that the EPA had no authority to create and delist a “low-risk subcategory” under CAA section 112(c)(9)(B)(i). 15 According to the court, only subcategories with no carcinogenic HAP emissions and satisfying CAA section 112(c)(9)(B)(ii) could be removed from the CAA section 112(c)(1) list of categories and subcategories ( e.g., deletion of the non-mercury cell chlorine production subcategory (68 FR 70947; December 19, 2003)). Otherwise, subcategories with any carcinogenic HAP emissions could only be removed as part of a complete removal of the entire source category under CAA section 112(c)(9)(B)(i), noting that the criteria in CAA section 112(c)(9)(B)(ii) would also need to be satisfied if applicable.

Further, in another key case, New Jersey v. EPA, 517 F.3d 574, 582 (D.C. Cir. 2008), the court vacated the EPA's action that delisted coal- and oil-fired electric utility steam generating units (EGUs) holding that “because section 112(c)(9) governs the removal of ` any source category' from the section 112(c)(1) list, and nothing in the CAA exempts EGUs from section 112(c)(9), the only way the EPA could remove EGUs from the section 112(c)(1) list was by satisfying section 112(c)(9)'s requirements.” (Emphasis in original). Since then, the court has upheld our reading of CAA section 112(c)(9) as calling for application of criteria contained therein. 16 For instance, in White Stallion Energy Ctr., LLC v. EPA, 748 F.3d 1222 (D.C. Cir. 2013) the court upheld the EPA's denial of a petition to delist coal-fired EGUs finding that the EPA was correct in rejecting a delisting petition because it “did not demonstrate that EPA could make either of the two predicate findings required for delisting under section 112(c)(9)(B).” Id., at 1248. Additionally, in American Forest and Paper Ass'n v. EPA, 294 F.3d at 119 (construing section 112(b) and upholding the EPA's denial of the petition to delist methanol as a HAP), the court held that “[t]he statutory language unambiguously places on a delisting petitioner the burden to make a showing that there is adequate data about a substance to determine exposure to it may not reasonably be anticipated to cause adverse effects.”

Finally, an additional relevant decision addresses setting MACT standards for listed source categories under CAA section 112. In Louisiana Environmental Action Network v. EPA, 955 F.3d 1088 (D.C. Cir. 2020) ( LEAN ), the court held that when the “EPA reviews an existing standard that fails to address many of the listed air toxics the source category emits, adding limits for those overlooked toxics is a `necessary' revision under section 112(d)(6).” Id., at 1091. The EPA must now set MACT standards in the context of a CAA section 112(d)(6) review where there are gaps in existing MACT standards.

In this section, the EPA describes the Agency's process for consideration of petitions to delist source categories under CAA section 112(c)(9)(B).

Although the delisting action for a listed source category is not subject to the formal rulemaking procedures under CAA section 307(d), it is the EPA's practice to publish and solicit public comments on relevant aspects of the Agency's consideration of such a complete petition in the Federal Register . See American Forest and Paper Ass'n v. EPA, 294 F.3d 113, 117 n.3 (D.C. Cir. 2002) (“Section 112(b) does not contemplate a formal rulemaking and is not among the sections enumerated in section 307(d)(1) (although other subsections of section 112 are included there).”).

The EPA's petition review process proceeds in two phases: a completeness determination and a technical review. 17 During the completeness determination, we conduct a broad review of the petition to determine whether all the necessary subject areas are addressed and whether reasonable information and analyses are presented for each of these subject areas. 18 Once the petition is determined to be complete, we place a notice of receipt of a complete petition in the Federal Register . 19 That Federal Register document announces a public comment period on the petition and starts the technical review phase of our decision-making process. The technical review involves a thorough scientific review of the petition to determine whether the data, analyses, interpretations, and conclusions in the petition are appropriately supported and technically sound. The technical review will also determine whether the petition satisfies the necessary requirements of CAA section 112(c)(9)(B) and adequately supports a decision to delist the source category. All comments and data submitted during the public comment period are considered during the technical review. The decision to either grant or deny a petition is made after a comprehensive technical review of both the petition and the information received from the public to determine whether the petition satisfies the requirements of CAA section 112(c)(9)(B). Here, the review process is not proceeding to the second phase due to the EPA's determination that the petition is incomplete because the petitioners did not address all the necessary subject areas under CAA section 112(c)(9)(B) and did not present reasonable information and analyses for each these subject areas.

If the Administrator decides to grant a petition, the Agency publishes a written explanation of the Administrator's decision, along with a proposed rule to delete the source category. The proposed rule is open to public comment and public hearing and all additional substantive information received is considered prior to the issuance of a final rule. 20 If the Administrator decides to deny the petition, the Agency publishes a notice of its denial, along with a written explanation of the basis for denial. 21 A decision to deny a petition is a final Agency action subject to review in the Circuit Court of Appeals for the District of Columbia under CAA section 307(b).

A denial of a petition may take one of two forms. The EPA may deny the petition with prejudice, in which case any future petition will be denied as a matter of law unless it is accompanied by substantial new evidence; or the EPA may deny the petition without prejudice, in which case the EPA will consider future petitions without the presentation of substantial new evidence. The EPA will issue a denial with prejudice when there are adequate data available that lead the EPA to conclude that emissions from a source category may cause a lifetime risk of cancer greater than 1-in-1 million to the individual in the population who is most exposed to emissions of pollutants from a source category; or where there are adequate data available that lead the EPA to conclude that emissions from a pollutant can be anticipated to result in adverse effects to human health or the environment. Additionally, the EPA will issue a denial with prejudice when the EPA concludes that the available evidence cannot support a determination that emissions from a source category may not cause a lifetime risk of cancer greater than 1-in-1 million to the individual in the population who is most exposed to emissions of such pollutants; or when the EPA concludes that the available evidence cannot support a determination that emissions from the source category may not reasonably be anticipated to result in adverse effects to human health or the environment and, therefore, that substantial new information or analyses would be necessary to allow the Agency to make the requisite determination under CAA section 112(c)(9)(B). 22

In this section, the Agency presents the risk assessment and risk assessment methodology that are the underpinnings of the findings for the 2020 RTR for the Stationary Combustion Turbines source category under CAA section 112(f)(2). It bears note that under CAA section 112(f)(2) the excess lifetime cancer risk to the most exposed individual of 100-in-1 million is ordinarily the upper bound of acceptability, in contrast to CAA section 112(c)(9)(B)(i) which sets out a risk threshold of 1-in-1 million for delisting source categories that emit carcinogenic HAP. On April 12, 2019, the EPA proposed the RTR for the Stationary Combustion Turbines NESHAP (84 FR 15046). The EPA finalized the RTR on March 9, 2020, and based on the risk assessment performed for this source category readopted the existing standards under CAA section 112(f)(2) (85 FR 13524). 23 Additional emissions data collection efforts by the EPA after the 2020 RTR are also discussed in this section.

The EPA's risk assessment methodology for the 2020 RTR is described in detail in the Residual Risk Assessment for the Stationary Combustion Turbines Source Category in Support of the 2020 Risk and Technology Review Final Rule, Docket ID No. EPA-HQ-OAR-2017-0688-0131 (“Risk Report”). The risk assessment estimated the maximum individual lifetime cancer risk, population at increased cancer risk, total estimated cancer incidence, maximum chronic non-cancer hazard index, and maximum acute non-cancer risk hazard quotient. The EPA performed a three-tier screening assessment of the potential multipathway health risks, as well as a three-tier screening assessment of the potential adverse environmental risks. The risk modeling dataset includes emissions data for three emissions scenarios: actual emissions, allowable emissions, and acute emissions.

Pursuant to CAA section 112(f)(2), the EPA conducted a residual risk review for the Stationary Combustion Turbines source category. Risk modeling was conducted for all the facilities known by the EPA at the time to be subject to the Stationary Combustion Turbines NESHAP, which totaled 253 stationary combustion turbine facilities. Additional information obtained after risk modeling refined our estimate of facilities in the source category to 244. The total emissions of HAP from modeled facilities were approximately 5,300 tons per year. The HAP emitted in the largest quantities were formaldehyde, n-hexane, acetaldehyde, toluene, xylenes (mixed), hydrochloric acid, propylene oxide, ethyl benzene, benzene, and acrolein. Emissions of these pollutants made up over 99 percent of the total HAP emissions by mass. Emissions of persistent and bioaccumulative HAP (PB-HAP) included lead compounds, arsenic compounds, cadmium compounds and mercury compounds. Emissions of environmental HAP included the above PB-HAP plus hydrochloric acid.

The results of the chronic inhalation cancer risk assessment based on actual emissions indicated that the estimated maximum individual lifetime cancer risk was 3-in-1 million, with formaldehyde, acetaldehyde, propylene oxide and arsenic compounds from combustion turbines as the major contributors to the risk. The total estimated cancer incidence was 0.04 excess cancer cases per year, or one excess case in every 25 years. Approximately 153,000,000 people live within 50 kilometers of the 253 modeled facilities, and 42,000 people were estimated to have cancer risks at or above 1-in-1 million. The 2020 RTR, where the Agency was acting under CAA section 112(f)(2), showed that the Stationary Combustion Turbines source category did not meet the statutory criteria for delisting described in section II.A. of this preamble. More information concerning the risk analysis can be found in the Risk Report.

In May 2020, the EPA received a petition for reconsideration of the 2020 RTR. One of the issues listed in the petition for reconsideration was the EPA's failure to set limits for unregulated HAP in the Stationary Combustion Turbines NESHAP, citing LEAN. The EPA granted the petition for reconsideration on August 13, 2020. In April 2022, the EPA, acting under authority of CAA section 114, requested operating information and emissions data from six companies that own and operate turbines subject to the Stationary Combustion Turbines NESHAP. A request was sent to a seventh company in September 2022. The requests were sent for the purpose of obtaining emissions data to be used in an upcoming separate rulemaking to establish emission standards for turbines subject to the Stationary Combustion Turbines NESHAP that do not currently have standards in the rule. Requests for operating information included annual hours of turbine operation and annual turbine heat input for 2016-2020. Responses were required within 3 months of receipt of the request. The request mandated testing of selected turbines for emissions of formaldehyde, acid gases (hydrogen fluoride and hydrogen chloride), metallic HAP, particulate matter (PM), and carbon monoxide. The 22 turbines that were tested ranged in size from 1 to 269 MW and included both simple cycle and combined cycle units. The turbines were operated on natural gas, distillate oil, or landfill gas. Some turbines were equipped with an oxidation catalyst. Submittal of the required data from emissions testing was required within 9 months of receipt of the request. The responses to the requests are included in the docket for this action, Docket ID No. EPA-HQ-OAR-2020-0408.

In this section, the EPA presents the details of the petition to delist and of the Agency's technical evaluation of the petition. In section IV.A., the EPA presents the details of the petition to delist; and, in section IV.B., the EPA presents the petitioners' risk assessment methodology. In section IV.C., the EPA discusses deficiencies in the petitioners' estimates of HAP emissions for the Stationary Combustion Turbines source category; and, in section IV.D., the EPA presents the gaps in the petitioners' data that include missing emissions data from a large number of affected sources and uncertainty in the HAP emission estimates for the Stationary Combustion Turbines source category.

In general, the EPA found that the petitioners did not present reasonable and complete information and analyses for each of the affected sources, such as HAP emission measurements from stack testing or fuel content analyses for all sources subject to the Stationary Combustion Turbines source category. In the absence of such requisite information, the EPA did not make a completeness determination for the petition. And, in conducting the technical review of the information provided, the EPA cannot make the substantive determination contemplated under CAA section 112(c)(9)(B).

As stated previously, on August 28, 2019, the EPA received a joint petition from the American Fuel & Petrochemical Manufacturers, the American Petroleum Institute, the American Public Power Association, the Gas Turbine Association, the Interstate Natural Gas Association of America, and the National Rural Electric Cooperative Association to remove the Stationary Combustion Turbines source category from the list of categories of major sources regulated under CAA section 112. That petition claimed that the HAP emissions from affected sources in the Stationary Combustion Turbines source category that were identified in the proposed RTR meet the criteria for delisting. The petitioners submitted the first supplement to the petition on November 21, 2019. That supplement included risk analyses for additional units that were identified in a comment to the proposed RTR for the Stationary Combustion Turbines NESHAP. The petitioners claimed that all three statutory criteria for delisting were satisfied based on the results of this risk assessment.

After receipt of the first supplement to the petition, a second set of additional turbines that were not evaluated in either the petition or first supplement to the petition were identified by the EPA as being subject to the rule. The EPA therefore requested that the petitioners provide analyses for the second set of additional units. The EPA also asked for further explanation on the following issues: (1) whether the petitioners' analyses were based on emission factors without corroboration by emissions data and whether it accounted for operation of units at partial loads; (2) whether arsenic emission factors used in the petition analyses would be adequately justified for oil-fired turbines; and (3) whether the acute multiplier used in estimating acute risk at two facilities was adequately justified. The petitioners submitted a second supplement to the petition on December 2, 2020, in response to the EPA's concerns regarding the completeness of the petition. Finally, the petitioners submitted a revised version of the second supplement on March 15, 2021, correcting an error in the estimated hexavalent chromium emissions at one source. The petition and all the supplements to the petition are available for review in the docket, Docket ID No. EPA-HQ-OAR-2020-0408. The EPA has fully considered all the petitioners' submissions in this decision to deny the petition.

In general, the petitioners' initial petition and subsequent supplements to the petition provided both revised HAP emission estimates and a revised evaluation of the 2020 RTR risk analysis. 24 The petitioners revised HAP emission estimates and revised risk evaluation, however, were primarily based on emission factors and historical fuel usage data for a subset of the turbines that are subject to CAA section 112.

The initial petition and supplements provided by the petitioners contained the following information:

• Revised emission estimates for formaldehyde, which is one of the organic HAP that is a contributor to risk for stationary combustion turbines firing natural gas or distillate fuel oil;

• Revised emission estimates for arsenic, which is one of the metallic HAP that is a contributor to risk for stationary combustion turbines;

• Revised emission estimates for other HAP (organic and metallic) based on fuel use, emission factors, and permit limits for volatile organic compounds (VOCs);

• Measurements of the arsenic content in distillate fuel oil at certain facilities;

• Revised acute emission estimates for certain facilities;

• Other revisions including adjustments to stack parameters and locations, and removal of sources that were no longer operating;

• Analyses of the inhalation acute and chronic (cancer and non-cancer) risks for each source in the category, based on the revised HAP emission estimates;

• Analyses of the multipathway chronic (cancer and non-cancer) risks for each source in the category, based on the revised HAP emission estimates;

• Analyses of the environmental effects, based on the revised and updated emission estimates; and

• New emission estimates and analyses for the facilities not previously reviewed in the 2020 RTR risk analysis.

The petitioners argued that delisting of the source category was warranted based on the following results from their analyses:

• A maximum lifetime inhalation cancer risk for the most exposed individual of 0.76-in-1 million;

• A maximum acute inhalation hazard quotient ( i.e., the ratio of acute exposure concentration to the concentration at which no acute adverse health effect is observed) of 0.52;

• A maximum chronic (non-cancer) inhalation hazard index ( i.e., the ratio of chronic exposure concentration to the concentration at which no chronic adverse health effect is observed) of 0.03;

• A maximum multipathway cancer risk for the most exposed individual of 0.007-in-1 million; and

• A maximum multipathway chronic hazard index of 0.12.

• All facilities were below environmental screening thresholds.

As previously referenced, the petitioners' initial petition and subsequent supplements to the petition provided both revised HAP emission estimates and a revised evaluation of the 2020 RTR risk analysis. The petitioners also included risk analyses that covered additional units that were identified by the EPA as subject to the Stationary Combustion Turbines NESHAP after submittal of the initial petition. The petitioners' risk assessments, however, did not address whether the emission controls that reduce HAP emissions, such as oxidation catalysts, that are installed on some turbines were installed due to the requirements of the Stationary Combustion Turbines NESHAP or for other regulatory requirements. 25 The petitioners' risk assessments also did not address the effect of delisting the Stationary Combustion Turbines source category on the emission estimates used for their analysis. This is requisite information because deleting a source category from the list of major sources would result in removal of the regulatory requirements specified in the applicable NESHAP.

In some instances, the petitioners performed additional analyses that they claimed made their results more conservative. For inhalation risks, the petitioners conducted an additional analysis that accounted for the effects of building downwash, 26 which they indicated has the potential to increase risk. The petitioners also evaluated the non-cancer risks by summing the hazard quotients among all HAP regardless of the target organ. For multipathway health risks, the petitioners further performed a site-specific multipathway risk assessment for one facility with five stationary combustion turbines. According to the petitioners' multipathway risk assessment, four of those units exclusively fire natural gas while one fires refinery fuel gas. This facility was evaluated in the initial petition risk analysis and was re-evaluated in the first supplement to the petition. All other facilities showed low multipathway risks in a more general analysis by the petitioners and so they did not perform site-specific multipathway risk assessments.

In general, the risk assessment methodology used in the petitioners' analyses estimated the same risk parameters as those used by the EPA in the risk assessment for the 2020 RTR, including maximum individual lifetime cancer risk, population at increased cancer risk, total estimated cancer incidence, maximum chronic non-cancer hazard index, maximum acute non-cancer risk hazard quotient, multipathway health risks, and adverse environmental risks. However, while the petitioners' risk modeling methodology was similar to the EPA's, there are deficiencies in the petitioners' estimates of the emissions from the source category which were used to determine the values of the petitioners' risk modeling results, as discussed further in sections IV.C. and IV.D.

The following section discusses deficiencies in the petitioners' analyses that support the EPA's conclusions that the petition is incomplete and that there are inadequate data to determine that no source in the category emits HAP in quantities which may cause a lifetime risk of cancer greater than 1-in-1 million to the individual in the population who is most exposed to emissions of such pollutants from the source.

The EPA identified several deficiencies in the submitted petition. First, the petitioners relied on emission factors and fuel sampling which are not adequate for determining site-specific emissions with the necessary certainty; and the petitioners failed to provide any site-specific emissions testing data. Notably, the Agency afforded petitioners the opportunity to provide additional information and data, which petitioners declined. Second, the petitioners significantly underestimated the formaldehyde emissions from some turbines, as demonstrated by site-specific turbine formaldehyde emissions testing data collected by the EPA. Third, to assess the potential health impacts from short-term exposures, the petitioners used a multiplier for acute risks that is far lower than the standard multiplier the EPA applied in the 2020 RTR, which was supported by measured emissions data, and the petitioners did not explain why their multiplier is more appropriate than the EPA's own multipliers. And fourth, the petitioners failed to explain whether the emission estimates they used would continue to be applicable if the source category were delisted.

As stated previously, a source category may be delisted only if the EPA has a high level of confidence that emissions from no source in the category or subcategory exceed a level which is adequate to protect public health with an ample margin of safety. The emission estimates used by the petitioners to assess the risks from the source category relied almost entirely on emission factors. The EPA has long viewed emission factors as not supplying sufficient certainty regarding site-specific emissions that would provide confidence that no source in the category exceeds the criteria for delisting. While emission factors are a widely used tool for estimating emissions, the EPA as well as state and local air pollution control agencies usually prefer data from source-specific emission tests or continuous emission monitoring systems (CEMS) for estimating a source's emissions because those data provide the best representation of the source's emissions. The EPA notes that the introduction to AP-42: Compilation of Air Emission Factors from Stationary Sources states that “[b]ecause emission factors essentially represent an average of a range of emission rates, approximately half of the subject sources will have emission rates greater than the emission factor and the other half will have emission rates less than the emission factor.”  27 In the same document, the EPA also noted that “[a]verage emissions differ significantly from source to source and, therefore, emission factors frequently may not provide adequate estimates of the average emissions for a specific source.” Further, for example, the North Carolina Department of Environmental Quality states the following regarding estimating emissions: “Usually, results from continuous emission monitoring data are the preferred way to establish emissions. However, this is not often possible or practical, except for larger facilities such as electric utilities. Use of site-specific stack tests under a single or a range of representative conditions is usually the next preferable method.”  28 After receipt of the initial petition and first supplement, the EPA requested that the petitioners provide HAP emission measurements from stack testing to corroborate the HAP emissions estimated by the petitioners based on emission factors and fuel content analyses, where possible. In response to the EPA's request, however, the petitioners indicated via email that a “detailed measurement campaign is out of the scope for this study.”  29

In multiple instances, the petitioners' emission estimates were based on permit limits or emission factors of other pollutants (VOC and PM) that were then used to approximate the emissions of organic HAP ( e.g., formaldehyde) and metallic HAP ( e.g., arsenic). This introduces further uncertainty in the emission estimates for this source category. Moreover, the petitioners stated in the petition that “combustion turbines' PM emissions are not a strong predictor of metallic HAP emissions.” Regarding arsenic, in the 2020 RTR, arsenic emissions were one of the primary drivers for risk at sources firing distillate oil. The petitioners stated that metallic HAP emissions from oil-fired turbines are constituents of the fuel, and that the arsenic emissions estimated by the EPA for the 2020 RTR were biased upward because “regulations requiring lower sulfur content for diesel fuel have resulted in lower arsenic content, if any, for these fuels, because the techniques used to remove sulfur from fuels necessarily remove metals such as arsenic also.” One example of such regulation is the 15 parts per million by weight (ppmw) sulfur standard for ultra-low sulfur diesel fuel in 40 CFR 1090.305. The petitioners, however, did not provide references supporting the statement that the arsenic content in ultra-low sulfur diesel fuel is universally lower or documenting that stationary combustion turbines in the source category are required to use ultra-low sulfur diesel fuel. Rather, the new source performance standards (NSPS) for stationary combustion turbines (units constructed, modified, or reconstructed after February 18, 2005) require the use of only fuel having a sulfur content that is equivalent to a sulfur dioxide content less than 0.06 pounds per million British thermal units (lb/MMBtu) ( i.e., approximately 500 ppmw of sulfur content in distillate fuel oil) for turbines located on the continent and 0.42 lb/MMBtu (4,000 ppmw) for turbines in non-continental areas (71 FR 38497; July 6, 2006 and 40 CFR part 60, NSPS subpart KKKK, at 40 CFR 60.4300). Notably, permitted thresholds for stationary combustion turbines vary, but the source identified to have the highest cancer risk in the 2020 RTR is permitted to combust diesel fuel with a sulfur content up to 1,500 ppmw (permit available in the docket to this rulemaking, Docket ID No. EPA-HQ-OAR-2020-0408), which further demonstrates that there is no assurance that turbines are using ultra-low sulfur diesel fuel.

The petitioners also provided summary fuel analysis reports from a few stationary combustion turbines in the source category. In those cases, fuel arsenic concentrations reported by the petitioners were below the limit of detection of the instruments. The petitioners, however, did not provide any information regarding the methods and procedures that were used for the fuel sampling and the determination of the detection limits for arsenic. Instead, results were only indicated by a qualitative statement that the measurement was below the limit of detection. Additionally, raw data were not provided. After receipt of the first supplement to the petition, the EPA asked the petitioners to provide more detail regarding the methods used for the fuel measurements, including calibration data and information on the determination of non-detects. 30 The petitioners indicated that such information would be provided, but the second supplement only included more summary fuel sampling results and did not provide the more detailed information requested by the EPA. Without this information, the EPA cannot evaluate whether the quality of the data is adequate or assess whether the detection limits are accurate and, therefore, cannot determine whether the arsenic emissions estimated for these facilities are representative of their actual emissions.

Formaldehyde was the HAP emitted in the largest quantities from stationary combustion turbines evaluated in the EPA's 2020 risk analysis (see Table 3.1-1 of Risk Report). An examination of the formaldehyde emission rates measured during the CAA section 114 testing showed emissions that are significantly higher for some turbines than those estimated in the petition analysis (as well as the 2020 RTR). For instance, formaldehyde emissions at the two landfill gas-fired turbines at the BMW Manufacturing facility averaged 0.28 lb/hour (for unit GT05) and 0.65 lb/hour (for unit GT06) during the CAA section 114 testing. Multiplying the hourly emission rate by the highest annual hours of operation on 100 percent landfill gas for the turbines reported for the CAA section 114 request, which occurred in the year 2016, yields annual formaldehyde emissions of 0.80 tons/year for unit GT05 and 1.85 tons/year for unit GT06. The formaldehyde emissions assumed for those units in the petition analysis were 0.0096 tons/year for each turbine. The measured emissions were 80 times higher than estimated for unit GT05 and 190 times higher than estimated for unit GT06. A similar analysis of the formaldehyde emissions for units 7 and 8 at Northern Natural Gas's Waterloo Compressor Station showed that the measured formaldehyde emissions were 31 times (unit 7) and 18 times (unit 8) higher than the estimated emissions. 31 These differences in the measured formaldehyde emissions versus the petitioners' estimated formaldehyde emissions demonstrate that the petitioners' data are not adequate for purposes of the Administrator's determination under CAA section 112(c)(9)(B).

These higher measured formaldehyde emissions may also indicate that the EPA's finding in the 2020 RTR of a maximum individual lifetime cancer risk for the Stationary Combustion Turbines source category of 3-in-1 million may be a significant underestimation. But the EPA has also long acknowledged that the maximum individual lifetime cancer risk, under CAA section 112(f)(2), “does not necessarily reflect the true risk, but [rather] displays a conservative risk level which is an upper-bound that is unlikely to be exceeded.”  32 Moreover, as previously explained, for delisting source categories that emit carcinogenic HAP, CAA section 112(c)(9)(B)(i) sets a lifetime cancer risk to the most exposed individual threshold of 1-in-1 million, which differs significantly from the acceptable risk determination for standards promulgated under CAA section 112(f)(2), where a lifetime cancer risk to the most exposed individual of 100-in-1 million is ordinarily the upper bound of acceptability. And, ultimately, sources would remain subject to standards promulgated under CAA section 112(f)(2) in contrast to removal of all CAA section 112 regulatory requirements if the EPA grants a delisting petition under CAA section 112(c)(9)(B). 33

The acute multiplier used by the petitioners to assess the health impacts from short-term exposures to HAP emissions for two facilities is not adequately supported by the evidence. As discussed previously, the risk analyses for both the 2020 RTR and the petition evaluated the acute health risks posed by actual baseline emissions. To assess the potential health impacts from short-term exposures, the petitioners estimated worst-case 1-hour HAP emission rates (“acute emissions”) from each turbine included in their analysis. For most sources, the petitioners' analysis used an acute multiplier of 10 times the average annual hourly emission rate for each turbine. Use of this value is consistent with the acute multiplier used by the EPA in the 2020 RTR, as discussed in the March 6, 2019, memorandum titled Review of the Acute Multiplier Used to Derive Hourly Emission Rates for the Stationary Combustion Turbines Risk Analysis that reviewed the acute multiplier and that is available in the docket for the Stationary Combustion Turbines RTR (Docket ID No. EPA-HQ-OAR-2017-0688-0070).

As discussed in the memorandum, the basis for the use of a default acute multiplier of 10 in the 2020 RTR is a study of short-term emissions variability in a heavily industrialized four-county area in Texas. 34 At the time of the RTR proposal, the EPA evaluated the suitability of the default acute multiplier of 10 by reviewing available stack test data for formaldehyde emissions from stationary combustion turbines to determine the variability of hourly test runs. To determine the emissions variability, the average formaldehyde concentration for each unit was calculated using all available valid stack test data for that unit, and then the concentration of formaldehyde for each hourly test run was divided by that unit's average to determine the run-to-average emissions ratio. The highest run-to-average ratio in the EPA's analysis for the 2020 RTR was 6.7. For two facilities, Salinas River Cogeneration and Sargent Canyon Cogeneration, the petitioners stated that using the EPA's default ratio of 10 in their analysis yielded acute hazard quotients exceeding 1. The petitioners then used a value of 2 for the acute multiplier in their analysis for those two facilities and justified this based on the ratio of hours in the year to annual operating hours at those facilities, rather than on information regarding worst-case emissions data. The petitioners did not provide any information to show how a comparison of the hours in the year to annual operating hours was relevant for an analysis of potential worst-case 1-hour HAP emission rates or how a multiplier of 2 was more valid than the multiplier used for the 2020 RTR, which was based on actual hourly emissions data. The EPA believes that the petitioners' approach does not adequately account for spikes in emissions and variability in emission rates at non-baseload conditions ( e.g., startup, part-load operation). At lower loads, more incomplete combustion may occur and result in proportionately greater organic HAP emissions. Furthermore, the oxidation catalysts used to control organic HAP emissions for some turbines may not operate effectively during startup until the catalyst reaches its appropriate operating temperature.

After receipt of the initial petition and the first supplement, the EPA discussed these issues with the petitioners. The petitioners indicated that they would provide an expanded justification for the use of an acute multiplier of 2. 35 The discussion of the acute multiplier for Salinas River Cogeneration and Sargent Canyon Cogeneration in the second supplement did not address the questions raised by the EPA. Instead, it just restated the petitioners' previous justification for using the ratio of hours in the year to annual operating hours. Therefore, the petitioners have not adequately demonstrated that an acute multiplier of 2 is appropriate for the turbines at the Salinas River Cogeneration and Sargent Canyon Cogeneration facilities and, therefore, that the hazard quotients for those two facilities are below 1.

As previously noted, emission estimates in the petition analyses were primarily based on emission factors and historical fuel usage data. For the purposes of determining whether the delisting criteria under CAA section 112(c)(9)(B) are satisfied, risk evaluations must be based on emission estimates that assume the controls required under CAA section 112 are not in place unless they are also known to be required under a different regulatory authority. This is because deleting a source category from the list of major sources would result in removal of the regulatory requirements specified in the applicable NESHAP. However, the petitioners' emission estimates for those units with oxidation catalyst were based on controlled emissions, and the petitioners did not specify whether those oxidation catalysts were installed to meet the Stationary Combustion Turbines NESHAP or to satisfy regulatory requirements under other EPA programs ( e.g., new source review (NSR) or prevention of significant deterioration (PSD) permits). 36 As a result, the petitioners did not explain—and the EPA was not able to determine based on the information submitted—whether the emissions estimates and risk assessment presented by the petitioners account for potential increases in emissions that might result from delisting the Stationary Combustion Turbines source category.

Regarding HAP emissions, in addition to the deficiencies discussed in section IV.C., the emission estimates in the information submitted by the petitioners do not include several HAP that have been demonstrated to be emitted by stationary combustion turbines and do not include one-fourth of the turbines in the source category. As discussed in section III.C., the EPA required testing of stationary combustion turbines to obtain data on emissions of formaldehyde, acid gases (hydrogen fluoride and hydrogen chloride), and metallic HAP. The emissions testing showed that there are measurable emissions of metallic HAP from turbines operating on natural gas and landfill gas. The risk analysis submitted by the petitioners did not include metallic HAP emissions for natural gas and landfill gas turbines. Several metallic HAP (arsenic, cadmium, lead, and mercury compounds) and acid gases are included in both the EPA's health risk analysis and screening for adverse environmental effects.

Regarding the universe of affected sources, the EPA has identified an additional 245 turbines that are subject to the Stationary Combustion Turbines NESHAP that were not included in the petitioners' risk analyses. These additional turbines include units that are owned and operated by companies that are members of the organizations that submitted the petition to delist. 37 The EPA has identified a total of 1,015 turbines that are subject to the NESHAP. Hence, the petitioners' analyses do not account for nearly one-fourth of the turbines that are subject to the Stationary Combustion Turbines NESHAP. This contrasts with, for example, the delisting of the non-mercury cell chlorine production subcategory where the EPA “obtained chlorine and HCl emission estimates from every known major source facility in the non-mercury cell chlorine production subcategory using our authority under section 114 of the CAA and conducted risk assessments for each facility.”  38 As previously noted, a petitioner must provide a detailed assessment of the available data concerning the potential adverse human health and environmental effects and the potential for human and environmental exposures from the source category that is to be delisted. Such data must demonstrate that no source in the category or subcategory emits HAP in quantities which may cause a lifetime risk of cancer greater than 1-in-1 million to the individual in the population who is most exposed to emissions of such pollutants from the source or that no source in the category exceeds a level which is adequate to protect public health with an ample margin of safety and no adverse environmental effect will result from emissions from that source category.

The EPA is denying the petition because the EPA has determined that the petition is incomplete. The petitioners did not address all the necessary subject areas under CAA section 112(c)(9)(B) and did not present adequate information and analyses for the requested determination. As stated previously, CAA section 112(c)(9)(B)(i) requires the EPA to determine that no source in the category emits HAP in quantities which may cause a lifetime risk of cancer greater than 1-in-1 million to the individual in the population who is most exposed to emissions of such pollutants from the source. Here, the petition and all the supplements to the petition did not include HAP emissions measurements for all of the HAP emitted by the Stationary Combustion Turbines source category. 39 The risk analysis submitted by the petitioners did not include metallic HAP emissions for natural gas and landfill gas turbines, which the CAA section 114 information request results demonstrated are emitted from turbines operating on both natural gas and landfill gas. Further, the petitioners' analyses did not include nearly one-fourth of the stationary combustion turbines that are subject to the Stationary Combustion Turbines NESHAP. For the fuel sampling data and the acute multiplier, the petitioners did not provide information requested by the EPA that is necessary to evaluate the adequacy of the data. The EPA also afforded petitioners opportunities to address the above referenced identified gaps in the data and information underpinning their petition, which petitioners declined. For these reasons, the EPA cannot conclude that the petitioners have demonstrated that the maximum individual lifetime cancer risk from all stationary combustion turbines subject to CAA section 112 is less than the 1-in-1 million delisting threshold under CAA section 112(c)(9)(B)(i).

The EPA construes CAA section 112(c)(9)(B)(i) as calling for the Administrator to make a determination that the criteria for delisting are satisfied. Any such determination must be supported by measured emissions data or otherwise reasonably account for operational variability. 40 This is because delisting of a source category would result in the removal of applicable regulatory requirements under CAA section 112 for such source category. The EPA cannot grant a petition to delist a source category if there are major uncertainties that must be addressed for the EPA to have sufficient information to make the requisite substantive determination, under CAA section 112(c)(9)(B)(i). And the burden remains on a petitioner to demonstrate that the available data support an affirmative determination that HAP emissions from a source category may not be reasonably anticipated to result in adverse effects on human health or the environment. See American Forest and Paper Ass'n v. EPA, 294 F.3d at 119 (“The statutory language unambiguously places on a delisting petitioner the burden to make a showing that there is adequate data about a substance to determine exposure to it may not reasonably be anticipated to cause adverse effects.” (Emphasis in original; cleaned up)).

In addition to the incompleteness of the petition, the EPA's technical review identified major uncertainties in the emission estimates provided by the petitioners that are an additional and separate independent basis for denial of the petition. The results of the 2020 RTR risk analysis (based on actual emissions), under CAA section 112(f)(2), indicated that the estimated maximum individual lifetime cancer risk is 3-in-1 million. The petitioners' analyses contained in their submittals claimed a maximum individual lifetime cancer risk of 0.76-in-1 million as support for their petition to delist under CAA section 112(c)(9). But the petitioners' analyses, which included revised HAP emission estimates and a revised evaluation of the 2020 RTR risk analysis, were primarily based on emission factors and historical fuel usage data for a subset of the turbines that are subject to CAA section 112.

The petitioners also did not include any stack testing on the turbines that they analyzed to determine actual emissions. As stated previously, emission factors do not provide sufficient certainty regarding site-specific emissions that would provide confidence that no source in the category exceeds the criteria for delisting. In addition, the CAA section 114 emissions testing showed actual formaldehyde emissions for some turbines that are significantly higher than those estimated by the petitioners. Lastly, the petitioners did not explain whether the emission estimates they relied on would continue to be applicable if the EPA were to delist the source category. Overall, and as shown in section IV., the petitioners did not provide sufficient data or analyses for the purpose of estimating maximum offsite pollutant concentrations that would enable the Administrator to make the substantive determination contemplated by CAA section 112(c)(9)(B). 41

The EPA has concluded that the available evidence is inadequate to support a determination that no source in the Stationary Combustion Turbines source category emits such HAP in quantities which may cause a lifetime risk of cancer greater than 1-in-1 million to the individual in the population who is most exposed to emissions of such pollutants from the source category as called for under CAA section 112(c)(9)(B)(i). Because the petition is denied under CAA section 112(c)(9)(B)(i) for the reasons stated above, the EPA finds that it is not necessary to make any determinations as to whether any source in the category exceeds a level which is adequate to protect public health with an ample margin of safety and presents adverse environmental effects under CAA section 112(c)(9)(B)(ii).

For the reasons stated in this section, the EPA concludes that the petitioners have not demonstrated that the Stationary Combustion Turbines source category may be delisted under CAA section 112(c)(9)(B)(i). This means that the petitioners have failed to meet the delisting criteria outlined in CAA section 112(c)(9)(B)(i), and the EPA must deny the petition. Finally, because the EPA has determined that the petitioners did not address all the necessary subject areas under CAA section 112(c)(9)(B) and did not present adequate information and analyses for each of the subject areas, the EPA is denying the petition with prejudice. Any future petition to delist will be denied as a matter of law unless such future petition is accompanied by substantial new information or analysis.

This is a summary of the Commission's FNPRM, FCC 24-35, adopted March 27, 2024 and released April 2, 2024. The full text of this document is available by downloading the text from the Commission's website at: https://docs.fcc.gov/public/attachments/FCC-24-35A1.pdf.

Paperwork Reduction Act of 1995 Analysis: This document proposes new or modified information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens and pursuant to the Paperwork Reduction Act of 1995, Public Law 104-13, invites the general public and the Office of Management and Budget (OMB) to comment on these information collection requirements. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the Commission seeks specific comment on how it might further reduce the information collection burden for small business concerns with fewer than 25 employees.

Providing Accountability Through Transparency Act: Consistent with the Providing Accountability Through Transparency Act, Public Law 118-9, a summary of this document will be available on: https://www.fcc.gov/proposed-rulemakings.

1. In a notice of proposed rulemaking (NPRM) adopted on December 1, 2020, and published on January 11, 2021, at 86 FR 1909, the Commission sought public comment on a proposal by GeoBroadcast Solutions, LLC (GBS) to allow a new use for FM booster stations. FM boosters are low power, secondary stations that operate in the FM broadcast band. They must operate on the same frequency as the primary station, and have been limited to rebroadcasting the primary station's signal in its entirety ( i.e., no transmission of original content). Historically, the sole use of FM boosters has been to improve signal strength of primary FM stations in areas where reception is poor due to terrain or distance from the transmitter. GBS developed technology designed to allow licensees of primary FM and LPFM broadcast stations to geographically target a portion of their programming by using FM boosters to originate different content for different parts of their service areas. Stations might, for example, use the technology to air hyper-local news and weather reports most relevant to a particular community. Stations also might air advertisements or underwriting acknowledgements from businesses that wish or can only afford to focus their reach on small geographic areas, thereby enhancing the stations' ability to compete for local support. Such program origination over boosters cannot be accomplished on a permanent basis under existing rules.

2. Upon consideration of comments both supporting and opposing the GBS proposal, the Commission concluded that program originating boosters would serve the public interest if properly engineered and subject to various safeguards. In the concurrently adopted R&O, the Commission authorizes program originating boosters in the near term under part 5 of the rules (47 CFR 5.1 to 5.602), which pertains to experimental use of new technologies. FM and LPFM broadcasters will have the flexibility to use FM boosters to originate geographically targeted programming on a voluntary basis for up to three minutes per hour. However, the R&O notes that permanent use of program originating boosters cannot commence until the Commission adopts additional rule changes and establishes details for implementing safeguards to address concerns raised in the record. Accordingly, the Commission has adopted the FNPRM, which proposes and seeks comments on such rule changes and asks additional related questions.

3. To address concerns in the comments about the potential impact of program originating boosters on existing FM service, the R&O concludes that it is imperative for the Commission to adopt a notification requirement for program originating boosters. This would enable the Media Bureau to keep track of which stations are using boosters to originate content and to respond to any complaints that may arise. The FNPRM proposes to require broadcasters originating programming on a booster to file a notification 15 days prior to commencing origination. The proposed rule would also require broadcasters that permanently discontinue originating programming on a booster to file a notification within 30 days after termination. The Commission seeks comment on this proposal and the proposed text of 47 CFR 74.1206 set out in appendix C of the FNPRM. Would the information collected in the proposed FM Booster Notification constitute “data assets” for purposes of the OPEN Government Data Act, Public Law 115-435 (2019)? If so, would the collected information constitute “public data assets” as defined in 44 U.S.C. 3502 (22)? Is there any reason the Commission should not make such information publicly available?

4. Section 74.1204(f) of the rules (47 CFR 74.1204(f)) addresses claims of predicted interference outside a protected station's contour when a translator station construction permit application is pending. Unlike the actual interference rule in § 74.1203, which addresses both translator and booster stations, the predicted interference rule in § 74.1204(f) addresses only translator stations. The FNPRM seeks comment on whether to modify § 74.1204(f) to include a mechanism to address predicted interference while booster construction permit applications remain pending. The Commission believes this will help ensure that broadcasters do not invest in developing booster stations that will cause interference that must be resolved under § 74.1203 once the booster commences broadcasts. It also proposes to apply this new mechanism to any booster applications that are pending at the time the modifications to § 74.1204 are adopted. The Commission seeks comment on these proposals.

5. The FNPRM seeks comment on whether the Commission should adopt a requirement that broadcasters synchronize their primary station and booster signals to reduce and eliminate self-interference. GBS's engineering consultant emphasized in the comments that synchronization is critical to successful booster implementation. One commenter, Anderson, emphasizes the importance for any booster system, but particularly those in a program originating system, to be synchronized in carrier frequency, pilot phase, and audio frames for analog FM. In the R&O, the Commission concluded that broadcasters have strong economic incentives to avoid self-interference to their primary station's signal. In light of that conclusion, it believes broadcasters deploying program originating boosters will employ a technology that uses synchronization. Is there any need to adopt a separate synchronization requirement as an additional safeguard? If the Commission were to adopt a synchronization requirement, what level of synchronization would be appropriate? Should the Commission adopt any standards with regard to synchronizing any or all of the elements discussed by Anderson? Would stations require new or specialized equipment to maintain proper synchronization or is that a routine part of existing booster station operations? Do station signals change enough to require constant monitoring and recalibration and if so, how does this affect our ability to develop and apply a standard? Or would a synchronization requirement impose an unnecessary burden on booster station operations? The Commission seeks comment on these questions.

6. The R&O requires program originating boosters to receive and broadcast all emergency alerts in the same manner as their primary station, and codifies this requirement by amending 47 CFR 11.11 to explicitly make all EAS requirements that are applicable to full-service AM and FM stations and LPFM stations equally applicable to program originating FM boosters. In its comments, the Federal Emergency Management Agency (FEMA) recommended a requirement that FM primary stations implementing program originating boosters must notify all EAS participants monitoring that primary station of the booster's program origination. The Commission seeks comment on this proposal. Does the Commission's proposal to require all program originating boosters to broadcast emergency alerts negate the need for this FEMA proposal?

7. As stated in the R&O, the Commission believes its requirement that program originating boosters broadcast all emergency alerts will ensure no disruptions to the EAS, but the Commission will monitor the rollout of program originating boosters to ensure they do not cause interruptions to the EAS. Should the Commission adopt any requirement for broadcasters using program originating boosters to report EAS-related problems or interference to the Commission? What would be the best means for broadcasters to provide this information to the Commission? Should it require that licensees also submit this information to FEMA?

8. The Commission proposes to clarify certain operational issues for program originating boosters. The FNPRM proposes to reorganize and clarify 47 CFR 74.1231 by changing the current Note to a new paragraph (j), which clarifies grandfathered superpowered FM stations will be able to implement booster stations only within the standard ( i.e., non-superpowered) maximum contour for their class of station. We believe this helps to minimize interference risks by further isolating program originating boosters from adjacent FM broadcast stations. Also, the FNPRM proposes to add a new paragraph (k) that requires booster stations to suspend operations any time their primary stations are not broadcasting and to file notices of suspended operations pursuant to § 73.1740 of the rules (47 CFR 73.1740). This change codifies more explicitly existing requirements. Finally, the Commission proposes to modify 47 CFR 74.1232 to clarify that a booster station may not broadcast programming that is not permitted by its FM primary station's authorization. This will ensure that program originating boosters are not used in a manner that is inconsistent with the primary station. The Commission seeks comment on the proposed rule changes. The FNPRM also takes this opportunity to remind broadcasters that licensees of noncommercial FM stations may not use booster stations for commercial broadcasts.

9. The FNPRM proposes to amend 47 CFR 74.1232(g) to limit full-service FM stations to 25 program originating booster stations. This cap on the number of program originating FM booster stations would represent a change from the current rule, which imposes no numerical limit on FM booster stations. The Commission is bound by Section 5 of the Local Community Radio Act of 2010, Public Law 111-371 (LCRA), to ensure when licensing new FM booster stations that “licenses are available” to FM translators and LPFM stations. The ability of other secondary service applicants to locate within an existing full-service FM station's service contour is ordinarily constrained by the full-service FM primary station itself. Despite this, the Commission does not yet know the extent of demand for program originating FM booster stations, nor the impact that potentially large numbers of such stations in a market could have on spectrum availability on adjacent channels where new FM translators and LPFM stations might conceivably wish to locate. Accordingly, it concludes in the R&O that a limit on the number of program originating boosters a station can operate may be needed to ensure that an increase in booster stations resulting from the decision to authorize program originating boosters is consistent with the LCRA.

10. The R&O notes that some commenters have expressed concern about the effect of additional boosters on the FM noise floor. Would a program originating FM booster cap address such concerns? The Commission tentatively concludes that a limit of 25 program originating boosters per full-service FM primary station is a reasonable compromise. In seeking comment on this number, the Commission also notes that imposing an artificially low number of program originating boosters could make it harder for licensees to design and deploy boosters in a way that minimizes the risks of interference. It does not propose an overall per market limit. The Commission seeks comment on these tentative conclusions as well as any alternative number for the cap. GBS studies evaluated geotargeting deployments with up to nine boosters. Thus, the Commission tentatively concludes that a 25 program originating booster station cap should not impose an undue burden on the rollout of this technology while at the same time ensuring consistency with the LCRA. It also seeks input on any alternatives. The Commission asks that any alternative proposals be accompanied by detailed justifications, as well as a discussion of the effect any alternative program originating booster cap or alternative approach to limiting program originating boosters might have on other stations, both full-service and secondary, and on the local FM noise floor generally.

11. The FNPRM also seeks comment on whether there are other requirements needed to ensure compliance with the LCRA. The R&O concluded that authorization of program originating boosters is consistent with the LCRA. However, the FNPRM seeks input on any remaining concerns about compliance with the LCRA. Currently, LPFM stations are permitted to originate programming 100 percent of the time, while FM translators and boosters do not originate programming. What difference, if any, does allowing some FM boosters to originate programming for five percent of each broadcast hour make to the relative status of the secondary services? The Commission seeks comment on these matters.

12. Additionally, in discussing any proposed LCRA-based requirements in licensing program originating FM booster stations, the Commission asks commenters specifically to enumerate the costs and benefits of their proposals or any alternatives set forth by commenters. This should include the costs of preparing any proposed application showings, or of licensing an FM booster in such a manner as to comply with the LCRA. Commenters should also quantify projected costs and benefits, identify supporting evidence and any underlying assumptions, and explain any difficulties faced in trying to quantify benefits and costs of the proposals and how the Commission might nonetheless evaluate them.

13. If program originating boosters are widely adopted, candidates and issue advertisers may seek to use program originating booster stations to target their message to particular subsets of a market, which has political broadcasting and recordkeeping implications. As an initial matter, the Commission tentatively concludes that, to the extent an FM booster station originates programming, it should be subject to the full array of political programming requirements that are applicable to full power broadcast stations. These obligations ensure that candidates for elective office have access to broadcast facilities and certain other media platforms and foster transparency about entities sponsoring advertisements. The FNPRM therefore proposes to adopt a new provision (47 CFR 74.1290) to make all political programming requirements applicable to program originating FM booster stations. It also proposes to require broadcasters originating programming on a booster to maintain a political file for the booster in the same political file as the booster's primary station. Thus, the Commission proposes to amend 47 CFR 73.3526 (online public inspection file of commercial stations) and 47 CFR 73.3527 (online public inspection file of noncommercial educational stations) to appropriately reflect the obligation of licensees of program originating FM booster stations to maintain an online political file for each such station. LPFM stations operating program originating boosters will need to maintain a physical political file consistent with existing requirements. The FNPRM invites comment on this proposal.

14. Political Files. Applying the full array of political programming requirements to program originating FM booster stations raises several additional issues on which the FNPRM seeks comment. First, it asks how licensees should comply with the political file requirements in 47 CFR 73.1943 and 47 U.S.C. 315(e) for program originating booster stations. For example, these sections require commercial licensees to maintain online political files for requests for the purchase of broadcast time by or on behalf of all legally qualified candidates for public office and by or on behalf of issues advertisers whose ads communicate a message relating to any political matter of national importance. The requirement applies to both full service noncommercial stations and LPFM stations to the extent that they make time available without charge for use by a candidate. What is the best location for records of such commercial and noncommercial use of broadcast time on a program originating booster station? The FNPRM notes that booster stations are not required to maintain a public file. Should records of political use of broadcast time on a program originating booster station be commingled with records of requests for the use of broadcast time on the licensee's primary station so long as they are appropriately labeled to identify the station on which the use was made? Alternatively, should licensees be required to create a political file subfolder for each of its booster stations into which it would place records of requests for the purchase or free use of broadcast time?

15. Would candidates and members of the public know that a political message that they have heard originated on a booster station (as opposed to the licensee's primary station) and know where to locate records of the message in the station's political file? How should LPFM stations, which are not currently required to have an online public inspection file, keep publicly available records of political use of their program originating boosters? For example, should they keep a physical file for the booster with the LPFM station's files consistent with requirements for political use of the LPFM station? The Commission invites comment on all of these questions and any additional issues that follow from requiring licensees to maintain records of requests for the purchase of political time and of time made available without charge for use by a candidate on their program originating booster stations.

16. Equal Opportunities. Targeted advertising also raises questions about how licensees should comply with obligations related to equal opportunities. Under 47 CFR 73.1941 and 47 U.S.C. 315(a), if a licensee permits a legally qualified candidate for any public office to use its station, it must, with some exceptions, permit all other legally qualified candidates for the same office to also use its station. Should candidates who are requesting equal opportunities in response to an advertisement or noncommercial announcement that was broadcast on a particular program originating booster station be entitled to use only that booster station, essentially treating individual booster stations and a licensee's primary station as separate facilities for equal opportunities purposes?

17. Reasonable Access. Similar questions arise with respect to how licensees should entertain requests for reasonable access by Federal candidates on program originating booster stations. Under 47 CFR 73.1944 and 47 U.S.C. 312(a)(7), commercial broadcast stations must permit candidates for Federal office to purchase reasonable amounts of advertising time. In determining what is “reasonable” for reasonable access purposes, should licensees treat their program originating booster and primary stations as separate facilities? For example, should the amount of time that a Federal candidate has purchased on a licensee's primary station affect the amount of time to which the same candidate is entitled to purchase on one of the licensee's program originating booster stations, and vice versa?

18. Candidate Rates. Program originating booster stations raise additional questions about how licensees should apply candidate rates. Pursuant to 47 CFR 73.1942 and 47 U.S.C 315(b), during the 45-day period preceding a primary or primary run-off election, and the 60 day period preceding a general or special election, stations must charge candidates in connection with their campaigns no more than the station's lowest unit charge for the same class and amount of time during the same period. In determining lowest unit charges, should licensees treat their program originating booster stations and primary stations as separate facilities? Is it reasonable to expect that the lowest unit rates on a licensee's program originating booster station would be different from the lowest unit rates on its primary station?

19. The FNPRM also seeks comment on whether to require vendors of program originating technology and patent owners in program originating technology to abide by the Commission's patent policy or any other guidelines common to open standards, which require that licenses be available to all parties on fair, reasonable and nondiscriminatory terms. Would such a step be necessary or an appropriate exercise of Commission authority in light of the fact that the Report and Order does not endorse a particular technical approach? Parties suggesting that we do consider any requirements should provide detailed information, including how long such requirements should last and our authority to adopt such requirements.

20. Are there any other non-technical safeguards on program originating boosters that might be useful? For example, two members of Congress who support geo-targeted content, nevertheless suggest that the Commission should consider requiring licensees of program originating boosters to certify that they are being responsive to needs and issues of their service areas, especially minority communities. This appears to be a response to concerns of a non-technical nature, such as the potential for redlining by advertisers or licensees. Although the Commission finds no current evidence of factors to cause redlining, it seeks comment on whether a safeguard in the form of a reporting condition might generally be useful to address non-technical concerns. If so, what information should licensees certify to, and how often?

21. The Commission, as part of its continuing effort to advance digital equity for all, including people of color, persons with disabilities, persons who live in rural or Tribal areas, and others who are or have been historically underserved, marginalized, or adversely affected by persistent poverty or inequality, invites comment on any equity-related considerations and benefits (if any) that may be associated with the proposals and issues discussed herein. Specifically, it seeks comment on how the FNPRM's proposals may promote or inhibit advances in diversity, equity, inclusion, and accessibility, as well the scope of the Commission's relevant legal authority.

22. The Commission will send a copy of the FNPRM including the IRFA, to the Chief Counsel for Advocacy of the SBA. A copy of this FNPRM and IRFA (or summaries thereof) will also be published in the Federal Register .

23. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Federal Communications Commission (Commission) has prepared this Initial Regulatory Flexibility Act Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in the FNPRM. Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments specified in the DATES section of this FNPRM. The Commission will send a copy of the FNPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). In addition, the FNPRM and IRFA (or summaries thereof) will be published in the Federal Register .

24. The FNPRM seeks further comment on processing, licensing, and service rules for program originating FM booster stations, or program originating boosters, which provide targeted programming to specific areas within their primary FM stations' service areas. Through the FNPRM, the Commission sets out a number of proposed changes to the rules, detailed in Appendix C, and seeks comment on these proposed rule changes.

25. In the FNPRM, the Commission proposes to retain the requirement that a booster station may cause only limited interference to its primary station's signal, but also proposes to eliminate the current rule provision barring any interference to the primary station's signal within the boundaries of the community of license. Additionally, the Commission proposes a notification requirement in which licensees of authorized booster stations will be required to file a notification of their intention to originate programming rather than implementing a separate application process for boosters that originate programming that could introduce greater delay for broadcasters seeking to operate such booster stations. The Commission also asks whether it should codify technical specifications for synchronization of the program originating booster's signal with that of the FM primary station, as well as whether imposing such a requirement would be an unnecessary burden on broadcasters.

26. In the Report and Order, we required program originating boosters to receive and broadcast all emergency alerts in the same manner as their primary station, by codifying this requirement through an amendment of § 11.11 of the rules (47 CFR 11.11). The FNPRM seeks comment regarding whether any additional requirements will be needed regarding the interaction of program originating boosters and the Emergency Alert System (EAS).

27. Additionally, the Commission proposes to add a new section to the rules (47 CFR 74.1206) requiring that a program originating booster formally notify the Commission through the Media Bureau's Licensing and Management System (LMS) of the commencement and suspension of operations. Other proposed rule additions and amendments include a requirement that a program originating booster suspend operations when its FM primary station suspends operations, and to so notify the Commission. The FNPRM also proposes that the programming originated by an FM booster station must conform to that broadcast by the FM primary station, e.g., a booster re-transmitting a noncommercial educational (NCE) FM station may also only broadcast NCE content. The FNPRM also seeks comment on whether information collected in the proposed FM Booster Notification constitutes “data assets” for purposes of the OPEN Government Data Act and, if so, whether the collected information constitutes “public data assets.”

28. The Commission further proposes to amend 47 CFR 74.1232(g) to limit each full-service FM station to using up to 25 FM booster stations. This cap represents a change from the current rule, which imposes no numerical limit on FM booster stations. This proposal is based on the decision in the Report and Order that a limit on the number of boosters a station can operate is needed to ensure that an increase in booster stations resulting from our decision to authorize program originating boosters is consistent with the Local Community Radio Act of 2010 (LCRA).

29. The FNPRM also addresses issues regarding political broadcasting. To the extent that political advertising may be broadcast over a program originating booster, the Commission proposes that such a booster station must follow all of the Commission's political broadcasting rules. These would include rules requiring the maintenance of an online political file, provision of equal opportunity and reasonable access to political candidates, and limiting the rates charged to political candidates for airtime. Finally, the FNPRM also asks whether vendors of these technologies should abide by the Commission's patent policy or any other guidelines common to open standards, which require that licenses be available to all parties on fair, reasonable, and nondiscriminatory terms.

30. The proposed action is authorized pursuant to sections 1, 2, 4(i), 7, 301, 302, 303, 307, 308, 309, 316, 319, 324, and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154, 157, 301, 302, 303, 307, 308, 309, 316, 319, 324, and 403.

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

32. Small Businesses, Small Organizations, Small Governmental Jurisdictions. Our actions, over time, may affect small entities that are not easily categorized at present. We therefore, describe three broad groups of small entities that could be directly affected herein. First, while there are industry specific size standards for small businesses that are used in the regulatory flexibility analysis, according to data from the Small Business Administration's (SBA) Office of Advocacy, in general a small business is an independent business having fewer than 500 employees. These types of small businesses represent 99.9% of all businesses in the United States, which translates to 33.2 million businesses.

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

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

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

36. The Commission estimates that as of September 30, 2023, there were 4,452 licensed commercial AM radio stations and 6,670 licensed commercial FM radio stations, for a combined total of 11,122 commercial radio stations. Of this total, 11,120 stations (or 99.98%) had revenues of $41.5 million or less in 2022, according to Commission staff review of the BIA Kelsey Inc. Media Access Pro Database (BIA) on October 4, 2023, and therefore these licensees qualify as small entities under the SBA definition. In addition, the Commission estimates that as of September 30, 2023, there were 4,263 licensed noncommercial (NCE) FM radio stations, 1,978 low power FM (LPFM) stations, and 8,928 FM translators and boosters. The Commission however does not compile, and otherwise does not have access to financial information for these radio stations that would permit it to determine how many of these stations qualify as small entities under the SBA small business size standard. Nevertheless, given the SBA's large annual receipts threshold for this industry and the nature of radio station licensees, we presume all of these entities qualify as small entities under the above SBA small business size standard.

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

38. The FNPRM proposes modified reporting requirements that, if adopted, may impact compliance requirements for small entities. The Commission seeks comment on whether FM licensees and permittees employing program originating boosters should provide notice through the Licensing and Management System (LMS) prior to commencing program origination, and whether it should similarly provide LMS notice when suspending operations. Should the Commission ultimately decide to adopt these requirements, they would likely result in a modified paperwork obligation for small and other entities. The Commission will have to consider the benefits and costs of allowing program originating booster licensees to submit certain notifications in LMS. If adopted, the Commission will seek approval of and submit the corresponding burden estimates to account for this modified reporting requirement. Additionally, small entities may determine they will need to hire professionals to comply with the rule changes proposed in the FNPRM, if adopted. We expect the comments we receive from the parties in the proceeding, including cost and benefit analyses, will help the Commission to identify and evaluate compliance costs and burdens for small businesses that may result from the proposed rules and additional matters discussed in the FNPRM.

39. The RFA requires an agency to describe any significant alternatives, specifically for small businesses, that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): “(1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for such small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small entities.”

40. The Commission has sought to minimize the economic impact on small entities, as well as consider significant alternatives and weigh their potential impact to those entities. In the FNPRM, we take the step of proposing to modify rules to facilitate limited program origination by FM booster stations.

41. In addition, the FNPRM seeks to avoid imposing additional burdens on small radio stations where practicable. For example, the FNPRM proposes to add a new § 74.1206 to the rules, which would prescribe LMS notification of the commencement or suspension of program originating booster service. The majority of Commission notifications in the media services are delivered through LMS, which is less burdensome than requiring separate mail or electronic mail notification. Further, our proposed rule also simplifies notification and certification requirements for broadcasters that permanently discontinue originating programming on a booster to file a notification of termination within 30 days. We believe that unlike other alternatives for compliance, this approach will provide adequate notice to the Commission while minimizing the regulatory burden for broadcast stations.

42. At this time, the Commission does not have supporting data to determine if there will or will not be an economic impact on small businesses as a result of the proposed rule amendments and/or additions. To assist in the Commission's evaluation of the economic impact on small entities, as a result of actions that have been proposed in the FNPRM, and to better explore options and alternatives, the Commission has sought comment from the parties. In particular, the Commission seeks comment on whether any of the burdens associated with the filing, recordkeeping and reporting requirements described above can be minimized for small entities. Additionally, the Commission seeks comment on whether any potential costs associated with our FM Booster Station requirements can be alleviated for small entities. The Commission expects to more fully consider the economic impact and alternatives for small entities following the review of comments filed in response to the FNPRM.

43. None.

44. It is further ordered that, pursuant to sections 1, 2, 4(i), 7, 301, 302, 303, 307, 308, 309, 316, 319, 324, and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154, 157, 301, 302, 303, 307, 308, 309, 316, 319, 324, and 403, the Further Notice of Proposed Rule Making is adopted .

44. It is further ordered that, pursuant to applicable procedures set forth in §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments on the further notice of proposed rulemaking in MB Docket No. 20-401 on or before thirty (30) days after publication in the Federal Register and reply comments on or before sixty (60) days after publication in the Federal Register .

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR parts 73 and 74 as follows:

The revisions and addition read as follows: